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Michael Helfand

Children of divorce can’t choose which parent they live with

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There’s a common myth that kids can simply pick which parent they want to live with after a divorce.  The reality is that it’s up to the parents, if they can agree, or the judge if they can’t. Until a child is 18, they don’t get to choose. If kids were in charge of the decision, you can imagine what their reasons would be. A 6-year-old would choose the parent with the most lenient video game rules, and a 15-year-old would choose the parent who doesn’t enforce curfews.

While it’s not entirely up to the kids, they do get to have their opinions. And depending on their age, the judge might let them express these opinions. There’s no set age, but if the judge believes they are mature enough to weigh in, he or she is allowed to take their wishes into consideration. It’s not the main factor, but rather one of the many factors, that goes into a final custody decision.

If the parents can’t agree, the judge’s main consideration will be the best interests of the child. It’s a somewhat subjective test, but it’s the law. The judge can take many factors into account in making his or her decision, including the wishes of the mother and father, the child’s relationship with each parent and any siblings, the child’s current community – school, home, support system, etc., as well as the child’s safety (any history of abuse will be an important factor), to name a few.

If you want to change a custody arrangement later on, you’ll have to go back to court and ask for what’s called a modification. In general, you have to wait two years from the custody decision to ask for modification in a contested case. It’s a tough road and modification is usually only allowed where there had been a substantial change in circumstances that directly affects the child or the current custodian has been shown to be unfit to retain custody. If both parents agree to a modification, however, they may be able to ask the judge sooner for a change in custody.

The key to getting a good outcome in any custody case is having an experienced custody attorney. It’s not just about the laws on the books, but about knowing the judge and how he or she generally rules on a particular issue. It’s about knowing the other attorneys and having a good reputation in the local legal community. It’s risky to handle a contested custody case on your own, especially if the other parent has an attorney fighting for their interests. Generally speaking, courts favor the current custody arrangement and are hesitant to keep making changes, so if you make a mistake you can’t just turn around and try again.

 

Joint custody doesn’t mean 50/50 on everything

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The term “joint custody” is often misunderstood to mean a 50-50 split in parenting time. However, “custody” doesn’t mean physical custody when used in this way. Instead, it’s referring to your ability to make parenting decisions when it comes to your child. Joint custody means that you and the other parent have equal decision-making power and must work together to make choices about the major things in your child’s life, such as education and religion.

Joint custody is awarded in cases where the parents are able to maintain some sort of relationship with each other. In other words, they are on speaking terms and can work together and reach an agreement as issues come up. If the two parents can’t talk without fighting and can’t agree on anything, then a judge is not likely to award joint custody. It would not be in the child’s best interest. Joint custody can be awarded regardless of whether the parents were ever married.

As for physical custody, that can be agreed upon by the parents or ordered by the judge. Many parts of a custody case can be decided by the parents, if they agree and if they are acting in the child’s best interest. The best interest of the child is the judge’s focus in these cases, and the law requires him or her to make it the priority.

The parent who doesn’t have primary physical custody can end up with a range of visitation arrangements, depending on where each parent lives, schedules at school and work, preference of those involved, and again, the best interests of the child. Unless there is a form of abuse happening, the court will aim to create a situation in which the child can have a close relationship with each parent. So, you can end up with joint custody for decision making and visitation for spending time with your child.

The other piece of the puzzle is child support. Joint custody does not rule out child support. A common outcome is that both parents share decision-making ability (joint custody), one has physical custody and the other has a visitation schedule and may also pay child support to the parent who has physical custody. But as you can imagine, there are many different scenarios and ways this can play out.

Joint custody, while important, is not the whole picture. If you believe it’s in your child’s best interest to live with you and that you are entitled to child support, then go after these things. If the other parent disagrees, we suggest getting an experienced family law attorney to help you present your case to the judge. This is especially important if the other parent has an attorney fighting for what they want.
If you have questions about your work injury or need help dealing with the insurance company, contact us. You can call us at (312) 346-5320 or (800) 517-1614, or fill out our online form. It’s free and confidential.

