Friday, May 9, 2014

Interesting Postnuptial Agreement Case in Illinois

In re Marriage of Iqbal

Illinois Appellate Court

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2014/2ndDistrict/2131306.pdf

Postnuptial agreement (PNA) signed by parties was unenforceable as it violates public policy. PNA gives counselor sole power to determine which parent will have custody of children, as counselor has sole power ot declare whether party seeking divorce is doing so reasonably, and is sole arbiter of whether either party has violated any part of PNA so as to forfeit any claim to custody. PNA is substantively unconscionable, and thus unenforceable, as its terms are significantly one-sided. Court's grant of sole custody to wife not against manifest weight of evidence, as husband often spoke negatively of wife and was found likely to interfere with children's relationship with wife.(ZENOFF, concurring; BURKE, specially concurring.)






Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Thursday, March 20, 2014

Eavesdropping Statute

People v. Clark (PDF) and People v. Melongo (PDF)

Today, in two separate decisions, People v. Clark, 2014 IL 115776, and
People v. Melongo, 2014 IL 114852, the Illinois Supreme Court considered
the constitutionality of several sections of the eavesdropping statute, 720
ILCS 5/14-2.  In each case, the Court unanimously held that the current
eavesdropping statute is unconstitutional because it is overly broad.

In Clark, the defendant recorded courtroom conversations involving himself,
his attorney and the presiding judge.  He also recorded a hallway
conversation with the adverse party's counsel.  Clark did not obtain
consent from any of the parties to record the conversations.  He was
indicted under the Illinois eavesdropping statute.  He filed a motion to
dismiss the indictment and argued that the section under which he was
charged violated his First Amendment rights and his right to substantive
due process.  The circuit court agreed and dismissed the indictment,
bringing the matter before the Supreme Court in the State's direct appeal
in defense of the legislation.

Writing for the Court, Chief Justice Garman noted that the Legislature
amended the eavesdropping statute in 1994 to prohibit the recording of any
conversation unless all parties consented, even if there were no
expectation of privacy.  Because this criminalizes the recording of a whole
range of conversations that cannot be deemed in any way to be private, and
because the legislation covers a broad array of wholly innocent conduct, it
is overly broad.  Having held that a substantial number of the statute's
applications are unconstitutional, the Court found it unnecessary to
address the remaining arguments.

In Melongo, which was not consolidated with Clark, but had been argued on
the same day, Chief Justice Garman, again writing for a unanimous Court,
stated that the Court's analysis was guided by its holding in Clark.
Again, the strictures of the statute were not found to serve any legitimate
interest in protecting conversational privacy, rendering the statute
unconstitutional on its face.




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Friday, February 14, 2014

Federal Judge Grants Class Action

2/12/14

Federal Judge Grants Class Action for all Medicaid-Eligible Children Under the Age of 21 who have been Diagnosed with a Mental Health or Behavioral Disorder in the State of Illinois Attorneys Robert H. Farley Jr., Michelle N. Schneiderheinze and Mary Denise Cahill have secured a major court ruling in the litigation against the State of Illinois for failing to comply with federal law which requires all Medicaid eligible children up to the age of 21 to receive diagnostic and treatment services to address their behavioral or emotional or mental health disorders. On February 13, 2014, United States District Court Judge John F. Tharp, Jr., in N.B., et. al., v. Hamos, Case No. 11-6866, ruled that the lawsuit filed by nine Medicaid-eligible youths (under age 21) who have been diagnosed with various mental illnesses and/or emotional or behavioral disorders, including developmental disabilities can proceed as a class action against the State of Illinois. Judge Tharp certified the class defined as follows: All Medicaid-eligible children under the age of 21 in the State of Illinois: (1) who have been diagnosed with a mental health or behavioral disorder; and (2) for whom a licensed practitioner of the healing arts has recommended intensive home- and community- based services to correct or ameliorate their disorders. The lawsuit against the State of Illinois alleges that the Illinois Medicaid program fails to meaningfully provide intensive community-based residential or outpatient care for children with mental illness and emotional or behavioral disorders, instead over-relying on hospitals to provide temporary acute care, followed by grossly inadequate outpatient services consisting of little more than medication management and one hour per week of counseling. Judge Tharp has scheduled a status hearing on this case on March 13, 2014.


