Other

New Illinois Supreme Court Rule on Collaborative Law for Dissolutions of Marriage — DuPage County Family Law Attorneys Near Hinsdale and Oak Brook

August 16, 2018 | Peter S. Lubin and James V. DiTommaso

The Illinois Supreme Court recently adopted a new rule that allows couples going through a divorce to have lawyers work with the parties on a limited-scope to attempt a settlement while avoiding costly litigation.

Illinois Supreme Court Rule 294 (“Rule 294”) was adopted by the Court on June 8, 2018, and became effective on July 1, 2018. The new Illinois Supreme Court Rule is a result of the new Illinois law allowing for the collaborative process. 750 ILCS 90/1 Collaborative Process Act (“Collaborative Act”) became effective law in Illinois on January 1, 2018.

The Collaborative Act creates a new way for couples that have a dispute in relation to a: marriage, divorce, dissolution, annulment, legal separation, or property distribution. Also, the Collaborative Act can be a useful tool for a dispute regarding a: significant decision making and parenting time of children; maintenance and child support; adoption; parentage; and premarital, marital, and post-marital agreements.

The Collaborative Act was put in place to allow couples that have a legitimate dispute about a family issue, to have a quicker and more cost-effective way to resolve these issues. The Collaborative Act saves couples both time and money and allows for a back-and-forth of communication between the parties to reach a better result without the ruling of a judge. The Illinois legislature passed the Collaborative Act to give couples an alternative route from the court system. The Illinois court system has been viewed as slow to resolve family law issues or in some litigant’s opinions unfair to one of the parties. Continue reading ›

Illinois Guidelines for Statutory Maintenance are Inapplicable in Certain Proceedings — DuPage County Post Decree Family Law Lawyers

July 4, 2018 | Peter S. Lubin and James V. DiTommaso

The Illinois Guidelines for Statutory Maintenance are Inapplicable in Proceedings to Modify Maintenance that were Ordered before the Amendment Went into Effect.

Currently, maintenance in Illinois is governed by 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act. Recently, Section 504 was amended, and the amendment became effective on January 1, 2018, which increased the combined gross annual income to be less than $500,000 and has a guideline for the duration and amount of maintenance. If a couple that is going through a divorce has a combined annual income in excess of $500,000, then the court can set maintenance at any amount and for any duration as it deems necessary and appropriate. Also, when the couple has a combined gross annual income that is less than $500,000, the court can deviate from the guidelines of Section 504, but the court must make a special finding and disclose its special finding.

Recently, the Illinois Appellate Court decided, if a divorce took place prior to the Section 504 amendment and then a party petitions the Court after the amendment went into effect, the new guidelines do not apply to the modification of maintenance.

This groundbreaking case involved a Petitioner who filed for a dissolution of marriage in 2005, which is well before the amendment to Section 504 went into effect. At the time of Petitioner filing for divorce, the couple was married for nineteen years and nine months (just shy of twenty years). In 2007, the district court dissolved the parties’ marriage and in the court’s Order it ordered that the former husband must pay his former wife maintenance. Also, the court’s order disallowed modification of the maintenance award until the former wife reached the age of sixty-five. Later, both parties filed petitions to modify the maintenance award. The district court found that the Section 504 amendment should be applied to the former couples’ modification of the maintenance award. It was decided by the district court that the former husband’s petition for a reduction of maintenance was denied and that the former wife’s petition for an increase of maintenance was granted due to a substantial change of circumstances of the party’s financial situation. The former wife was granted permanent maintenance by the district court (which under Section 504 would typically only be awarded to a spouse that was in a twenty or more-year marriage). Continue reading ›

What is Considered Martial versus Non-Martial Property in Illinois? — Chicago Dost-Decree Father and Mother’s Rights Attorneys

July 3, 2018 | Peter S. Lubin and James V. DiTommaso

In Illinois when property is at issue during a divorce the court must first decide if the property in question is marital property or non-marital property. Then, the court can make the decision of who should get what or how the property should be split-up.