Written by Michael Helfand

See also: Can I change my child’s visitation schedule between my ex and me?

Federal crimes and possible penalties

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Federal convictions are quite serious. It is important to know that unlike a state prison where you can get time off for good behavior, if you are sentenced to a certain term in a federal prison, you will serve at least 85% of that term unless you are given a pardon or your conviction is overturned.

Federal crimes are those committed on federal property, crimes committed in more than one state, and violation of federal rather than state criminal laws. Some crimes fall under both state and federal laws and you could find yourself in either court system. The consequences of federal court are generally greater, in part because the sentences are more harsh and less flexible.

Other than prison time, possible penalties include loss of the right to vote, loss of the right to own a firearm or other deadly weapon, a monetary fine and/or parole. A judge may even order counseling. Plus, the conviction must be disclosed to future potential employers. It can be a long road not only during trial but during your prison term and even after you’ve served your time.

While the facts of the particular case will ultimately determine the punishment if you are convicted, some of the other factors that a judge will look at in determining a sentence include previous criminal convictions, mitigating circumstances such as whether you were present during the commission of the crime and even your character. As odd as it sounds, your sentence can also be increased because of your refusal to admit your guilt or your career choice (lawyers, politicians and law enforcement officials are held to a higher standard). On the flip side, letters of support, community involvement and the real harm you caused can also reduce the actual penalty.

The potential penalties are too severe to risk hiring an attorney who is not an experienced federal criminal attorney. In fact, it is very common to hire a new attorney for just the sentencing phase of the case alone because it can be so important and there are attorneys who focus their practice on just this phase of prosecution. Judges are bound by sentencing guidelines, but those guidelines are subjective, and a smart, experienced attorney can often be the difference between jail time and probation.

Please note that the federal government has been very aggressive in prosecuting cases recently and has been pushing for maximum prison sentences whenever possible. That does not mean that if you are convicted you will receive the maximum sentence, but it does underscore the importance of having an experienced federal criminal attorney if you are charged with a federal crime. It is important to have someone on your side with experience and knowledge of federal criminal procedure and its nuances and intricacies. Similarly, if you are involved in a high-profile case, you need an attorney who knows how to handle the publicity and attention these cases attract.

Finally, when looking a federal criminal defense attorney, make sure they have a good reputation. Someone who is respected by the prosecutors and the judge, and who is known for their knowledge of the law and strong client advocacy, is your best bet. If you need help finding an attorney who meets these criteria, let us know.

 

When surveillance is used in Illinois workers’ compensation cases

In Illinois workers’ compensation cases, the employer’s insurance company might decide to keep an eye on you, and they might use various forms of surveillance to do this. It’s not uncommon in claims that are expensive for the insurance company, such as those involving serious or permanent injuries.

The insurance company, not your employer, is paying your benefits. If you’re getting checks because you can’t work and reimbursement for medical expenses, it’s coming from the insurance company. All of this costs them money. Their goal, in using surveillance, is to see if you are really as hurt as you say you are. They might have an investigator follow you around. They might watch you while you’re shopping, playing with your kids at the park or doing yard work.

Basically, they’re hoping to catch you doing something you said you couldn’t do, or something your doctor said you should not do. They will then use this information to deny or stop your benefits. Common times to use surveillance are right before surgery (they hope to avoid paying for it) or at the settlement stage of your case if your injury is permanent and you can’t return to your old job. This generally makes your claim more expensive and they want to make sure it’s legitimate.

Generally, it’s legal for them to do this because the surveillance is done out in public. There’s not really a way to stop it, but there are things you can do to make the surveillance useless to the insurance company. First and foremost, you should always be honest about your injury. If you are as hurt as you say you are, then that’s a great start. That said, be extra careful if you think you are being followed.

