Lerner Law

Holidays

2011-12-09T13:39:00.000-08:00

As the holiday season comes around so do conflicts over holiday visitation. If parents can't work together than they must at least keep the conflict from their children. You want their memories to be about the holidays and not about the conflict. Most of the time the Christmas break is divided evenly with one party having visitation on Christmas Eve and the other having visitation on Christmas day. That schedule is usual switched every year so each party will receive visitation on Christmas day every other year.

This schedule can be an opportunity for new traditions. Children will often see this as getting an extra day of Christmas since they will have two opportunity's to receive presents. I find that parents are more upset about this type of arraignment than the children. I have been told that even Santa can rearrange his schedule to allow Christmas Eve gift giving.

Parents can also agree to split Christmas day or even spend Christmas day together. It is always best if the parents can work together. If the court decides Christmas visitation than the individual desires of each parent may be ignored. Thus, why not try and work together.

If you can't agree than it is fine to let the court provide a more generic visitation schedule. That being said it is still important to keep the conflict from adversely impacting the children.

The Jewish and Muslim religious holidays do not follow the same calendar. As a result holidays fall on different dates each year. This can make planning more difficult. Although, since Chanukah lasts eight days it does allow both parents to spend time with the children on Chanukah.

Thank you for reading the Lerner Law Blog this year and have a wonderful holiday. The next five people who e-mail me between now and December 19, 2011 will receive a free gift from the Law Office of Scott Lerner. My email address is lernerlaw@yahoo.com. Please include your snail mail address if you wish to receive a gift. Good luck and have a happy new year.

Halloween

2011-10-31T09:50:00.000-07:00

Halloween may be scary but some would say it is nothing compared with getting a divorce. Although, getting divorced may seem nightmarish it often does not have to be. A good lawyer may not be able to get you everything you want but should be able to guide you through the system with a minimal amount of surprises.

In a scary movie it is the anticipation of what will happen in the future that scares you. Rarely is the monster as scary as the anticipation. It is a common trick of film makers to hide the identity of the killer until the end of the movie. This helps preserve the suspense.

In the practice of law it is best to try and limit the amount of anticipation and suspense. A lawyer can't necessarily predict what a judge will do. He should be able to explain the options the judge has and explain the factors the court will consider.

Not everyone celebrates Halloween but if your family does than remember that when writing a parenting agreement. Trick or Treating is usually only for a couple of hours and only up to a certain age. Thus, it may not be necessary to address with older children. Parents can also agree to share Halloween and have one parent go trick or treating with the children and the other hand out candy. As with anything written into a parenting agreement it is best to put the needs of the children first.

Criminal Law, Prison and the Youth of a Nation

2011-09-30T10:34:00.000-07:00

I remember applying for my first job. Wondering if the fast food restaurant was desperate enough to hire someone with no experience. As nightmarish as that experience was can you image the same experience today, in a recession. College graduates are working at Starbucks and McDonalds. It takes a lot of luck to get a job with no experience. Now lets make the same search damn near impossible. Lets add to the mix you have a felony conviction.

It is so cheap and easy with the internet to look up a potential employee's criminal background. The result is that we have created a huge class of Americans who are almost unemployable. I have received more calls seeking to expunge or seal criminal records in the last year than in my entire career. Most of the time those convictions are not eligible to be expunged or sealed (see 20 ILCS 2630/5.2).

Certainly this is a factor to be considered in pleading to anything. That being said there are cases where it makes sense to enter into a plea. This is particularly true given the risk of substantial prison terms. In addition many defendants are convicted at trial. Thus, this is not a problem that can't be resolved by an individual defendant. This is a problem that must be addressed as a nation.

The problem we have is that politicians don't get voted out of office for being perceived as tough on crime. What we fail to see as a nation is the big picture. The object is to keep criminals from impacting our families and friends. Thus, if a young man or woman in their teens or early twenties gets convicted of a crime they are unlikely to find a job throughout their lives. The result will be to do the one job they know best, even if that job is to engage in criminal behavior.

If they are not proficient at committing crimes we can send them to the best schools in the State of Illinois. The charm schools at Stateville, Dwight, Pontiac and Menard are far more successful at teaching criminal behavior than our high schools are at teaching lawful behavior. Maybe the reason is that we spend more money per student on our prisoners than on our students.

People who have drug convictions often have drug addictions. A drug addict who can't find a job is likely to get frustrated. The stress of their situation may result in the desire to take drugs. Since they have no job or money the best way to get money is to steal from you. If we limit welfare to people with criminal convictions than this process will speed up. To make matters worse politicians are reducing funding for drug treatment.

