Friday, October 16, 2009

Halloween-Vampires, Slayers, and the Law

Halloween is just around the corner. I have received a number of calls from vampires concerning potential liability both civil and criminal for their actions. I have also received calls conversely from vampire slayers concerning civil and/or criminal penalties for killing vampires.

If a vampire does not kill the victim but instead turns them into a vampire is this illegal?

Illinois has had a law in the books since the late eighties that makes the knowing transmission of HIV a crime. Although, the vampire transmits his curse through the blood, no state has yet passed a law similar to the HIV statute related to vampires. I suspect this has to do with the large number of vampires who are elected members of the legislative branch of state and federal government. I should also note the impact of the well funded and powerful vampire lobby groups.

In addition those in the House and Senate of the werewolf persuasion are likely to vote against any legislation perceived as anti-vampire. Historically they are concerned that a similar statute could impact them in the future. I should note in the early 80's that both Republican and Democratic lycanthropes voted against funding for research involving miniature suns as a source of energy production. They did so out of respect for vampiric concerns.
Vampire Attacks that result in death or injuries.

Does this mean the vampires are free to act as they like? The answer is no. Battery is an unwanted touching. Under Illinois criminal law, "A person commits battery if he intentionally or knowingly without legal justification and by any means, causes bodily harm to an individual or makes physical contact of an insulting or provoking nature with an an individual." 720 ILCS 5/12-3. A battery can be charged criminally in the form of a misdemeanor battery (720 ILCS 5/12-3) or a felony battery (720 ILCS 5/12-4). Battery can also result in a civil suit. Meaning a vampire can be sued for monetary damages. If a person is killed in relation to a vampire attack the vampire can even be charged with murder (720 ILCS 5/9-1). A life sentence to a vampire is substantially longer then the same sentence to a human being and is thus a serious deterrent.

In 2002 The United States Supreme Court rejected the necessity defense as it relates to the undead in the case of Illinois v. Tepes. Illinois v. Tepes, 666 U.S. 327 (U.S. Supreme 2002). In that case the vampire argued he would die if he did not feed and thus his actions were necessary for survival. The majority opinion with Vlad Dracul as the sole justice in decent stated that a person or vampire can not choose one life for another. The Court further points to the possibility of feeding on animal blood or going to a blood bank. In the Illinois case of People v. Nosferatu, two arguments were made as affirmative defenses to a murder charge. The first was akin to an insanity defense alleging that the "blood lust" made the vampire unable to control his actions. The second argument was that the "blood lust" negated the ability for the vampire to act rationally and thus negated the "mental state" or "mens rea" that was a prerequisite to conviction of the crime. These arguments were rejected by the court. People v. Nosferatu, 232 Ill. Dec. 744, 623 N.E, 2d 666 (4th Dist. IL. 2003) Justice White speaking for the majority states, "Experts for the defense were able to establish the existence of the 'blood lust'. That being said there was no evidence this 'blood lust' was any different then a drug addicts desire for cocaine. To except this argument would open the flood gates to all addicts to justify any crime no matter how heinous." People v. Nosferatu, 232 Ill. Dec. 744 at 750, 623 N.E. 2d. 666 at 700 (4th Dist. Ill. 2003)

Thus, a vampire may be subject to both criminal and civil liability for battery. The courts have consistently found blood sucking to be an unwanted touching. Further, flying or floating through windows may result in a conviction for home invasion and/or residential burglary.

Potential Slayer Liability

The next issue relates to vampire slaying. In the landmark case of United States vs. Buffy S., the court held that slaying was not murder because the victim was not alive. United States vs. Buffy S., 23 U.S. 872 (U.S. Supreme 2007). As of yet I have not read any published cases relating to civil liability from the families of slain vampires.


In conclusion, the law is certainly not settled in regards to all aspects of this field. Garlic and/or a religious symbol may provide better protection overall then seeking protection from the courts. That being said I'm willing to make appointments in the evening if the sunlight would prevent your coming in for a free consultation.

Wednesday, October 7, 2009

How much do you charge?