Even if you are being honest, you can potentially put your benefits at risk by being careless. Follow your doctor’s orders. If you have a family to take care of, we realize this can be hard to do. If you have a back injury and you are told not to lift anything that weighs more than five pounds, don’t carry heavy grocery bags or do yard work. It’s inconvenient, but it could hurt your claim.

The majority of surveillance videos that the insurance companies take end up being useless because the people they’re following are legitimately injured and act accordingly. Don’t give them a reason to single you out. If they see that you are being honest, they’ll stop the surveillance because that, too, costs them money.

If you are injured at work, you are entitled to medical coverage and payment for lost wages. This is the law in Illinois. But keep in mind that the insurance company is a business. They may seem harmless on the phone and actually appear helpful, but paying out benefits is something they want to avoid if possible. Don’t give them a reason to deny your benefits. You don’t have to hide in your house, but be smart. Don’t play golf or basketball on the weekend if you are injured.

If you have questions about your work injury or need help dealing with the insurance company, contact us. You can call us at (312) 346-5320 or (800) 517-1614, or fill out the form to the right. It’s free and confidential.

 

Buying a Business in Illinois – The Most Important Thing

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A caller to our office was really mad because he had just bought a business and felt that he didn’t get what he had bargained for.  Seems that the company he is now running makes deliveries to grocery stores and their biggest client as of August was Dominick’s.

Perhaps the person that sold him the business knew that store was closing and that’s why he wanted to get out.  And if he had hid that information from the buyer then there might have been the basis for a commercial litigation lawsuit.  Maybe.

The problem is that this deal didn’t close until November and by then, the fact that Dominick’s was shutting their doors was common knowledge.  It was on the front page of all of the newspapers and all over the news.

But my caller was so focused on the excitement of owning his own company and getting what he believed to be a steal, that he ignored or somehow didn’t know about the store closings.

So he has a good business that is now worth about 70% less than it was when the stores were opened.  He thinks that the seller should give him a refund because in his mind the success of the company was misrepresented.  The problem is that the numbers that were given were from July and they were accurate for that time.  And beyond that, there is no way this gentlemen should have relied on those numbers once the closing became big news.

The most important thing to do in any business deal is your due diligence.  You can be given financial information, but you must verify it.  You can be told that a certain store is your biggest client, but you need to make sure that relationship will continue.  He should have called on these stores and asked of their future plans.  And of course he should have used the internet for research on them and their future.

The biggest mistake he made was not retaining an attorney.  A good business lawyer will take the emotion out of a situation and objectively tell you what to be aware of including doing your due diligence.  In a case like this, if an attorney hadn’t pointed out that Dominick’s was closing they’d probably be liable for a legal malpractice lawsuit.

I get why he was so excited.  Starting your own business and being your own boss is a great thing.  You must do it right though because if you try and fail, getting the chance to do it again will be much more difficult.  And even if he somehow did have the basis of a lawsuit now, that would mean thousands in lawyer fees and the litigation could takes a couple of years.  Had he just done his homework and made a thoughtful buying decision with his head instead of his heart, he would never have been in this position.  Or even better yet, perhaps he could have paid the true value of what the business is currently worth.

 