The Illinois Marriage and Dissolution of Marriage Act defines what property is to be considered “marital property” or “non-marital property”. 750 ILCS 5/503(a). For example, any property that is acquired as a gift, legacy, or in exchange for such property is considered non-marital property and would be the spouse’s sole property. The court in a contested divorce should not consider non-marital property when making a decision of who should get what at the end of the divorce.

Recently, the Appellate Court concluded that a former spouse’s real estate, which his nonmarital business was located on, was marital property. The business itself was nonmarital property, but the land where the business was on, was considered marital property. Continue reading ›

Illinois Guidelines for Statutory Maintenance –Wheaton and Hinsdale Divorce Attorneys

July 2, 2018 | Peter S. Lubin and James V. DiTommaso

Maintenance previously referred to as “Alimony” had a recent revamp in Illinois. Maintenance in Illinois is governed by 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act. Under the previous version of Section 504 the maintenance guidelines only applied to divorces when the couple had a combined gross annual income of less than $250,000. Section 504 was recently amended, and the amendment became effective on January 1, 2018, which increased the combined gross annual income to be less than $500,000.

As most couples in Illinois have a combined gross annual income that is less than half-a-million dollars, the amendment to Section 504 affects the vast majority of couples that are filing for divorce here in Illinois. If a couple that is going through a divorce has a combined annual income in excess of $500,000, then the court can set maintenance at any amount and for any duration as it deems necessary and appropriate. When the couple has a combined gross annual income that is less than $500,000, the court can also deviate from the guidelines of Section 504, but the court must make special findings and disclose the special findings. Continue reading ›

The Termination of a Father’s Parental Rights Based on Depravity — Oak Brook Attorneys Who Protect the Rights of Fathers in Family Law Disputes

June 30, 2018 | Peter S. Lubin and James V. DiTommaso

A recent ruling in the Illinois Appellate Court decided the controversial issue if a father was an unfit parent and should have his parental rights terminated.

The minor child A.F., allegedly suffered a fracture to her right femur and her left tibia by means other than accidental while in the care of her father. The State of Illinois filed charges against her father for subjecting A.F. to an environment injurious to her welfare due to the fractures the child suffered. Then, the State filed supplemental charges against A.F.’s father based on the allegations that “…the father having disregard for the minor’s pain or risks of moving the minor’s fractured limb.”

A.F.’s father stipulated to the allegations of the original petition, and that they could be proved by the preponderance of the evidence. That same day, the trial court entered an order finding that A.F. was neglected. Soon thereafter, the trial court entered an order finding the father unfit based on the physical abuse of A.F.

Also, these injuries that A.F. suffered gave rise to criminal proceedings against A.F.’s father. Initially, the father was charged with a Class X Felony of aggravated battery to a child, but based on a plea agreement, the father plead guilty to a Class 2 Felony of aggravated domestic battery. Based on the plea agreement, the Class X felony charge was dismissed, and the father was sentenced to a term of seven years in the Illinois Department of Corrections.

Then the State petitioned the court to have the father’s paternal rights terminated. The father’s paternal rights were petitioned to be terminated under 750 ILCS 50/1(D)(i), because the father was convicted of Aggravated Domestic Battery to a Minor. The father filed an answer to these claims and admitted to his conviction but claimed that he was rehabilitated and denied that it was in the best interest of the child to have his parental rights terminated. Continue reading ›

Illinois Appellate Court Ruling on Due Process Rights of Incarcerated Parents — Top DuPage County Family Law Lawyers

May 30, 2018 | Peter S. Lubin and James V. DiTommaso

Illinois Appellate Court Ruling on Due Process Rights of Incarcerated Parents

A recent ruling in the Illinois Appellate Court decided if an incarcerated father had his due process rights violated because he was unable to attend a hearing terminating his parental rights since he was in a federal correctional facility in Wisconsin.