Perhaps the most common question I'm asked is, "How much do you charge?". This seems like it is a very simple question and one that can be answered directly. If I call up my local fast food establishment and ask how much is a hamburger they should be able to provide a direct answer. If they didn't I would be suspicious. If I am preparing a person to testify in court I would always warn them to answer a direct question with a direct answer or it sounds like the person is hiding something. Yet, in the case of attorney's fees there are good reasons you wont be given a direct answer, as to price, over the telephone.
An attorney should be able to provide his or her hourly rate in advance. Ordinarily, the retainer in each case is based on what issues that individual case will involve. Thus, more information is needed to quote a rate of retainer. It is my policy not to charge for the initial consultation. This initial meeting will allow me to provide and obtain information needed to quote a retainer amount. I will explain in detail what and how I charge for my services. I always attempt to make an appointment for potential clients to come and see me within a couple days. This is true even if the time has to be outside of working hours.

Some factors that must be considered in hiring an attorney :

1. Do you like the attorney and feel comfortable with him or her. You will have to work closely together and share personal information. If you are not comfortable with the attorney you shouldn't hire that person. This is true even if their retainer is the lowest.

2. Does your attorney feel feel comfortable with you. I have been an assistant public defender and have worked for the Cook County Public Guardian's Office. In those jobs I had to take whatever case was assigned to me. I work for myself now. If I don't think I can help you or simply don't feel we can work together I wont take your money or the case.

3. Cases can involve more then attorney's fees. In a divorce there are filing fee's, the cost of service, costs for depositions, costs of mediation and costs to pay for the Guardian ad Litem not to mention the costs for expert testimony. I have had divorce cases where the fee for a home and background investigation was greater then the attorney's fees for the entire case. It is up to the client what they want to spend for experts and discovery.

4. Retainers and hourly rates don't tell the whole story. If someone bills you each time they think of your case you may end up with a higher bill then you would with a lawyer who charges a lower hourly rate. Also, A lawyer with greater experience and thus may charge a higher hourly rate may take less time to do the same thing because they don't need to research as much.

5. Who are you getting. If I hire a lawyer who will do the work? It is reasonable to ask a lawyer, "Who will do the work on my case?". Will the work be done by a paralegal, another lawyer in the firm or the lawyer you hired. This is a very common problem. You may hear great things about a lawyer but if someone else in the law firm does the work then it does not matter.

6. Criminal cases my be different. I usually do not charge by the hour in criminal cases but instead charge a flat rate. It may be divided in two parts. One fee up front and another if the case goes to a jury trial. I often hear someone complain that they want to hire a "real attorney" because a public defender was appointed to their case. A public defender is a "real attorney" and may indeed do a very good job on your case. Generally, the problem with a public defender is that person may have so many cases that it's not be possible to devote as much time to your case as you may want. Thus, if you hire an attorney in private practice you need to make sure that lawyer will devote the time needed to your case. The cheapest attorney my not be the best. After all if their rates are low due to the volume of cases they take on then they also may not have the time to devote to your case.

The second most common question I'm asked that relates to the first is, "Have you handled a case like mine before?". I have been an practicing law since 1992. Most of my case work involves family law and criminal law. So it is rare to run into an issue I have never seen or considered before. Yet, each case is also different. Your family and thus your situation is unique. What is unique to your situation is what the court needs to consider in making an informed decision.

My rates are low given my level of experience. The reason why is that I try and keep my expenses down where possible. Yet, price should not be the major factor in hiring a lawyer. I would not go to the hospital and ask for the cheapest brain surgeon. I would meet the individuals involved and pick the best person for my problem. Don't ignore the price but don't forget what is most important. Your freedom and your children are priceless.

Friday, October 2, 2009

higher education and divorce

In a dissolution of marriage case the court can order one or both parents to contribute towards the higher education costs and expenses for the benefit of their children. This article discusses some of the constitutional implications of this statute. It further addresses some practical advice in addressing agreements to contribute to higher education.