Legal tips for starting a business in Illinois

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  1. Sign a partner agreement. Even if you and your business partner have known each other for years and are on the same page, you’ll still want to put an agreement in place. The reason to do this is protect the business you’re working so hard to build. For example, if one of you needs to get out of the business because of something unexpected (illness, disability, death), then you want to have a plan for how that partner’s share of the business will be handled. The agreement also lays out the roles and responsibilities of each partner, which can avoid a big argument down the road. And if there is a disagreement at some point, your partner agreement can be a lifesaver if it includes a good framework for conflict resolution.
  2. Choose the best type of entity. Are you going to form an LLC or a corporation? Each one offers different pros and cons, so make sure you’re choosing the right one for your particular situation. An LLC is somewhat less formal of an entity. It has a simpler setup and allows you to share profits and losses more easily. However, it’s more expensive in Illinois. Formal incorporation is less flexible, but might be a better option if you have investors.
  3. Protect your ideas. “Intellectual property” is your ideas, designs, names, etc. You want to make sure you have ownership of your intellectual property, and at the same time that someone else doesn’t already own something similar that could cause a problem. You also want to make sure you have agreements in place so that individuals or other companies that you work with can’t steal your work.
  4. Get insurance. Workers’ compensation insurance is required for most businesses in Illinois and failing to get workers’ compensation insurance is a felony. Illinois law protects workers who are injured on the job, regardless of whose fault it is. If you end up on the hook for a case and you don’t have insurance, it could bankrupt you. There are other types of insurance you may need, as well, depending on the type of business you’re in.
  5. Be a good boss. Treat your employees the way you would want to be treated. Understand your obligations when it comes to employees, both legally and ethically. Investing in your workforce can really pay off.

 

Feeling overwhelmed? There are Illinois attorneys who focus their entire practice on helping people start businesses. We only recommend those who have tons of experience and a track record of success.  Give us a call or fill out the form to the right.  We’d be happy to provide a free consultation.

Written by Michael Helfand

Felonies vs. misdemeanors in Illinois

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Most people know that a felony is more serious than a misdemeanor, but what is the technical difference? And what about the different levels of felonies and misdemeanors?

A felony is defined as a crime that is punishable by a year or more in jail, while a misdemeanor is one that is punishable by less than a year. Both can, and often do, carry fines. Felonies range in severity from Class 4 up to Class 1, and there’s even a Class X for the worst crimes. Misdemeanors range from Class C up to Class A, which is the most serious.

Charges can be elevated on a second offense. Something that is normally a misdemeanor could become a felony. The specific circumstances of the crime – a child victim, for example – can do the same.

Many types of crimes come with a set sentencing range. For a Class X felony, for example, that range is 6 to 30 years in prison. For a Class 4 felony, the minimum is one year.
Usually, the goal of your attorney, no matter what type of criminal charges you are facing, is to get those charges reduced or dismissed.

Common outcomes in misdemeanor cases, especially those that are less serious or first offenses, are court supervision or probation. Many misdemeanors can be sealed or expunged from your record, although it can depend on what else is on your record and whether you have any additional run-ins with the law during the waiting period.

Felonies are typically thought of as violent crimes, although certain drug and theft offenses fall into the same categories. Felonies usually stay on your criminal record, with the exception of some specific Class 3 and 4 felonies. Conviction of a felony can mean prison time, as well as loss of certain rights. It’s important to hire an attorney with significant experience defending felonies if you are facing such charges.

In any type of criminal case, don’t hire an attorney who is just going to help you plead guilty, unless the decision to plead guilty is made deliberately after exploring all of your options. In other words, find someone who is going to fight for you and do everything they can to get the best outcome possible.  If you’d like our help in finding a lawyer please fill out the contact form to the right or call us at any time.

When landlords are responsible for crime on their property

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Your landlord holds some responsibility for your safety. Most of the time, landlord liability stems from the condition of the building and the duty to make necessary repairs to protect tenants from dangerous conditions. But in addition, some landlords have been held liable for criminal acts by a third party. This would cover situations where a stranger comes onto the property and commits a crime against you.

In cases where a landlord has been held responsible for crimes that happen on their property, it’s often because they took safety measures but didn’t do a good job in doing so. It’s one of those aspects of the law that doesn’t always make sense. A landlord who does nothing to ward off crime usually has no responsibility if crime happens, but landlord who put up security cameras or installed extra lighting can be responsible if their safety measures fail.

In order to have a successful case against a landlord, you have to show that they owe you a duty of care. Once that is established, you have to prove that the duty was broken by their actions or inactions. As in any personal injury case, you also have to prove that you were harmed and that the harm was caused by the landlord’s breach of duty. Finally, you have to prove your damages, which is the amount of your suffering in monetary terms.