Two very young children J.S. and T.S. were found home alone by the Rockford police in their mother’s home. J.S. (seven years old) stated to the responding officers that he sometimes would babysit his brother T.S. (one-year-old). During the investigation, police found marijuana, scales, and a BB Pistol at the unattended home. The Department of Children and Family Service took J.S. and T.S. under protective custody. At this time their father was already in a federal correctional facility in Wisconsin. The father was previously indicted and convicted of drug trafficking crimes and possession of a firearm in furtherance of drug trafficking crimes. The father had other prior convictions.

As a result of the incident, the State filed neglect petitions as to J.S. and T.S. The trial court was aware that the father was in Wisconsin due to his incarceration. The trial court appointed counsel to the children’s father and a writ of habeas corpus was issued asking the federal correctional facility to have the father delivered to the trial court, but the writ was denied. Typically, the federal government does not honor a state writ of habeas corpus. The mother of the children stipulated to one count of the neglect petition, which alleged that the minors were left unsupervised for an unreasonable period of time. The trial court concluded that J.S. and T.S. were neglected minors and DCFS was appointed as their legal guardian and custodian. Continue reading ›

Appellate Court Finds That Legal Malpractice Case Can Continue Against Estate Attorneys — Chicago Contested Probate Estate Attorneys

March 20, 2018 | Peter S. Lubin and James V. DiTommaso

When the millionaire owner of a thriving business dies without a will, leaving only a wife and a child from a previous marriage to sort out his possessions, chances are things are going to get ugly.

That’s exactly what they did in a recent case before the Illinois First District Appellate Court, which held that a law firm hired to represent the deceased’s widow and the estate also allegedly owed a duty to the estate itself and can be liable to the estate for alleged legal malpractice if the allegations in the malpractice lawsuit pan out.

The estate case was hotly contested and was ultimately settled. Alma and her counsel denied all of the claims and the court made no finding of wrongdoing.

The appellate decision outlines the disputed facts at issue as follows. Scott H. died intestate in 2005, leaving millions of dollars in assets including the then successful Chicago Minibus Travel, Inc., which became the chief source of dispute between his only heirs, his widow Alma and son, Kyle, from a previous marriage. Alma was appointed the Administrator of Scott’s estate and hired the defendant law firm to represent her.

Summary Judgment Inappropriate in Dispute Over Assignment of Legal Malpractice Claim

December 1, 2010 | Peter S. Lubin and James V. DiTommaso

Our Illinois legal malpractice attorneys were interested to see a recent decision allowing corporate litigants to assign their claims to former shareholders after a merger. Learning Curve International, Inc. v. Seyfarth Shaw LLP, No. 1-08-0985 (Ill. 1st June 18, 2009). In the underlying case, PlayWood Toys sued Learning Curve International for misappropriation of trade secrets. During that litigation, Learning Curve merged with RC2 Brands. Learning Curve settled that litigation, but then sued its attorneys in the matter and their law firms for legal malpractice. This claim gave rise to the dispute over assignment of claims.

Attorneys Dean A. Dickie and Roger L. Price represented Learning Curve in the PlayWood litigation, which began in 1995. Both attorneys were at the law firm of D’Ancona & Pflaum at the time, but due to personnel moves and mergers, Dickie was at Dykema Gossett and Price was at Seyfarth Shaw during the instant case. In April of 1998, PlayWood offered to settle its trade secrets claim for $350,000; Learning Curve counteroffered $225,000. There was no deal. A jury verdict reached in 2000 held Learning Curve liable for misappropriating the trade secret, but the judge granted a post-trial motion from Learning Curve for judgment notwithstanding the verdict, saying PlayWood had not proven the information at issue was a trade secret. PlayWood appealed to the Seventh Circuit.

While the appeal was pending, Learning Curve merged with RC2. As part of the merger, it agreed to indemnify RC2 from liability related to the PlayWood litigation. Learning Curve remained a separate corporation for tax purposes, but without separate operations. Five months later, the Seventh Circuit ruled, making Learning Curve liable for $6 million in compensatory damages and requiring a new trial on exemplary damages. Rather than face trial, RC2 settled with PlayWood for nearly $12 million, which came from an escrow account set aside for this purpose. RC2 and Learning Curve then agreed in writing to pursue a legal malpractice claim against the attorneys in the original case. This agreement gave former Learning Curve shareholders 90% of any proceeds, but explicitly said nothing in the agreement should be interpreted as an assignment of the claim or its proceeds.