READ THE OPINION




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2


Thursday, February 6, 2014

Be Careful with Settlement Agreements

Settling your Bloomington Illinois Divorce is almost always better than litigating. But, if you sign a Marital Settlement Agreement in Illinois, you had better be very careful as to what is, and is not, in that agreement, as this recent case from the Illinois Appellate Court points out:


In re Marriage of Chez (PDF)
Court properly found that joint property provision of parties' premarital agreement (PMA) was clear and unambiguous, even though it was silent on how to apportion costs in distribution upon dissolution. Parties, through PMA, agreed to opt out of coverage under Marriage Act and to set their own rules as to property. Court properly distributed two joint tenancy properties equally, and made no order of reimbursement of costs spent on one property, as PMA did not provide for it. Testimony of parties as to oral agreements is not relevant to interpretation of PMA, as PMA provides that any agreements as to real property must be written. (QUINN and PIERCE, concurring.)



Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2

McLean County Courthouse child-care room cuts hours

January 29, 2014 6:00 am  •  By Paul Swiech | pswiech@pantagraph.com



BLOOMINGTON — Less funding will mean reduced hours of operation for a service that helps to protect children while their parents are in court.

The Children’s Room, operated by Children’s Home + Aid in the McLean County Law and Justice Center, will be closed on Wednesdays and will close at 3 p.m. rather than 5 p.m. on the other weekdays, Tiffanny Powell, the agency’s family support services program manager, said Tuesday.

The cut will take effect next week.

“It’s really devastating to me to have to do this,” Powell said. “There will be children in the Law and Justice Center who will hear things that they shouldn’t.”

Judge Elizabeth Robb, chief judge of the 11th Judicial Circuit, noted that court proceedings can be long and harsh.

“Having a safe and child-friendly environment for children to play during court proceedings has been extremely beneficial to the children and to their parents and family members,” Robb said in a prepared statement. “We are very distressed to hear that, due to funding cuts, the hours of operation will have to be curtailed.”

The service includes three rooms for children up to age 12 whose parents have courthouse business, including those involved in domestic violence and child custody cases, Powell said. The service, staffed by an outreach worker, includes a nursery, toys and a computer station. In the fiscal year that ended June 30, 550 children used the service.

The service is supported by $5 from each civil case filed in McLean County as well as private donations. The service received $14,000 less from court filing fees last year because fewer civil cases were filed.

In addition, so far this fiscal year, private donations have dropped $3,000, said Angie Fulton of Children’s Home + Aid. The Children’s Room has an annual budget of $47,000.

Fulton hopes private donors can make up the difference.

“This is an unduplicated, needed service in our community,” she said.




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2



Friday, January 24, 2014

Right of First Refusal

The right of first refusal is now the law in Illinois for family law cases.  House Bill 2992 that went into effect January 1, 2014, amends the Illinois Marriage and Dissolution of Marriage Act.  The new 750 ILCS 5/602.3 specifically states that if the court awards joint custody or visitation rights, the court may consider, consistent with the best interest of the child, whether to award one or both parents the right of first refusal to provide child care for the child during the other party's parenting time.

For purposes of this statute, "right of first refusal," unless otherwise agreed upon by the parties, means that if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children.

If you have been following this act you will have noticed that the final language is actually different than how it was originally introduced in the Illinois legislature.  Originally, the proposed change would have been mandatory on the court and spelled out that the time frame had to be more than four hours before the act was triggered. The statute that is now in effect at least leaves it up to the judge's discretion as the final arbiter of the best interest of the child in a custody dispute, but it leaves the "significant period of time" in which this child care would take place open to interpretation.





Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2



Monday, January 20, 2014

Bloomington Illinois (McLean County) – Online Access

McLean County – Online Access


The McLean County Circuit Clerk and Circuit Court are pleased to announce that McLean County is now offering information on all open civil, traffic and criminal cases through their public access system. The link to the public access system is:


http://www.mcleancountyil.gov/index.aspx?nid=137


Please forward any questions or comments regarding on-line access to either Don Everhart, Circuit Clerk, or William Scanlon, Trial Court Administrator




Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2