Many landlords carry insurance to protect them in the event of a lawsuit. This is good news because it means that there is money to collect, even if your landlord doesn’t have any assets of their own. The not-so-good news is that insurance companies are good at defending lawsuits because it’s how they make money. If you’re going up against an insurance company, having an experienced attorney preparing your case can make a big difference.

Injuries caused by criminals on your landlord’s property are personal injury cases (there may be a criminal case against the perpetrator, as well, but that is separate). In personal injury cases, attorneys charge on a contingency basis, which means that you pay out of your winnings at the end. You do not have to pay any fees upfront or as the case progresses. And if you lose, you won’t pay a fee.

If you have questions about landlord liability, either after a crime or in another type of injury, feel free to give us a call.

Written by Michael Helfand

Dog bite lawsuits in Illinois

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Millions of people are bitten by dogs each year, and those who are most at risk include children and seniors. Not every dog bite leads to a lawsuit, but some bites can be serious, causing permanent injury and scars. In these situations, legal action may be required in order for the victim to get compensated for medical bills and other losses caused by the bite or attack.

Most homeowners’ insurance policies cover the situation where a dog of a homeowner bites someone who is visiting or on their property, meaning that the insurance company would be the one paying the victim. If there is such a policy in place, the victim likely will be dealing with the insurance company rather than the dog owner in a lawsuit. It’s recommended that dog bite victims hire an attorney to deal with and negotiate with the insurance company on their behalf.

In some states, a dog owner isn’t liable the first time their dog bites someone. It’s called the one-bite rule, with the idea being that the dog owner couldn’t have known to take precautions with their dog because they didn’t know the dog was dangerous. In Illinois, however, a dog owner doesn’t get a pass. They can be liable the first time their dog ever bites or injures someone.

Dog bite lawsuits are more prevalent now than in the past. If you or your child has been bitten by a dog and your family is facing medical bills, extensive recovery time, long-term treatment, scarring or disfigurement, or any other harm, talk to an attorney about holding the dog owner responsible. If you can prove fault, you should be able to collect money from the owner’s insurance company if not the owner themselves.

Written by Michael Helfand

The best way to collect a debt in Illinois

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When a business or individual owes you money, it can be difficult to collect. It can be awkward and frustrating, and sometimes you’re too busy to constantly follow up on past-due payments. Here are a few tips on collecting a debt in Illinois.

 

  1. If you haven’t already done so, make several attempts to collect your money. It might not work, but it’s worth a try. Put your requests in writing, and include a clear deadline for payment. When it becomes clear that you need to do more, call in help.
  2. Contact an attorney who knows what they’re doing to help you demand payment. A letter on your attorney’s letterhead can be just the thing to get the bills paid. Usually a demand letter also includes a consequence for not paying by a certain date – legal action.
  3. Your attorney can file a lawsuit as soon as you wish in most cases. In fact, if you’ve tried to collect the debt and failed, you might want your attorney to skip right to this step.  Many of the lawyers we recommend will work on a contingency basis which means that they only get paid if they actually make a recovery.
  4. If the debtor doesn’t respond to the lawsuit, you win automatically. They only have a certain amount of time to respond and a chronic debtor might let the deadline come and go. This means that you will get a judgment in your favor. You win. The court says that the other side must pay.
  5. However, the existence of a judgment doesn’t mean a check will come in the mail. You might have to force payment. The judgment allows you to pursue wage garnishment, for example. An experienced debt collection attorney can help you determine whether the debtor is hiding assets to avoid paying, which is sometimes the case.

 

If it’s gotten to the point where you don’t know what else to do, it might be time to seek the help of a debt collection attorney who knows how to quickly and effectively collect what you’re owed. If you’re a business owner, unpaid invoices can put your business at risk. Contact us if you have questions.

Written by Michael Helfand

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