RC2 and Learning Curve then sued Dickie, Price and all of their current and former law firms for malpractice, claiming they negligently failed to advise Learning Curve to settle for $350,000 and negligently failed to explain that they could be liable for millions, including exemplary damages. They sought the cost of the $12 million settlement and all attorney fees paid after the $350,000 settlement offer. The defendants moved for summary judgment on several grounds, saying the claim was not timely; Illinois law does not allow legal malpractice claims to be assigned; and that Learning Curve had not suffered the alleged damages because RC2 paid the settlement. The trial court granted summary judgment on the assignment of claim grounds and ruled that Learning Curve had no right to sue for any costs incurred after the merger. Learning Curve appealed.

The First District started with the issue of the alleged assignment of the claim. Illinois law generally forbids assigning legal malpractice claims, it wrote, and it looks at intent when judging whether a claim has been assigned. That means the disclaimer in the agreement between RC2 and former Learning Curve shareholders was not relevant. However, Illinois and foreign courts have allowed assignment of a malpractice claim in certain circumstances where many interests have passed from one party to another, including, in other states, as part of the transfer of assets in a merger. Because many assets are being transferred in this case, the court wrote, assigning the malpractice claim does not violate public policy. It reversed the trial court’s judgment on that count.

It also rejected the defendants’ argument that the two-year statute of limitations for legal malpractice in Illinois barred plaintiffs’ claim. The defendants argued that the clock started running after the bills came for the original trial in 200, in which Learning Curve was found liable. However, the court wrote, the judge in that trial granted judgment notwithstanding the verdict, leaving Learning Curve liable only for its attorney fees. It was not obvious then that the defendants’ advice was bad. Instead, the First District wrote, the clock started running on this claim after the Seventh Circuit’s verdict. Because this claim was filed within the two-year period from that date, the court wrote, it is not time-barred.

Learning Curve’s luck ran out when the First District considered whether it had any damages from the alleged malpractice. The trial court found that it did not because RC2 paid all post-merger costs, including the judgment from the Seventh Circuit and attorney fees, and reimbursed itself from the escrow account. The appeals court agreed, saying those payments did not affect Learning Curve’s assets. Furthermore, an indemnity clause in the merger agreement eliminated Learning Curve’s losses from those sources. However, the appeals court did say that Learning Curve’s former shareholders, who actually suffered the alleged loss, should substitute as the real parties in interest on the post-merger parts of the claim, writing that “if the defendants committed malpractice, the merger of the corporate client should not cause the claim to vanish.” Thus, the case was reversed and remanded to trial court.

Seventh Circuit Rules UPS Violated ERISA by Raising Contributions for Only Some Retirees

June 24, 2010 | Peter S. Lubin and James V. DiTommaso

As Chicago class-action attorneys, we were pleased to see that the Seventh Circuit upheld a decision in favor of retired UPS employees protesting a change in their employee contributions to health benefits. In Green v. UPS Health & Welfare Package for Retired Employees, No. 09-2445 (7th Cir. Feb. 10, 2010), a class of participants in the UPS retiree health plan (the Plan) belonging to the International Brotherhood of Teamsters Local 705 challenged a decision by UPS to raise the amount of health insurance contributions required of them, but not of other plan participants.

UPS employs Teamsters and negotiates its collective bargaining agreements with the international office of the IBT as well as with a few locals, including Local 705. Local 705’s agreement at issue here was negotiated in 2002 and expired on July 31, 2008. That agreement said UPS would provide the same health plan to Local 705 retirees that it provides to all retirees. The Plan said UPS may raise participants’ contributions once a certain threshold average annual cost per participant is reached, but that each employee shall share equally in the cost. If an additional contribution is retired, the Plan said additional contributions would not be required until after the collective bargaining agreement ended.