In a divorce proceeding the court can order the parents to contribute towards the Higher Education of their child. 750 ILCS 5/513. Such a request for contribution can be made before or after the child has reached the age of majority. 750 ILCS 5/513 (a)(2). The statute points out “The educational expenses may include, but shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.”750 ILCS 5/513 (a)(2). The court can consider all relevant factors before ordering the contribution to higher education costs including “1) The financial resources of both parents. (2) The standard of living the child would have enjoyed had the marriage not been dissolved. (3) The financial resources of the child. (4) The child's academic performance.” 750 ILCS 5/513 (b). In this article I will discuss the constitutionality of this statute. I will also make some suggestions on addressing higher education funding in divorce proceedings.

The constitutionality of this statute has been unsuccessfully challenged based on the claim it violates the “equal protection” clause of the Fourteenth Amendment to the United States Constitution.The 14th Amendment to the United States Constitution. The Fourteenth Amendment states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. The 14th Amendment to the United States Constitution.

Married parents have no legal obligation to pay for their children’s higher education. Yet, under Illinois law, divorced parents can be compelled to pay for their children’s college education. Thus, it has been argued that by treating two similarly situated people dissimilarly it violates the equal protection clause of the Fourteenth Amendment. The 14th Amendment to the United States Constitution. In the case of In re Marriage of Kujawinski, the court upheld the constitutionality of the statute based on an equal protection challenge. In re Marriage of Kujawinski, 71 Ill. 2d. 563, 376 N.E. 2d. 1382 (Ill. Supreme 1978). This argument was again unsuccessfully made in the case of In re Marriage of Kuhn. In re Marriage of Kuhn 221 Ill. App. 3d. 1, 163 Ill. Dec. 429, 581 N.E. 3d. 380 (2nd Dist. 1991).

Although, this statute has survived constitutional challenges based on “equal protection”, it may be vulnerable to attack based on other constitutional grounds. The 14th Amendment to the United States Constitution. It can be argued the statute deprives a parent of his or her “liberty” raising their child as they see fit. The 14th Amendment to the United States Constitution. There are parents who believe struggling through college helps turn a child into a well rounded adult. There are those wealthy individuals who attribute their later success in life to working their way through college. Not to mention some of the most successful people in the world never completed college. Abraham Lincoln only had a year of formal education. Billionaires such as Bill Gates (Microsoft®) and Steve Jobs (Apple®) never finished college.

In the movie Soul Man a student is accepted to attend Harvard University but his rich parents will not pay the tuition. When he approaches the University concerning financial aid he is informed, “...they have support for parents who are poor, but not for those whose parents are assholes.” Soul Man, New World Pictures 1986. I believe parents should try and pay as much as they can afford towards their children’s education. That being said the opposite opinion is not inherently unreasonable.

Contribution hearings also show a likelihood for becoming even more contentious in the future. As people have children later in life and the economy gets worse this will add to the problems associated with paying for higher education. Parents may have a legitimate concern for their own well being. As a parent nears the retirement age she may take the position that the children will have time to pay back student loans but she needs her savings to retire. It is easier to obtain loans and grants for higher education then for adults to obtain money for retirement and medical care. A student has far more time and less obligations in order to pay back debt. The Illinois Supreme Court has discussed how one of the fundamental rights a parent has is the right to raise their children as they see fit. The Illinois Supreme Court in finding the Illinois Grandparents visitation statute unconstitutional discusses how it is presumed a fit parent will do what is best for his children. Lula v. Lula 193 Ill.2d 455, 739 N.E.2d 521 (Ill. Supreme 2000); Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002) . Thus, if a parent does not want to send their child to college, isn’t that decision constitutionally protected? Isn’t such a decision presumed to be in the child’s best interest?

In the case of Wickham v. Byrne the Illinois Supreme Court states “One of the fundamental rights protected under the Fourteenth Amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). The court goes on to say, “Decisions concerning care, custody, and control include, for example, decisions about a child's education, religion, and general upbringing.”Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). These decisions are not based on equal protection but based on the fundamental right to “liberty” also provided under the 14th Amendment of the United State’s Constitution. The 14th Amendment to the United State’s Constitution.

The statute may also be vulnerable to a claim based on religious freedom under the “establishment’ and “free exercise” clauses of the First Amendment. The 1st Amendment to the United State’s Constitution. There may also be a challenge based on “freedom of speech”. The First Amendment to the United States Constitution states “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The 1st Amendment to the United State’s Constitution.

In Wisconsin v. Yoder, the United States Supreme Court held that Amish children could be exempt from compulsory education requirements. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The court found a statute allowing the government to require parents to make their children obtain a certain level of education despite the wishes of the parents was unconstitutional. This decision was clearly based on some unique characteristics of the Amish. These included not only their religious beliefs, but also how they have been self-sufficient and require little government involvement. It could still be argued the state does not have a compelling interest to force an unwilling parent to pay for college.

Unless there are extraordinary circumstances, it would be very difficult to convince a judge a child should not go to college for religious reasons. A better argument would be that a parent should be allowed to reject a specific school for religious reasons. If the court were to order a parent to pay money to a school that holds views fundamentally opposed to his or her religious beliefs, doesn’t it violate the parent’s First Amendment rights? The 1st Amendment to the United State’s Constitution. Isn’t the judge and thus the government endorsing whatever religion with which the school is affiliated?

Why should a fundamentalist Christian be forced to pay for his or her child to attend a college that teaches evolution? Why should a person who is not Christian pay for their child to attend a school that encourages prayer and fundamentalist doctrines? In the case of In re Marriage of Spear, the court upholds the trial court decision that the father need not contribute to college expenses at an unaccredited bible college. In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court, however, does not base its decision on the First Amendment and specifically states “We make no attempt to compare the benefits of Bible college and secular schools; we focus instead on the propriety of the school for the particular student based on ‘all relevant factors.’” In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court goes on to state, “Here, if Patience had expressed a strong desire to pursue a religious vocation such as working as a missionary or a pastor, her choice to attend a bible college might be a logical one, and the focus would then shift to other relevant factors such as the financial resources of her parents.” In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court seems more interested in what is in the student’s best interests then what the parent wanted.

There are various Supreme Court cases where government funds are used to pay for a religious education that have been upheld against First Amendment challenges. Witters v. Washington Department of Services for the Blind, 474 U.S. 481(U.S. Supreme 1986). Zelman, v. Simmons Harris, 536 U.S. 639 (U.S. Supreme 2002). Yet in these cases the money was provided to individuals to use as they saw fit. It was the individual and not the government who choose a religious school. If the court orders a parent to pay for tuition to a specific college with a religious affiliation that judge is ordering a parent to support directly that religious institution and thus that religion.

If a parent is forced to pay for a particular school it also impacts their freedom of speech. In Buckley v. Valeo the Supreme Court, in the context of political campaign reform, discusses how money is a form of speech. Buckley v. Valeo, 424 U.S. 1 (Supreme 1976). In America money does talk and paying money to a school says a parent supports that school. It may make a religious statement if a student attends a religious institution such as Notre Dame or Wheaton College.

A student’s choice of schools may also make a make a statement of defiance. A parent who attended the University of Illinois may not want their child to go to the University of Michigan or the University of North Carolina based on memories of past sporting events. A parent with conservative political views may not want their child to go to a liberal college. Does it violate the First Amendment to order a parent to pay for a college of which they don’t approve. If money talks then that speech is protected by the constitution. Gloria Steinem said, “We can tell our values by looking at our checkbook stubs”.

As a general rule Illinois courts have shown a preference towards public schools vs. private schools. In re Support of Pearson, 111 Ill. 2d 545. 490 N.E. 2d. 1274 (Ill. Supreme 1986). That being said, courts have supported sending children to private schools as well. Gibb v. Troezemberg, 188 Ill. App. 3d. 695, 135 Ill. Sec. 948, 544 N.E.2d. 444 (4th Dist. 1989). These cases appear to be decided based on financial circumstances and resources of the parents and the child rather then on politics or religious reasons.

In terms of practical advice, most judges will order a parent to contribute to college if they can afford it. This is due in part to the fact that college has become a necessity in a modern world. A college degree is equivalent to a high school diploma in the past. Also, judges and lawyers all have college degrees as well as law degrees, so most believe that higher education is a necessity.

That being said where the child goes to obtain higher education is a matter a parent has some room about which to argue. This is particularly true when a parent has a good faith argument that a particular institution is not appropriate. That could be based on money, religion or simply an honest belief as to what is best for the child.

It also makes good sense to think about higher education during the time of the divorce decree to avoid conflict later on. People change as time goes on. People’s values grow apart after a divorce. Thus, at the time of the divorce it may be easier to agree on how best to address higher education costs.

Addressing higher education at the time of the divorce allows parents an opportunity to save for college appropriately. A responsible parent may put money away for the child’s education each month. During the same period of time the other parent may not save any money for education. Then at the time the responsible parent petitions for higher education support, the judge may consider the financial resources of the child and point out that the child already has plenty of money. Thus, the financially responsible parent is punished for their sacrifice. If both parents know in advance how college is to be paid for, they will be better prepared to save.

If at the time of the divorce, a child is very young and the parents have no idea of his or her talents, it may be more difficult to plan for higher education at the time of the divorce. Obviously, a child’s grades, talents and desires are not yet possible to determine. Thus, in certain circumstances it may benefit the parties to wait.

It is also advisable in coming to an agreement to pay for higher education that expenses be as specific as possible. How is higher education defined? Should it be a private or public institution? Must the school be accredited? Does it include only four year universities or colleges or is a trade school or junior college appropriate. What does college include? Does it include transportation, food, clothes, insurance and gasoline? Are there geographic restrictions? Is it appropriate to go a University in Hawaii or in Malibu? Does it include a lap-top computer books and supplies. Does it matter if the college requires a computer?

What is the responsibility of the student? Does the student need to first apply for student loans, grants and scholarships? Does the student need to obtain certain grades? Can the student leave school and then come back? If the student gets married should the parents continue to pay for school? Must the student provide a class schedule to the parents and a copy of his or her grades?

Are there financial limitations? There are culinary schools in New York City and Paris France far more expensive then the most expensive private colleges. How many years of college must a parent contribute towards? Must the student graduate in four years? Are the parents willing to pay for graduate school?

Parents tend to want to be ambiguous when it comes to agreements concerning higher education. Parents tend to assume their child will make a reasonable and prudent decision. This is often a mistake. I would argue this is one area of the law where being detailed and specific can benefit your client a great deal in the end. If one parent is to pay the entire cost of higher education, there is a greater likelihood for problems down the road as only one person has a real incentive to keep costs down. Thus, in such cases it is important to be particularly detailed.

In conclusion, the contribution towards higher education is an area of the law that has interesting constitutional implications. It can help to avoid problems by agreeing to higher education expenses at the time of the divorce. Finally, the more detailed and specific any agreement is concerning higher education, the greater the likelihood you wont have to come back to court for this topic in the future.

Wednesday, April 8, 2009

Dollars & Common Sense

One of the top causes of divorce is money. Yet, divorce is no cure to money problems and adds to them in the short run. Let's face it, divorces cost money. The costs of lawyers, experts, and fees can add up.

That being said the cost of the divorce proceeding is small compared to the added cost of living from divorce. The expression "two can live as cheaply as one" is not entirely true. Unless one of the couple agrees not to eat or drive. But it costs much more to pay for two households. In the short term you have a house and all the same bills and expenses as when the two of you lived together. On top of that you have an additional apartment or home for the other spouse.

Assuming, like most Americans, prior to filing for divorce, the family was just able to pay their bills. Then add in any expenses will cause a short term deficit. Until the court has divided property and debt, your spouse may run up debt. If that debt is not for the family, it may be a dissipation of marital assets and be recoverable. That debt is still a problem. Especially if there is no money to pay for it out of marital assets.

It seems couples are getting divorced earlier in marriage. Thus, there are fewer assets. Also property values are not doing well. Thus, your home will be harder to sell and have less equity. People are less likely to have retirement plans through work. Traditionally marital assets tended to be in terms of retirement or equity in the home. These sources of money seem to be less available over time.

Yet, there is light at the end of the tunnel. Things usually do get better. Remember the poster with the cat hanging onto a branch? "Hang in there baby".

Tuesday, March 31, 2009

Follow Up

Just a few days after my last post a similar conclusion was reached by Senator Jim Webb (D. Va) in Parade Magazine on March 29, 2009. I would encourage reading his article since it includes many statistics I did not. I can't talk about Senator Webb's politics generally but he does get a Lerner Law Blog high five for bringing to the forefront this national problem.

Wednesday, March 25, 2009

Can we afford to be self rightous?

Our country continues to sink in a quagmire of debt just as our government is trying to decide how much paper to print to stimulate the economy. My hope is the people and countries buying America's debt don't realize our collective lack of will and resources to pay it back.

At the same time we are struggling with the financial burdens to keep our sinking country afloat we are imprisoning the very people who can save us. We need the youth to pay the Social Security for the old. We need the youth to produce and to spend money. Yet, we incarcerate a greater portion of our population then any other nation including China and Russia. I have read that one in 31 adults are on probation, parole or in prison. Many of these people are young, willing and able to work.

Judges should take a long hard look before incarcerating a non-violent offender. Prison does not deter criminals from committing more crimes. Looking at the recidivism rate, it is clear prison teaches inmates to become better criminals. Our criminal justice system makes it so a person who has a hard time finding a job before incarceration has an even harder time finding a job afterwards. If a person is out of work and his only jobs skills were taught to him by the bullies and thugs in prison, what is going to happen? What can we expect to happen?

Judges often mistakenly believe putting someone in prison will deter others in the community from committing crimes. I do not support this theory. No criminal believes he will get caught. Most crimes are committed when people are under the influence of drugs or under duress. Thus, would-be criminals are not saying, "I read in the paper someone was sentenced to ten years in prison. I think I will quit using drugs". Everyone is aware that drugs are illegal. Everyone knows they can go to jail for using them. People still use drugs. For a teenager, five years in jail is the same as twenty. If you're young, any amount of jail seems like forever. If they believed they would get caught they wouldn't commit the crime. The youth believe they're invincible.

The most disturbing trend is giving first time offenders between 2-15 days in jail to get their attention. If they can do their time on weekends and work release that is understandable. If not and they end up losing their job, then we are almost assured of more criminal behavior in the future.

Our justice system should be primarily motivated by doing what is right. It should be less motivated by punishment and public perception. Yes, we must punish people. I have imprisoned my own children in their rooms. That being said my motivation is not the punishment. I'm motivated by love and the desire for them to reach their full potential as productive adults. Judges must also consider their motivation prior to sentencing a person to prison. If the court is considering a sentence for a violent offender and they are motivated to protect society, prison maybe the appropriate sentence. If the criminal is mentally ill or addicted to drugs then treatment may be appropriate. If the criminal is not violent and shows a willingness to comply with probation then maybe we should give them the opportunity to do so. Judges should not simply read through the factors in mitigation and aggravation like reading a shopping list. Judges should remember the person before them is a human being with the potential to make a positive impact on society.

I don't like to quote religious sources since my blog supports no particular religion. That being said if, "We are judged by how we treat the least among us." Mathew 25: 35-40. Then judges must remember they are not only the judge but the judged. We as citizens must remember to seek out justice not just vengeance and punishment. There may have been a time when financially this country could absorb the cost of mass incarceration. That time is gone.

Friday, March 6, 2009

Werewolves and Fruit Knives

This month I have an article published in the Illinois Bar Journal titled: "Standard Visitation" and the Best Interest of the Child (March 2009; Pages 138-141). As such I thought I would write about something else in my blog. I warned you I might discuss antiques and movies but I didn't say I would discuss them both together. Well I will.

The movie "Cursed" is a werewolf movie staring Christinia Ricci and directed by Wes Craven. In the movie Christinia Ricci stabs a werewolf with a silver piece of flatware. Of course werewolves hate silver bullets but it appears they are equally distasteful of common eating utensils made of silver. The only problem is that most sterling butter knives have a steel blade and a hollow sterling handle. I few may have a silver plated blade. After all silver is generally too soft a metal to use to cut food and certainly not an ideal weapon.

This brings me to my discussion of antiques. A common item in Victorian times particularly in England was the "fruit knife". A folding or pocket knife with a mother of pearl handle and a sterling silver blade. The blade is not plated but almost pure silver (at least 92.5 percent pure - sterling standard). Since most "fruit knives" are English they will have hallmarks on the blade. A lion with a raised paw (or passant) is a symbol for sterling silver, a letter is a symbol for the date the knife was made, and a symbol or initials tell you who made the knife. American fruit knives were also popular but are generally marked with the word "sterling" or sometimes "coin silver". These knives were designed to cut soft fruit so a steel blade is not needed.

Most of these knives were made between 1800-1920. If you can find such a knife made in the 18th Century it will likely be more valuable. Some of these knives were made with tortoise shell or ivory handles. The American version often will have silver scales. I have even seen a few "fruit forks".

These knives are not overly expensive and are fun to collect. They are easy to find and cheap to mail. They also come in any number of styles and sizes. So when the moon is full and the wolfsbane is in bloom remember your fruit knife. It could save your life.

Monday, February 23, 2009


Reading all the information on the internet, it seems odd to me the fascination with "Octomom". Not that I don't understand the bitterness. Taxpayers have a right to feel like suckers. Here we are struggling to feed our small families while the government skims from our meager earnings to support an irresponsible parent. I understand further why people believe that it is harmful to children to be raised by a single mother with twelve children eight of which are infants. There is not enough parental time to help them learn the skills to become productive adults.

My confusion is why now and why with such a small time case? Maybe, because of the recession, people feel the government is broken. Maybe, people see the recession as proof that as a nation our moral compass is broken.

The reason I call "Octomom" small time is I have seen how the juvenile abuse and neglect system in Illinois works. I have seen women having far more then eight children, all born exposed to cocaine. This is worse then a one-time mistake, or error in judgement, this is the same mistake over and over again. Of course the children are taken by the authorities. In Illinois, proof of abuse or neglect of one child can be used against you in cases involving other children. Of course all of these children are special needs children permanently in need of costly special care. Not only are they born exposed to drugs but the mother was unlikely to have received good pre-natal care. Of course these children will grow up to have their own children who will also be taken by the government and raised by taxpayer dollars. This cycle of abuse has gone on for a very long time and yet no one seems to care. This is a daily occurrence and all people talk about is "Octomom". What of the mothers with AIDS or HIV who have more then one child exposed to this deadly virus. I certainly consider the victims of the horrible diseases to be just that, victims. I also hope that some day soon we find a cure to this nightmarish virus. That does not excuse a person from getting pregnant when they know they have the disease. No one should be subjected to that type of life. That is especially true of innocent babies. (If you find out you have HIV or AIDS after your pregnant, go to a doctor. It is possible to at least increase the odds your child will not be born with the virus.)

What makes it worse is that the Department of Children and Family Services tries to place children with relatives when at all possible. So the mother of the drug addicted parent are often provided the grand children as a foster parent. A grandmother who we know has failed to raise her own child successfully. Yet she is given tax payer payments to raise her grandchildren as a foster parent. She will likely go on to adopt these children as a subsidized adoption so that tax payers can pay to raise these children as well. The Department even pays for a collage education in the rare case one of these children go on to higher education.

This blog is not large enough to go into solutions to this national problem. It is large enough to ask people why "Octomom" when we have much larger cases in our own backyard. Maybe, this national financial crisis will make us reconsider what the government can and can't pay for.

Thursday, February 19, 2009

Learning to Cope with Divorce

Learning to cope with the prospect of divorce is something that takes time. In life there are few if any changes that are more permanent and more stressful. That being said you will be able to get on with your own life and make it fun and worth living. One common question people beat themselves up about is if they had done enough to try to save the marriage. I can't answer that question but I can say most people who come to me do so only after they have realized the marriage was in trouble for some time. Most people have worked to make their relationship work and tried hard to save it.
I do not attribute the high divorce rate to couples not trying hard enough to save their marriage. I suspect that in earlier times many people did not get a divorce that should have. That different societal and religious pressures kept couples together that should not have been married to begin with. Yes, there are people who get married without fully considering that marriage takes hard work and the willingness to sacrifice for the family. That being said it is no argument to save the marriage only an argument not to have gotten married in the first place.
I would suggest the greatest cause for divorce is that people get married who are not prepared for marriage. Often people get married to young and they grow apart as their goals change. People often grow apart based on things they could not predict at the time the got married such as how their spouse will care for the children. Day to day issues relating to money and time are probably the number one cause for divorce.
Why people get divorced however is not my intended focus. By the time people get to a lawyer their marriage is usually long since dead. I want to discuss how to cope with the loss associated with divorce.
It is alright to talk about your feelings to friends and family. That is at least to a point. It can alienate people to constantly burden them with your problems. I always suggest a counselor or therapist.
Always be cautious when speaking to your children. Adult problems should never be forced on children. Children should be protected as much as possible. Never make negative comments about their parent in front of children. You may be loosing a spouse but that person will always be the parent of your children.
Remember it is not the end of the word. It is important to put things in perspective. You will get over this. Your life is not over.
Give yourself time. The longer you were married the more time it will take to recover. Don't expect to be completely over a ten year marriage in a year.
Except that financial it wont be easy. Lets face it costs more money to run two separate homes. You have more responsibility and less help. On top of all that you have the cost of courts and lawyers. As such a divorce takes time to get over, emotionally, financially and socially. Expect it to take time and don't beat yourself up about not feeling back to normal.
A new lover is not the answer. When it comes to new relationships if you have children you should be especially cautious of any new relations. Even if you do not have children this is a time for introspection and hard work. Adding further complications until you are strong and confident is a mistake.
Don't be afraid to go to a movie by yourself. It's ok to be alone. In fact after seeing enough movies with my children I love going to movies by myself. A good horror movie always makes me appreciate life.
Finally remember you are loved. Your family loves you and needs you. Your friends love you and need you. Life is not so bad. As Cher once said, "I believe in life after love."

Tuesday, February 10, 2009

When Is It Time to Get Divorced?

If there is a process server at your door, handing you a petition for dissolution, then it's time for a divorce, whether you are ready or not.

The next question is when should you file for divorce. Ultimately, the decision is yours. There are a number of factors that indicate to me the marriage is over.

The first and most obvious factor is you are no longer in love. No amount of counseling, heart to heart talks, or good intentions are going to change this fact.

But even if you still love your spouse, it may be time to call it quits. One factor to consider is how your relationship is impacting your children. Although many people argue they should not get a divorce for "the sake of the children", they must remember the children are effected by your relationship, good or bad. Children exposed to an unloving environment may suffer more if you remain in the relationship than if you get a divorce and ultimately expose them to loving environments. Constant fighting and bickering is not an appropriate environment for children. A Champaign County judge used to say "children exposed to violence grow up to be victims or bullies". Thus the best reason to get a divorce is if it benefits your children. Even if there is no physical abuse in your home, parents who are disrespectful to each other do not set a good example to their children, and may prohibit them from growing up to have healthy relationships of their own.

Another reason for a divorce is your happiness. Sometimes it makes sense to put your own happiness on the back burner for the sake of your spouse and children. That being said, ultimately, life is short and you must work towards your full potential.

I certainly encourage talking to your priest, minister and best friend. Marriage counseling can certainly be of an enormous benefit. However, the answer to the question "should I get a divorce?" is one that can be answered only with your heart.

Contact me about how to get a divorce, or what to expect when filing for a divorce.

Wednesday, February 4, 2009


Welcome to my blog. I plan to analyze topics of law, with the occasional antiques essay thrown in, as well as movie reviews. Please bookmark me and check back often.

Scott Lerner
The Law Office of Scott Lerner
201 W. Springfield, Suite 205
Champaign, IL 61820