The cycle becomes worse when we destroy the lives of individuals with real potential. Young, first time offenders are often over charged resulting in felony records. In my county retail theft (a class A Misdemeanor) is often charged as a burglary (a class 2 Felony). The State's Attorney has a great deal of discretion as to how they charge an offense. It certainly can't hurt in an election to have a high felony conviction rate.

The police also have discretion as to whether a case should be charged. There are times when a stern warning or a few moments at the police station can provided the needed incentive to straighten up and fly right. Should this happen in every case? Of course not. That is why we need law enforcement that is not only concerned about putting bad people in jail but also concerned about doing the right thing.

It is also important to remember that times have changed. When I was in High School a fight would often be resolved by teachers forcing the students to shake hands. Today the same fight will often by resolved by the students being convicted of aggravated battery. There was a recent change in Illinois to allow 17 year old defendants to be charged with misdemeanors in the juvenile court but the statute does not stop 17 year old defendants from being charged with a felony. There is also at least some scientific studies supporting the idea that impulse control does not fully develop until a person is in their thirties.

The last three presidents of the United State's have all admitted to some form of drug use or alcohol abuse. If they were arrested at the time of their substance use or abuse it is likely they would never have run for office. The result would be an incredible waste of potential.

There is also a very practical side to this argument. As a nation we simply can't afford to imprison so much of our youth. I am not talking about the yearly costs of housing (which is well in excess of $30,000 per year). I am talking about the cost of the state raising children without fathers. I am talking about the costs of prisoners not paying into the system for taxes and social security. I am talking about the destruction of the American dream for a large portion of the youth of our nation.

Screaming at Oranges

2011-08-30T08:47:00.000-07:00

There is an old saying that a man marries a woman thinking she will never change and a woman marries a man thinking she can change him. The high divorce rate suggests that the reasons people get married may not always be the right ones. People do change over time. Hopefully, people gain wisdom as time goes on. Yet these changes are not always for the betterment of the marriage. Also, sometimes one person within a couple changes while the other remains the same.

People generally do not change their essential nature. If people are unwilling or unable to change for the sake of a marriage they are almost never willing to change for the sake of a divorce. Thus, trying to change a person's essential nature may be a kin to pounding in a nail with your forehead.

I'm often confused that people are surprised and frustrated by their soon to be ex-spouse continuing to maintain the same annoying personality traits that played a part in their decision to divorce in the first place. It is a little like being mad at an orange for being juicy. Although, it is alright to encourage positive behaviors it is just frustrating to try and change someones essential nature when that is unlikely to ever occur.

Behavior can certainly be changed or modified by Court Order. People often are more willing to do what they should do when the alternative is being held in contempt of court. The possibility of time in jail is an excellent motivator. Thus, some negative behaviors can be modified. A person who is bad with money can be taught to pay child support on time. It is possible to get someone to visitation on time. Any behavior reduced to an order can be changed provided that negative reinforcement works on that indivisual.

Obviously any behaviors that involve violence, are illegal or are harmful to a child are not what I consider part of someones essential nature. Yet, these behaviors also may not be easily changed. The solution to dealing with these behaviors may be restricted visitation or limited contact.

It is best to reserve energy for fighting battles that can be won. Most of the time the frustration involved in changing a person's essential nature is not a battle worth fighting. There is value in peace of mind.

Green Lantern

2011-07-12T14:40:00.000-07:00

Every summer I look forward to the summer movies. I was certainly looking forward to see the Green Lantern. I was disappointed. The movie was awful. The millions of dollars spent on special effects could not make up for a script that didn't even try.

I understand that Hal Jordan (a/k/a The Green Lantern) saw his father die. I understand he was a screw up who couldn't make a commitment. I understood his potential to be paralyzed by fear. None of these flaws made me care for him.

It is also true that good writing and acting can make a character more empathetic when that character is flawed. Certainly this technique worked for Batman and Iron Man. In Batman Begins Bruce Wayne (Christian Bale) must learn to tame his inner demons. He is filled with anger brought on by his parents death. His emotional pain made the viewer feel for the character. Bruce Wayne is not a poor little rich kid but a flawed hero. A large portion of the movie was dedicated to examining his Psyche. The same can be said for Iron Man. Tony Stark (Robert Downey Jr.) is struggling with his father's legacy and his own self indulgence. At the end of these movies it is as much about defeating the bad guys as coming to grips with the character's need for self actualization.

In the Green Lantern it is unclear what Hal Jordan has learned from his battles. I still wonder how wimpy the Green Lantern Corps must be in that despite their years of service they could not defeat a monster that Hal Jordan could defeat with ease. It is also unclear how Hal's battle with fear and evil caused him to grow as a person?

Form over substance will continue to be a problem in the movies as in life. Would this movie have been made based on the script alone without the promise of impressive Computer Generated Imagery? Since this is a legal blog I should note that sometimes this occurs in the courtroom as well. Lawyers sometimes believe that by force of will the judge or jury will side with them. Yet no matter how convincing an argument it must be based on a solid foundation of facts, evidence and the law.

I have not given up on the summer yet. I hope that the next movie related blog I write will be glowing praise.

Valentine's Day

2011-02-14T13:52:00.000-08:00

It may seem odd that a family law attorney is writing about Valentine's Day. After all a divorce case has far more to do with dollars and cents than hearts and cupids. In part that is because courts are very good at dividing money and not so good at issues of the heart.

A divorce is stressful and can have a substantial and real emotional impact. What happens in the court is not going to resolve emotional issues. It is alright to seek counseling or speak with a Minister, Priest or Rabbi about healing the soul. Often people are surprised when the divorce is complete that they are still not done emotionally.

When children are involved some issues may not be resolved until the children are done with college. My father's old business partner use to say, "It's not over until the youngest grandchild has finished college.". That being said you can divorce your spouse but not your children. Children need to know that they are loved and secure. That both parents will always love them and care for them.

That being said I want to wish everyone a happy Valentine's Day. I hope everyone is loved. I hope everyone has someone to love.

Slavery - A Modern Day Problem

2011-01-11T07:45:00.000-08:00

The reading of the United States Constitution by the newly elected members of the House of Representatives skipped the parts of the document that made reference to slavery. They did not want to remind the people that slaves were considered 3/5 of a person (United State's Constitution Article 1, Section 2). Slavery is a part of our history we can't hide from. Even the Bible makes uncomfortable references to slavery (Exodus 20:21, Ephesians 6:5). Is slavery just an embarrassing reminder of an uncivilized past isn't it?

A friend recently reminded my that the 13th Amendment does not end slavery. In part it reads: "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction". (13th Amendment - United States Constitution). In other words prisoners can be treated as slaves. They also are being used as slave labor throughout the country every day. Why should this cause concern? After all they were convicted of a crime.

Illinois is broke. The recent tax increase attests to that. Housing prisoners costs a lot a money. More than $30,000 per year per person. At a sentencing hearing a judge is required to, "...consider the financial impact of incarceration based on the financial impact statement filed with the clerk of the court by the Department of Corrections;". (730 ILCS 5/5-4-1). Yet, sentencing gets more harsh each year. The tax increase wont solve the state's financial problems. People are looking for a way to decrease costs and increase revenue.

The sentences handed out for non-violent drug crimes in Illinois often exceed the sentences for murder. Federal sentences most of the time involve greater prison terms than state charges. Jails and prisons are full. The United States, by far, has more citizens in prison than any other nation. This includes China which has a population that is around four times that of the United States of America.

The problem of overcrowded prisons and not enough money to support them may lead to a disturbing solution. It could lead to a new slave nation. Private for profit prisons have a huge incentive to encourage harsher prison sentences. This is even more so if they can avail themselves of free slave labor. Illinois at this time does not have private for profit prisons. The Private Correctional Facility Moratorium Act, bars private prisons in Illinois. (730 ILCS 140/1-140/4). That being said according to Wikipedia as of the year 2000, there were 153 private correctional facilities with a capacity to hold 119,000 inmates in the United States (Wikipedia).

Even if a state does not rely on private facilities to house inmates they can still benefit. Illinois is not opposed to using prison labor. According to the Illinois Department of Correction's web site the use of prison labor is on the rise in the last two decades. Other states have also gotten in on the action. Including states that rent prisoners to big business at discount prices. Slavery may not violate the 13th Amendment but it may violate the 8th Amendment. The 8th Amendment states, "Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.".

Is there a better win the war on drugs than putting non-violent offender is prison. Is there a point when slave labor in and of itself is considered, "cruel and unusual"? Should the over representation in prisons of African Americans, when compared to the general population, cause concerns when the issue of slavery is addressed? Perhaps, new blog topics for the future.

Divorce and the Holidays

2010-12-17T07:46:00.000-08:00

Either you look back at the holidays with a sense of childhood wonder with dreams of sugar plums, or you look back at the holidays wishing you had a sense of childhood wonder with dreams of sugar plums. The best Christmas, Hanukkah, Kwanzaa and/or Eid al-Adha centers around children. That does not mean the best X-Box, Wii or Playstation. It means togetherness, love and family.

Thus, the process of divorce can certainly have a negative impact on the holidays. That is why if possible it helps to work together. Even at the cost of personal bad feelings. It will not be lost on the children that their parents were able to put bad feelings aside for the holidays.

There are areas of compromise. Some families celebrate Christmas on Christmas Eve and others on Christmas. Thus, that can be a good dividing point for visitation. Also, the Christmas break is usually at least two weeks and covers four special days: Christmas, Christmas Eve, New Year's Day, and New Year's Eve. Hanukkah varies year to year based on the Jewish Calendar. That being said, you can determine when Hanukkah will be each year. Muslim holidays also use a lunar calendar and vary year to year. Also, over eight days under most visitation schedules the children will have at least a few days with each parent.

Last minute fights over holiday visitation do occur. Thus, most of the time a compromise can be reached. It is important not to let bad feelings associated with the divorce interfere with the children's holiday experience.

Love one another and have a great holiday from the Law Office of Scott Lerner.

Top Scary Movies for Halloween

2010-10-26T11:24:00.000-07:00

It is the time of year to talk about Halloween and scary movies. This blog entry does not have much to do with the law. Although, I encourage you to contact the Law Office of Scott Lerner if you go on a killing spree and need representation. I do frown on such behavior and encourage peaceful ways of resolving your differences.

I'm making a list of my top 10 favorite Horror Movies. It is not in order. If you make the list you are already a winner.

The Shining - (the original) - The Stephen King story is great but the direction of Stanley Kubrick makes it a classic. Also, the acting is fantastic. I still get a chill when the twins say, "Come play with us, Danny. Forever and ever and ever."

The Omen (The original from 1976) - The juxtaposition of timeless evil in a little boy just gives me a chill. This movie takes such an unbelievable premise and makes it real. Who needs modern Hollywood special effects?

The Thing - To me this is John Carpenter's masterpiece. Halloween never scared me very much. The Thing plays on your sense of isolation and claustrophobia.

The Sixth Sense - How can M. Night Shyamalan make such a great movie and such bad movies afterwards? Given its PG-13 rating it goes to show that gore, sex and bad language are not necessary for fright. When the father is watching the video-tape the look on his face expresses far more horror then any special effect can.

The Ring - Is there a pattern or two on the list? So far the movies all concern a child. Also they all start with the word "the." Based on the Japanese movie "Ringu" this adaptation is nightmarish. The premise seems silly but it works. The scariest thing to come from Japan since "uni."

Pet Semetery - Little kids coming back from the dead just scare me. Fred Gwynne should have received an Oscar. Most Stephen King books don't make great movies. "Pet Semetery" and "The Shining" are the exceptions. Both also involve Native American burial grounds.

The Orphanage - I'm not a big fan of subtitles but this film is well worth the effort. The atmosphere of dread. The dead children. This movie is just spooky. Another movie that does not need a lot of special effects to be effective.

Hellraiser - This film is original and scary. It paints a new picture of hell on earth. The only Clive Barker movie on the list but "Candyman" is listed as an honorable mention.

Rosemary's Baby - I purposely did not include older movies (this might explain the absence of "Psycho" from my list). This movie I made an exception for. Roman Polanski may be a good topic for my law related topics but this movie speaks for itself. It shows even an infant can be scary.

A Nightmare on Elm Street (the original) - Wes Craven made some scary movies. "Scream" and "The Serpent and the Rainbow" both deserve honorable mention. Yet, a monster that can enter your dreams is a monster well worth being afraid of. The bastard child of a hundred maniacs is one evil dude.

Top ten lists always provide room for argument. What scares me might not scare you. My life experience impacts my list. I am not a fan of your basic slasher film. I prefer a supernatural element to my movies. I could have easily made this a top twenty list and included all of those movies receiving honorable mention and listed below.

Honorable Mention: The Exorcist, Candyman, Alien, Friday the 13th, The 9th Gate, The Fog, Night of the Living Dead, Saw, Evil Dead, An American Werewolf in London.

Case 39 and the Illinois Department of Children and Family Services

2010-10-07T07:11:00.000-07:00

I saw the movie Case 39. I guess I should say spoiler alert before I go on. This is not a movie I want to endorse or recommend but it did make me think about our legal system and how we deal with children.

The movie involves a woman who works for a social service agency concerned with abused and/or neglected children. The California equivalent to the Department of Children and Family Services. Emily (played by Renee Zellweger) is assigned to an unusual family. She feels the daughter is being abused. She ends up rushing to the home just as the child's parents are shoving the child into an oven.

The child is saved by Emily and her friend Detective Barron (Ian McShane). The result is that the parents are sent to a mental health facility and the child ends up living with the social worker. The child turns out to be an evil demon that feeds on death and misery.

Evil child movies always give me the Heebie-jeebies. The juxtaposition of the innocence of a child with the evil of an ageless creature is unsettling. This movie lacked the chills of The Omen or The Exorcist but the idea is the same.

The point I want to make is not that they don't make movies about possessed children as well as they did in the old days. The point is that our legal system has some severe limitations when dealing with children.

Emily is hard working and caring. That being said she had 39 cases in her caseload and limited time to spend on each. She also had no children of her own and had a difficult childhood. Thus, little real life experience concerning how to raise children. Although, fictional the description of Emily is not far from a realistic account of the problems facing social workers.

In these types of cases a social worker makes a decision based on a moment in time rather then over a period of years. I'm not saying they necessarily make the wrong decisions only that their decisions are based on limited information. The Courts have the same limitations. The Judge's understanding of the case is limited to the evidence presented by the parties. The Court often never hears from the children personally. There are certain exceptions to the hearsay rules in Illinois related to children in abuse cases. In addition it is not unusual for the parties not to seek the testimony of the children.

The hard cases are not the sever abuse cases or the drug exposed infants. The hard cases involve the close calls. Foster homes are often worse then leaving the child where she was at. Some foster homes contain other children who have been abused. These children may act out against other foster children in the home. Relative placements can also be troubling. If a mother abuses her child then giving the child to the grandmother who raised the abusive mother may be a mistake.

Supervision is also difficult. Social workers have a large caseload. It is difficult to monitor all the the placements. I court hearing every six months or so is no guarantee anyone is providing proper services and supervision to those involved. In addition case workers are often lacking in the experience and education to deal with children with sever psychological and emotional problems.

I don't have the statistics as to how many children who grow up in foster care end up having a successful and productive life. I will say based on my experience that many of them grow up to have their own children raised in foster care. I can also say that success stories are the exception and not the rule.

Antiques Roadshow - The Good The Bad and The Ugly

2010-08-09T11:24:00.000-07:00

I would like to say my object was worth a million dollars and that I’m moving to a tropical island. I would like to say that but it would be lying. We drove to Des Moines, Iowa and saw the Roadshow live and in person on August 7, 2010. The drive was over six hours so this was something we really wanted to do. Was it worth it? In some ways yes and in others no. Was it what I expected? In some ways yes and in others no.

When we arrived at Hy-Vee Hall I was surprised at how little hoopla surrounding the event. There were not a lot of huge signs, scalpers or snow cone venders. They did have a stream of people and objects going into the hall. The volunteers were pleasant and did a good job of getting us to the right place. Although the line was long, it moved very quickly and the people were polite and did not seem to mind waiting. I amused myself by looking at the people with the biggest items. These included a plane prop longer then I am tall and a huge copper bust three times as big as an ordinary head. I would like to have seen more items in line but most people boxed their items. They did have reruns of the show projected on screens throughout the room without sound but with sub-titles. The hall served sandwiches and snacks at a concession stand but nothing worth mentioning.

After the two hour wait in the first line we arrived at a tables with volunteers who divided us into categories. The objects we brought were silver, collectibles and a painting. Toys, posters, paintings and collectibles had the longest lines and silver and Asian art were the shortest lines. Up until this point the organization of the event and the demeanor of all the people involved were surprising excellent. Our tickets were for 3:00 p.m. and the first tickets were for 8:00 a.m. so everyone working for the show had to be tired by the time we got to them.

The set was surrounded by blue screens that formed a large circle. The long lines for each appraisal table were outside the blue screens, thus not visible to the tv viewer. I was surprised how open the set was. The filming was done right in the middle of all the appraisal tables that ringed the set. While we were in the "inside" line for paintings, Mark Walberg taped the introduction. Who knows maybe I will be in the background? The filming of objects selected for TV was done right in the middle of all the commotion.

I was also surprised that everyone I wanted to see was in the hall, Nicholas Lowry (or as my wife and I call him Penn since he looks like Penn from Penn and Teller), a Keno brother (or maybe both since they do look alike) and Noel Barrett were all there as well as most of the people you see on television every week

The experts sat behind a desk with a couple of books and most had a laptop computer. At each table were two to four experts. When an opening was available you would walk up to the appraiser. As I mentioned the filming took place at tables in the middle of the blue screened circle. Although items were filmed while I was there, I did not see an initial appraisal of an item that made it on to the television.

The first table we went to was the painting table. My wife who brought a painting, felt the appraiser seemed a bit short and disinterested. She felt some of the other experts were more engaged in their work of the day.

At this point I went to the silver table. This was fortunate since silver had only three people in line. I believe my expert was Nicholas Dawes. He was polite and spent a lot of time with me. I should point out there was no line at that point. Clearly my items did not “wow” him but he was still patient and explained things. He did suggest items that he felt would be good seek out that were similar to the items I collected. He also suggested a museum in New York I might like to go to.

The next stop was collectibles. My wife got in line first when I left for silver. Apparently a man had a seizure in the line next to her, and had to be taken out by ambulance. Another guest took pictures of him and was escorted out of the Roadshow (pictures are not allowed past the initial appraisal point and this man was taking pictures of everything. As for other odd events I heard a big piece of glass break and that certainly caused my heart to go out to someone.

At Collectibles my wife was happier with her appraiser, Mark Moran who said her item was not terribly valuable but was “cool”. He spent a fair amount of time discussing the item with her and suggesting ways she could determine a value on her own. The collectibles booth was my biggest disappointment of the show. I brought a medal with connections to the White House. I did my homework and could not find any idea of the value of the item on line. That is why I brought it to the show. The appraiser said after only a moment that he had not seen a similar item and thus could not give a value. I was very disappointed. I understand he was in a hurry and had a lot of people in line but he did not seem to make much of an effort. I would have been happy if he at least could point me in the right direction of another appraiser or dealer I could ask. I understand it was late in the day and there was a line but this was a disappointment.

If I were to go again I would certainly choose my items better. Rather then bringing collections of things I would bring my best item. I considered my collection of presidential items as one item. They did not. Also, they do not have the time to really consider a number of items. I also would not choose an item for which I could not find any information on the web. After all, these folks are doing a lot of the same research you and I would do. If I can’t find a similar item there is a good chance in two minutes they can’t either.

Was it worth the drive? For a one time adventure? Yes. Would I do it again? Yes, as long as I don’t have to drive six plus hours. Did it exceed my expectations? No, the appraisers are to busy to do real research. It also provided no opportunity to meet the appraisers or watch the appraisals of other items. I should also note that thousands of people go through each Roadshow stop. Only a few items are selected, The odds of even being considered for television are very low. That being said maybe we will get lucky. My wife and I visited the feedback booth and might be in the background of some appraisal so look for us. I would have also liked to see an Antiques Roadshow t-shirt stand. I am looking forward to watching the show now that I have the insider's scoop on what really goes on. I would love to see a behind-the-scenes show as well. From listening to Mark tape the introductions, we discovered the Des Moines shows will start off the season in January.

The Antiques Roadshow

2010-07-25T18:06:00.000-07:00

The Antiques Roadshow

I’m planning to go to the Antiques Roadshow! I’m ready to cross it off my bucket list. What should I take to the show? It would be nice to have an item worth a lot of money but I don’t. Even if I did that is no guarantee the item will be selected for television. The book Antiques Roadshow Behind the Scenes by Marsha Bemko gives an insider’s view of how the show works. She tells the story of an individual who brought to the Roadshow a Honus Wagner baseball card. This particular card is considered the most valuable of all baseball cards. Copies have sold for well over a million dollars. Yet, the card did not make it onto the show. Why? The owner knew its value. Most collectors know it is worth a fortune. So why put it on television? To do so is simply not good TV. It does not surprise, educate or entertain the audiance.

If you have watched the show long enough you realize a good story and a good reaction from the guest are both as important as the object itself. I don’t have anything of great value. At least anything I’m aware of I searched the house as soon as I found out about the tickets. Believe it or not I could not locate a single Faberge egg, Tiffany lamp, or Patek Phillip watch. I checked everywhere but no luck.

Of the objects I own that have some limited value, I generally have some idea of their worth. Thus, it is pointless to have someone tell me what I already know. Why waste my one opportunity with this caliber of antique experts to have them tell me what I already know.

What I want to bring must be rare. Yet, rare may not be enough. Some things are rare because no one wants them. There are only fifty “The Law Office of Scott Lerner” tote bags in all the world. Are they rare? Yes. Are they valuable? No. Something is valuable because there is a demand for it. It all comes down to supply and demand. Thus, even with a very low supply, without the demand an item will have little value. So yes, I’m looking for rare, but at the same time, I want to pick something someone wants.

Being old is also nice but may not be the deciding factor. Supply and demand also might explain why being old is not the same as being valuable.Some things that are old are not worth as much as the same things that are new. Think of that freezer from the 1950's in your basement. Consider the value of a Star Wars or Beatles lunch box compared to a turn of the century lunch pail. Being old in no guarantee of being valuable. There was bad craftsmanship two hundred years ago as well as today. As a general rule I would prefer a 200 year old chair to the one I pick up at Walmart, but age alone is not enough.

Being cool, trendy and generally in demand is important. Remember beanie babies? Some things simply go out of fashion. I would guess Shirley Temple collectibles and Edgar Bergen collectibles will likely go down in value in the future. The fans of these individuals are growing older and new fans have not replaced them. Thus, I assume there will be less demand for these objects in the future. The legacy of Elvis and the Beatles goes on, but the average silent movie star has been forgotten.

For all the silent movie star collectors out there, remember I could be wrong. Just like the stock market or any other type of gambling, predicting the value of antiques requires a bit of fortune telling. Also, the economy plays a role in antique values. When the economy is bad fewer people have money to spend on unnecessary expenses. Let’s face it, an antique Rolex watch is cool but my cell phone keeps better time and requires less upkeep. The economy of the United States is not the only economy that matters. As an example the Chinese people have more disposable income then in the past. I would predict antiques with origins from China will increase in value in the future. .

Specific Ideas

I want to bring an item I have no idea of the value of. If I can look it up online then I will not bring it. I’ll have a room full of experts, and I intend to use them. A watch, a guitar, or any item with a price guide is not on my list.

I want the object to be small and not breakable. I live too far away to have them pick up my furniture and I don’t want to walk around with it. I also don’t want to walk around with a clock or any object that is large and breakable. That includes a tea set or a large vase.

I want it to be a part of a collection. The maximum number of objects you can bring is two. Yet, a collection counts as one. So if there is something I collect that is small such as pens, political pins, or match safes, then why not bring them all? That way I will get much more information and appraisals.

I want it to be interesting or fun. I’m not saying I wouldn’t like a Tiffany iridescent vase from the turn of the century. Such vases are beautiful and rare. That being said I have seen them on the Roadshow before and what more can you say about Louis Comfort Tiffany? I would rather bring in a rubber spleen from a famous zombie movie. It may be worth less money and involve less craftsmanship but it’s way more fun.

I don’t care about age. Lets face it, 18th century items or earlier raise eyebrows. 19th century items not so much. I don’t have any impressive items from the 1700's or earlier. So I am going to pick the item I think is the most impressive in and of itself. If I have a better item that is not as old I’ll bring that. Obviously that is not a hard and fast rule. Any Abraham Lincoln artifact is more impressive then a Kennedy item. Yet, not all Civil War items are impressive. As an example a Union Discharge document or a spent bullet has very limited value. At the same time some World War I and II can be very impressive.

I won’t bring anything that was intended to be collected. If it was made to be a collectible odds are it’s not worth much. Anything made by Franklin Mint, Hummel, Department 56, or Precious Moments is not going to make my list. This also includes comics and sports cards. Some of these items may be worth a lot, but most are not and none that I have.

I have not made my selection yet but will soon. Maybe these rules will help others pick their items. Who knows, maybe if I do a good job you will see me on television.

Send me an email before August 6, 2010 with great ideas for what to bring to the Roadshow. My email address is on my web site. The first three emails that include a name and physical address will get a genuine rare The Law Office of Scott Lerner tote bag. United State’s residents only. The author is not responsible for misdirected mail or email. I will only respond to the winners. All entries after August 6, 2010 will be deleted without being read.

The Internet and the Law

2010-05-13T09:06:00.000-07:00

More and more people have come to me with issues related to the Internet. In divorce cases it is not at all unusual to find individuals making statements or providing photographs on social networking websites that are harmful to their case. It is harmful for people seeking custody to talk about or provide information concerning drug use or other inappropriate behavior.

In Illinois the grounds for the dissolution of marriage should not have an impact on the property distribution. That being said risky Internet dating behavior could have an impact in a custody fight. Exposing children to strangers or people you have only met online can be risky behavior.

Another common issue relates to online auctions. I collect unusual items. Thus, I spend time on online auctions. I have been involved with a number of divorce cases where a party will claim to have no income but will have a lot of activity buying and selling on auction websites. This may show an additional source of income, dissipation of marital assets, or simply make you wonder where the money is coming from to buy this stuff.

Criminal law is also impacted by the Internet. People are far more concerned about criminal records. The Internet makes it very easy for employers to discover past convictions or even past charges that may have been dismissed. As a result I have had more calls concerning sealing or expunging criminal records.

It is also risky behavior to post photographs or provide admissions of criminal behavior on line. The government may be able to obtain a subpoena based on the photographs. What you post on the web is not private and you have no reasonable expectation of privacy.

Over all the Internet is great. It is a useful tool. If not for the Internet you wouldn't be able to read this blog. It is important to read blogs like mine to obtain general information and to have fun. If you have a legal problem talk to a lawyer. Don't apply general advice to a specific problem.

Why do smart people talk to the police?

2010-01-13T13:19:00.000-08:00

Everyone with a television knows the Miranda Warnings. Miranda vs. Arizona was decided over forty years ago. Miranda v. Arizona, 384 U.S. 436 (Supreme Court 1966). Yet, even very smart people give statements to the police. Why is that?
Perhaps the first reason is that the police are good at what they do. They have been doing this for years. They have had training. It is a mistake to believe you're going to be able to control the situation.
The second reason is that you were raised to cooperate with authority figures. People tend to want to cooperate. People mistakenly believe that cooperation will be rewarded .
The third reason is that people believe if they make a statement the police will drop the case. The officers like to encourage communication by saying "Well, if you don't want to give a statement then I guess we will have to consider his or her statement alone." or "Don't you want to tell your side of the story?"
Most of the time the police have already sided with the first person they spoke to. Subsequent statements rarely have any impact on that decision. If someone is hurt or property damaged it is very unlikely the police are going to just let it go. Someone is going to be arrested most of the time.
Remember a confession is not always a confession. Television has helped me through some tough times. That being said it is often misleading when it comes to crime shows. The police don't always look for someone to blurt out, "I did it!". Just admitting you were there proves a good portion of the government's case.
A statement maybe taken out of context. You may not know all the facts. You don't want to create room for confusion or speculation for a jury down the road by making a statement at all.
Did you ever wonder why lie detector tests are used so often? In Illinois criminal proceedings they are not admissible. A polygraph test is unreliability. So why are they offered? The reason is simple if the government can get you to talk they have already won.
Also, if you do make a statement how do you know the police will accurately quote you? I have a t-shirt as well as a sign in my office that reads, "You have the right to remain silent. Anything you say will be misquoted, then used against you.". The reason I bought the t-shirt is that it is funny. The reason it is funny is because it is true. I have been doing this for a long time and It is very rare for someone charged with a crime to agree that the police reports reflected accurately what was said and done. Even recorded statements are often tainted by the officers coaching and preparing the defendant prior to turning on the tape.
So, what do you do? Your first step should always be to call The Law Office of Scott Lerner. Your next step should be to inform the officers in an unambiguous manner that you do not wish to talk unless your lawyer is present. Do not initiate any further conversation. If you can't afford a private attorney then ask for the public defender to be appointed.
If the matter goes to court you will have an opportunity to present your side of the story. You will be able to call witnesses and to testify if you so desire. So take a deep breath and be patient.

Halloween-Vampires, Slayers, and the Law

2009-10-16T12:43:00.000-07:00

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.

Conclusion

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.

How much do you charge?

2009-10-07T13:11:00.000-07:00

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.

higher education and divorce

2009-10-02T07:19:00.001-07:00

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 14^th 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 14^th 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 14^th 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 (2^nd 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 14^th 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 14^th 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 14^th Amendment of the United State’s Constitution. The 14^th 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 1^st 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 1^st 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 1^st 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 (4^th 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.

Dollars & Common Sense

2009-04-08T07:08:00.000-07:00

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".

Follow Up

2009-03-31T07:35:00.000-07:00

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.

Can we afford to be self rightous?

2009-03-25T13:38:00.000-07:00

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.

Werewolves and Fruit Knives

2009-03-06T12:07:00.000-08:00

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.

OCTOMOM

2009-02-23T11:50:00.000-08:00

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.

Learning to Cope with Divorce

2009-02-19T07:44:00.000-08:00

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."

When Is It Time to Get Divorced?

2009-02-10T16:08:00.000-08:00

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.

Welcome

2009-02-04T18:08:00.000-08:00

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
217/607-2227
lernerlaw@yahoo.com
www.scottlernerlaw.com