The average annual cost of health care rose above the threshold in 2006. In October of 2007, UPS sent out a notice that retirees’ monthly contributions would increase from $50 to $114 as of January 1, 2008. The international union complained that the increase was being implemented too early, before the July 31 end of the original collective bargaining agreement. However, it was also negotiating a new collective bargaining agreement with UPS at the time and eventually won an agreement from UPS not to implement the new fee until after the new agreement expired. This was not the case for Local 705, which complained that it wouldn’t even start a new bargaining process until July 31. UPS responded by delaying the extra payment until after the agreement expired.

After the July 31, 2008 expiration date, Local 705 negotiated a new collective bargaining agreement incorporating the Plan with no changes. In January of 2009, UPS sent out another letter saying that effective in February, it would increase retirees’ monthly contributions from $50 to $157.58 to $472.75, depending on how many family members were covered. This was not applied to the international Teamsters, who were under a separate agreement. The Local 705 retirees filed this lawsuit, arguing that their monthly contribution, higher than the international union’s, violated the Plan’s provision that all retirees would share equally in a rate hike. They also argued that the Plan barred UPS from making the rate hike effective before the end of their collective bargaining agreement. They asked for an injunction against the rate hike and agreed to a bench trial. The court found for the retirees on the “shared equally” issue and for UPS on the timing of the rate hike. Both appealed.

On appeal, the Seventh Circuit agreed with the trial court that the “shared equally” language applied to payments. UPS had argued that this language applies to how it calculates contributions, but the Seventh and the district court both found this was contradicted by the plain language of the Plan and thus “arbitrary and capricious” under Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001).

However, the appeals court also upheld the district court’s ruling that UPS could collect the additional contributions before the end of the current collective bargaining agreement. UPS interpreted “current” to refer to the 2002 agreement, when the Plan’s language was written; Local 705 interpreted it to refer to the 2008 agreement. The Seventh found that the interpretation by UPS was reasonable, in part because it had incorporated the Plan into the collective bargaining agreement without changes. It also said the December 2007 notice that rates would go up was further evidence that UPS was using the 2002 agreement as “current.” Thus, its interpretation was not arbitrary and capricious. The judgment of the district court was affirmed on both counts.

First District Rules Improper Joinder of Legal Malpractice Case With Underlying Action Does Not Foreclose Defenses

August 19, 2009 | Peter S. Lubin and James V. DiTommaso

In a Chicago legal malpractice lawsuit, the First District Court of Appeal has ruled that the defendant is not barred from certain defenses because the plaintiff improperly joined the malpractice claim with its underlying action. Preferred Personnel Services, Inc. v. Meltzer, Purtill & Stelle, LLP, No. 1-08-0389 (Ill. 1st. Jan 23, 2009).

Preferred is a staffing company with a claim against insurance broker Arthur J. Gallagher & Co. Gallagher told Preferred that it had secured malpractice insurance for the company and accepted payment for those services, but Preferred later discovered that it had no insurance. Preferred hired Illinois law firm Meltzer, Purtill & Stelle to sue Gallagher, but the firm never started its case. More than two years later, Preferred and its new lawyers sued Gallagher for breach of contract, negligence and fraud. In the same suit, it also sued Meltzer and one of its attorneys, Thomas Palmer (collectively “Meltzer”), for malpractice.

Gallagher moved to dismiss because the statute of limitations had passed in 2001, a motion that was granted by the trial court and upheld by the appellate court. While that motion was pending, Meltzer moved to dismiss the claims against it, saying the malpractice claims were premature because the underlying claim was still viable until the appeals court had ruled. This motion was denied. After the appellate decision on the Gallagher dismissal, Preferred moved for partial summary judgment, asking the court to foreclose arguments by Meltzer that the statute had not run on the Gallagher claims. The trial court granted this motion, but also certified three questions for the First District Court of Appeal to answer: