What you should know if you are going to purchase or already own property with another person or business:

By Attorney Michael S. Fritz, Partner at Hall, Rustom & Fritz, LLC

What are some legal rights I have when I own real estate with another person/business and we can't agree on what to do with it?  

There are many circumstances in which people hold joint title to land.  Perhaps you and your friend purchased some hunting land years ago but now you want to sell it but he refuses to cooperate despite your requests to put it on the market. Or maybe you and your siblings inherited your grandfather’s old house yet no one can seemingly agree on what to do with it.  There is a lawsuit you can file designed for those situations in which two or more owners appear on the title/deed of the property and one party is seeking to force the force the sale or separation of their property.  It is called Involuntary Partition. 
  

Involuntary Partition:  The law suit in which joint owners of real estate can sever their interest in the land or force the sale of the property to recover their portion of the value. 

 

Once the lawsuit is initiated by one of the owners, the property is eventually appraised or examined by a set of qualified commissioners who then file a report with the court.  This report indicates whether the property is capable of being physically divided or if a sale is necessary to adequately compensate the owners for their respective interest in the property.  Whether the property is divided or sold, each owner is entitled to reimbursement for contributions made toward the property such as mortgage payments and real estate taxes.  The theory is that if one owner allowed to enjoy the equitable value or worth their share of the property then they should also share in the costs and expenses associated with it.  For example, if Jack and Jill each own 50% of the hill, then each of them are liable to pay 50% of the real estate taxes on it. So if Jack pays 100% of those taxes then upon the sale of the property at the conclusion of the partition suit, Jill would have to reimburse Jack for her portion of 50% of the real estate taxes via the sale proceeds. 

There are several facts that must be present in order for a party to bring forth a partition law suit. At Hall, Rustom & Fritz LLC, our attorneys are experienced in real estate law and transactions. Our rates are reasonable and the cost of the legal work pales in comparison to the problems that could arise if the wrong type of legal action is used.
 
To schedule a consultation regarding your case please call the attorneys at Hall, Rustom & Fritz LLC at (309) 699-4691. Our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Real Estate transactions, Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall, Rustom & Fritz LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

ESTATE PLANNING TIPS ALL PARENTS SHOULD KNOW

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

Throughout my career practicing law, I've noticed clients' preparation in planning a family.  You learn you are going to have a child and you are overcome by emotion.  The planning starts and you try to think of everything to ensure the protection of the new life you are bringing into the world.  You buy a crib, baby clothes, pampers, and anything you can think of that your baby will need.  However, one important oversight is the preparation to protect your child if you die or become incapacitated.  This article should serve as a brief introduction to some easy steps you can take to prevent a legal catastrophe from occurring should something tragic occur to one or both parents.  

We’ve all heard the expression that “you can’t take it with you when you die”; but at least the Illinois Probate Act sets out a “default” guideline as to who inherits your personal property from your estate if you die without a will. Unfortunately no such rule exists governing your most prized possessions – guardianship of your children.

Guardianship estate planning is critical for any parents, regardless of your personal worth. The guardian is the person appointed to care for the well-being of your children, essentially stepping into the roles of Mom and Dad. There are two types of guardianships – guardianship of the estate and guardianship of the person. The guardian of the estate is the person/entity responsible for your child’s financial affairs and management; the guardian of the person is responsible for the child’s care and well being. You can elect to have the same person act as both the guardian of the estate and person; or can choose different guardians for each role. Perhaps you want your brother appointed guardian of the estate, while your sister acts as guardian of the person. Another option is allowing two people to act as joint guardians if the situation is warranted – meaning each will have equal say in the up-bringing of your kids. The various possibilities and reasons are too vast to cover in this article.

Although Courts give considerable deference to who you nominate as guardian(s) of your children in your estate planning documents, a petition and court order is still required to deem them a legal, permanent guardian. Safeguards are in place to ensure that your children have a guardian while the court proceedings are pending. There are essentially four forms of guardianship that you should be aware of:

Short Term Guardian - A short term guardianship is effective upon the date stated in the written document but is only effective, at most, for 60 days. For example, “I appoint John Smith as guardian upon my death…” John Smith could then use this document as legal proof of guardianship of the child(ren) for up to 60 days.

Standby Guardian – The standby guardianship is nominated in the estate documents but unlike the short term guardian, he/she must first be appointed by the court for a temporary period until the permanent guardianship is determined. A standby guardian is not limited to 60 days.

Temporary Guardian – is the temporary guardian of the children. The difference between the temporary and standby guardianship is the fact that the standby was previously nominated by the parents during the estate planning process during their lifetime. That person is merely “standing by” to be either the Temporary and/or Permanent Guardian.

Permanent “Plenary” Guardian – this is the person or persons who will have guardianship over the children until such time that the children turn 18.

As a parent of two young children, I know first-hand the concerns and fears parents have about leaving your children behind. Guardianship provisions in your estate planning documents can help alleviate these concerns by giving you a voice in choosing who will care for your children in the event of your untimely passing.

If you do not have these safeguards already drafted and executed, it could lead to many subsequent problems, such as infighting amongst family members or going so far as the court deciding guardianship, an uncertain outcome.  If you are going to drive a car, you will need to have car insurance.  The same can be said if you are going to have children, you should have a plan in place to ensure their protection if some tragedy occurs.

Call you attorney to inquire as to the process for adding these clauses to your estate plan.  At Hall & Rustom, LLC, our rates are reasonable and the cost of the legal work pales in comparison to the problems that could arise if no plan is in place for your children.

To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Who Gets the Family Home During the Divorce Proceedings?

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

The papers were served, the divorce is underway but one question you may be asking is, “Who gets the house during the divorce proceedings?” 

Clients often ask me this question during their initial consultation and the answer is not as easy or as predictable as most would think or hope for.

The issue to determine who gets the home (or “the marital residence”) during the divorce proceedings is otherwise known as temporary exclusive possession of the marital residence. Section 701 of the Illinois Marriage and Dissolution of Marriage Act provides that the court may temporarily “evict” one spouse from the marital residence during the pendency of the divorce case “only in cases where the physical or mental well being of either spouse or their children is jeopardized” by the other spouse.

Generally speaking, each spouse has equal rights to the marital residence – the fact that they are getting a divorce does not change that. Therefore, one spouse cannot force the other from the residence unless it can be shown that occupancy by one spouse would jeopardize the physical or mental well being of the other spouse or their children. This means that the spouse who wants the other ousted from the home must petition the court and meet his/her burden of proof to convince the Judge that actions of the other spouse make cohabitation a threat to his/her or the children’s wellbeing.

You may be asking yourself, “What kind of acts or facts are enough to prove that our wellbeing is jeopardized?” Although there is no bright line test for such standard, simple bickering or unhappiness would unlikely be sufficient to meet one’s burden. The Judge has the discretion to determine if a particular set of facts are sufficient to prove the need to have exclusive possession of the marital residence but often these cases hinge on acts of abuse (physical and mental), substance abuse, mental stability, gross and repeated negligence which may endanger the safety of young children, etc.

Most divorce cases do not give rise to the level of hostility to warrant an award for exclusive possession of the marital residence; which is why it is not uncommon for spouses share the marital residence during the divorce case. Although cohabitation may be uncomfortable and awkward, the ability to stomach your soon-to-be ex-spouse can end up saving you thousands of dollars. Imagine taking your family budget and adding to that, additional payments of rent/mortgage, utilities, groceries and day care, in addition to the legal fees each spouse his paying to their respective attorney. Many couples simply cannot bear these additional costs, leaving cohabitation as the only realistic option.

A divorce is a stressful situation for all involved and experienced legal advice in the field of divorce and other family related matters can help alleviate that stress. The attorneys at Hall & Rustom LLC have tried many cases involving the issue of exclusive possession of the marital residence as well as other divorce related subjects. To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.

 

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

DIVORCE: Does it have to be a fight to the end?

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

Unfortunately for some, their marriages have deteriorated to such an extent that neither person can seemingly decide on a single issue – except for the fact that they each WANT A DIVORCE.  But not every divorce needs to be the knock- down, drag- out fight they hear about from their friends.  In fact, the most time efficient, cost effective method of divorce is the “Uncontested” or agreed divorce.  In an uncontested divorce, couples are able to combine their financial resources, as opposed to against each other, in an effort to pay for legal costs and attorney fees associated with the dissolution of marriage process.

Due to conflict of interests, a single attorney should not represent both parties in the divorce but will represent and advise either the husband or wife through the entire process.  The parties will negotiate and agree on the terms of the divorce outside the presence of that attorney and the attorney will then draft the corresponding documentation pursuant to the directions given to him by his client (of which both parties negotiated).  After the documents are drafted, the unrepresented party has the option to hire his/her own attorney to review and explain the documentation to ensure that the terms and meanings were drafted pursuant to the understanding of the parties.

The uncontested divorce process is essentially comprised of 3 to 4 stages/documents which are as follows: 

1) The Petition for Dissolution and Answer /or Entry of Appearance

2) The Marital Settlement Agreement

3) The Parenting Agreement (if child custody is applicable)

4) The Judgment for Dissolution  

The Petition for Dissolution – is the legal complaint that is filed with the court that initiates the legal proceeding.   It contains factual allegations setting forth the names of the husband and wife, the names of the children (if any), the date and county the parties reside and were married and the legal reason as to why the parties are seeking a dissolution of marriage.  The responding party files what is called an “Entry of Appearance” or “Answer to the Petition”.  In an uncontested divorce, this document is signed and entered by the other party and acts as his/her consent to the jurisdiction of the court.  Once these documents are filed, the responding husband/wife may never attend a court proceeding if he/she so wish not to attend.

Once the Petition for Dissolution and Entry of Appearance (otherwise called the pleadings) are filed with the court, the parties then create a contract called the Marital Settlement Agreement.  This contract will govern the distribution of marital assets and debts such as: the house, the cars, checkings/savings accounts, credit card debts, mortgage, etc.  In some cases this document will also include a provision for maintenance (aka alimony), if the parties agree and the facts merit such allowance.

The next document is called the Parenting Agreement (if applicable).  This document governs the terms of the child custody arrangement between the parties.  This document sets forth such things as parenting times each parent has with the children, who makes the medical decisions, educational decisions with the children, and child support and insurance coverage.  If the parties are unable to determine the custody issue on their own then Illinois mandates that the parties go to mediation with a neutral third party (usually an attorney or retired judge) to hash out the terms of their agreement.

The Judgment for Dissolution is the final order that dissolves the bonds of marriage between the parties.  The Judgment for Dissolution also incorporates the terms of both the Marital Settlement Agreement and Parenting Agreement making the terms of each court enforceable contracts.  It may also include a provision that gives the wife her maiden name. 

Whereas contested divorces can take many months or even years to complete, uncontested divorces may only take weeks, even days to complete from start to finish.  In most cases, only one court appearance is needed after these documents are executed.    The length of the time of the process usually depends on the cooperation between the parties and the availability of court time

It commonly is assumed to simply "go it alone" on, what appears to be, simple family matters.  You should always consult an attorney to determine what appropriate measures can be taken to protect your best interests.  At Hall & Rustom, LLC, we strive to think five moves ahead to protect not only your present interests, but your future interests.  To schedule a free consultation, email attorney Michael Fritz or call (309) 699-4691 to set an appointment. 

 
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Child Support Payments: I can't afford them! Can an attorney help me lower the payment amount?

By Michael S. Fritz, partner at Hall & Rustom, LLC 

A popular question we are commonly asked involves child support payments:  "If I can't afford the monthly child support payments, what are my options?"

This article's purpose is to address changes in the support amount and how important it is for you to consult an attorney to assist you in the support modification process.  Now you may wonder how much this process costs, especially if you hire an attorney.

While hiring an attorney could be expensive, it is important to consider the amount of money an attorney could save you by convincing a court to modify your monthly support payments.  The fear of paying for an attorney is usually always outweighed by the amount an attorney can save you over the course of many years of lowered child support payments.

Some basic rules in changing child support payment amounts are covered in Section 510 of the Illinois Marriage and Dissolution of Marriage Act, in that:

"Support may be modified as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification." 750 ILCS 5/510

So what does this mean?  It simply means that one's child support obligation can be changed after a petition to change child support, called "A Petition to Modify Support," is filed AND proper notice is given to the ex-spouse or recipient of support.

Failure to follow the requirements of this law can have devastating effects on those obligated to pay child support but who are no longer able to pay their original court ordered amount due to a decrease in pay or change in their employment.  Those who are making less money, or no money at all, are still obligated to pay the original amount of court ordered support if they fail to correctly file a request for modification in child support.

Example:

John is ordered to pay Susan $100 per week in child support beginning January 1, 2012.  John is a responsible father who is always current on his support until April 1, 2013, when the factory he works at shuts down and he is laid off.  John quickly obtains part-time employment but only earns a fraction of what he once earned.  John does what he can but is only able to pay $75 per week in child support which is over 50% of his income but less than $100 he was ordered to pay.  Even though John is paying far more than the percentage of what he should be paying, the fact that he pays less than his court ordered ($100 - $75 = $25) means that John is in violation of the court order and will continue to accrue judgment interest on the outstanding balance until John properly files a petition to modify support.

In other instances, the recipient of child support is cheated if the ex-spouse or obligor received an increase in pay or obtained a large Christmas bonus but failed to provide any portion of that for support.  There is a wide variety of compensation that qualifies as "income" for child support purposes and each child receiving support may be entitled to their respective portion.  This too may be obtained by either enforcing the current court order for support or filing a modification for support to increase the regularly scheduled support obligation.

You will be entitled to a hearing where a judge will consider the evidence. An experienced attorney will know the important evidence to present to the judge for his/her consideration. The other side will be allowed to present evidence showing they are still entitled to the same amount or even more. Your attorney will be allowed to cross examine the opposing witnesses. In the end, if the hearing is presented properly, you have a high likelihood of convincing the judge to modify the support amount.

The importance of these proceedings cannot be underestimated. You should not try to file these court documents without experienced legal guidance.  It commonly is assumed to simply "go it alone" on, what appears to be, simple family matters.  You should always consult an attorney to determine what appropriate measures can be taken to protect your best interests.  At Hall & Rustom, LLC, we strive to think five moves ahead to protect not only your present interests, but your future interests.  To schedule a free consultation, email attorney Michael Fritz or call (309) 699-4691 to set an appointment. 
 
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.





LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Family Law Issue: What should I do about paying college expenses for my children when my spouse and I are wanting to divorce?

By Michael S. Fritz, partner at Hall & Rustom, LLC

Many people are aware that a person’s child support obligation terminates when either the child turns 18 years-old or graduates from high school, whichever is later; however, Section 513 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) also allows for the payment/contribution for expenses related to a child’s college or higher education.  §513 considers a wide array of factors and circumstances in determining if, and what amount, a person must contribute to their child’s college or higher education expenses.  Below are some questions I regularly receive from clients regarding to college expenses:

a) Must my ex-spouse pay for my child’s educational expenses?

No. Although this is not the common result, a court is not obligated under §513 to order a parent to contribute to the college/educational expenses of the child.  The court considers many factors pursuant to §513 in making its determination as to who should pay and what amount.  If, after analyzing the relevant facts , the court finds that one parent is unable to contribute towards these expenses, the judge may find that the he/she does not need to contribute.  Each case is different, and although there is no “cookie cutter” answer as to who pays for what, a courts commonly will require all parties: mom, dad and the child to contribute at least something towards that child’s higher education.

b) Can the judger order contribution to my child’s trade school?

Yes.  §513 educational expenses extend to both college/university expenses, as well as professional training, (and in some cases high school G.E.D.).   The theory behind payment towards §513 educational expenses is that many parents have the ability to contribute to the success of their children’s future by contributing to their child’s education and training, regardless of what that profession may be.  Illinois law recognizes that not all children will attend the traditional college or university, therefore §513 allows for the payment of professional, vocational and even G.E.D. training/schooling.

c) Is the income of my ex-husband’s/ex-wife’s spouse considered in determining contribution to the payment of college/educational expenses?

Yes. Unlike the determination of child support, a spouse’s income can, and will be, considered by the court in determining one’s ability to contribute to the payment of educational expenses.  There are many factors the court considers in determining whether to award any money toward the payment of child’s college/educational expenses, one of the most significant factors the court may consider is “the financial resources of both parents”.  For that reason, a spouse’s income will directly impact the court’s determination as it directly affects the financial resources of a particular parent.  This factor is worded to accommodate those who have remarried and in the processes substantially increased his/her financial stability.

d) How will my child’s choice in college affect what I am ordered to pay? (i.e. -public university, private university, and community college tuition rates and costs)

This is one of the most commonly asked questions I receive from clients. The answer I tell them is always the same, “It depends.”

The unique thing about §513 education expense cases is that no case is ever the same, and the outcomes vary on the individual case facts.  As previously discussed, the courts have a wide discretion in awarding these educational expenses and will look at a wide array of factors in reaching its decision.  Perhaps the child is extremely gifted and is eligible for scholarships such that his/her tuition to Harvard is no more than in-state tuition.  Or perhaps the child is concentrating in a particular field such as religious studies and must attend a specific educational facility to accommodate his/her area of study.  These are but some of the various factors that will govern a court’s decision in awarding educational expenses.

Another factor in the award of college expenses also depends on the presiding judge.   Some judges may order that a certain percentage of the educational expenses are split between the child and the parents in accordance with that particular institution’s tuition rates.  Others may simply order the contributing parent to pay a set dollar amount toward the child’s education regardless of the learning institution the child selects and it’s respective costs.

e) Can a court order payment toward post-graduate schooling such as medical or law school?

Yes, although the court is ultimately given the discretion to decide what amount, if any, the parents or parent should pay toward the post-secondary education of the child.  §513 expenses are determined on a case-by-case basis; meaning there is no black and white rule the judge must follow in awarding these costs.  The Judge is given a wide range of discretion to determine what amount, if any at all, the court should award toward the payment of post-secondary educational expenses.  The court will look at variety of factors in reaching its determination, and depending on the circumstances, find that the child is responsible for all, some or no expenses for post graduate education– each case is unique to the set of facts.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.






  

LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Reinstating your driving privileges in Illinois: What You Need To Know

By Jeffrey R. Hall of Hall, Rustom & Fritz LLC
 
                In Illinois, whenever you receive a conviction for Driving Under the Influence of Alcohol, your Illinois driving privileges will be revoked.  It is revoked indefinitely unless you formally request reinstatement from the Formal Administrative Hearing office at the Secretary of State.  Unfortunately, qualifying to apply for reinstatement depends on how many DUI convictions are on your driving record (or reported to the Illinois Secretary of State).

               The first DUI conviction reported on your record will result in the loss of your driving privileges for a minimum of 1 (one) year.  If you are convicted of a second DUI offense within 20 years, you will lose your driving privileges for a minimum of 5 (five) years.  A third DUI conviction will result in the loss of your driving privileges for a minimum of 10 (ten) years.  A fourth or subsequent conviction will result in the loss of your driving privileges for life.

               Most people that apply for reinstatement and proceed to formal hearing without the benefit of any attorney to assist them are rejected.  More importantly, most people will misrepresent certain facts that end up hurting them more than helping.  It is imperative that you find an attorney with the experience, success, and motivation to advise you through this process to maximize your chances for driving relief.  At Hall & Rustom, L.L.C., our attorneys concentrate in this area of law and will be able to assist you through the painstaking process while minimizing your exposure for denial.

What is the process to reinstate my driver’s license after I was revoked for DUI?

               The typical process to reinstate commences by reviewing your driving record to determine whether or not you are eligible for reinstatement.  You can determine this by having an informal hearing at the DMV before the local informal hearing officer (an informal hearing is NOT required to obtain reinstatement—only recommended).  The informal hearing officer will review your driving record and provide you with a checklist of documentation you will need to obtain.

               After your informal hearing, it is recommended that you consult an attorney to review your record and determine the proper way to proceed.  At Hall & Rustom, L.L.C., we will prepare you from that point and determine: 1) what paperwork you will be required to present at the hearing; 2) whether the paperwork meets the requirements of the hearing officer; 3) what testimony is to be presented at the hearing; 4) how that testimony will be presented; and 5) what to expect from the hearing officer and assistant attorney general when questioning you during the hearing.

   As a rule in Illinois, you must be able to present evidence of 1 (one) year of sobriety prior to your hearing.  If you are not prepared to present this evidence to the hearing officer, we can request the hearing officer deviate from that rule from 1 year to 6 months instead.  However, the hearing officers RARELY deviate from that requirement.  Therefore, it is advised that the petitioner refrain from drinking alcohol/using drugs for at least 1 year prior to the hearing.

What paperwork will I need to present at the formal hearing?

               The general documentation requirements by the Secretary of State vary depending on the DUI risk classification.  After you are arrested and prior to sentencing, you will be required to obtain an alcohol evaluation.  This evaluation is given to you by a certified alcohol evaluator licensed by the Division of Alcoholism and Substance Abuse.  This evaluator will determine what risk you are.  The risks are:  Minimal, Moderate, Significant, and High Risk (dependant or non-dependent).  Each risk provides certain criteria you must meet when fulfilling the requirements of your court supervision, conditional discharge, and/or probation.  Prior to your hearing, you must obtain an updated alcohol evaluation documenting all DUI offenses and alcohol history.  Below are the different requirements set forth by the Secretary of State for each risk:

Minimal Risk

·        If your Uniform Report evaluation or the last updated evaluation is more than six months old at the time of your hearing, you also must submit a current updated evaluation. An updated evaluation must be completed by the agency that completed your Uniform Report evaluation.

·        Must document successful completion of a DUI Risk Education Course.

Moderate Risk

·        If your Uniform Report evaluation or the last updated evaluation is more than six months old at the time of your hearing, you also must submit a current updated evaluation.

·        An updated evaluation must be completed by the agency that completed your Uniform Report evaluation or by the agency that completed your early intervention program.

·        Must document successful completion of a DUI Risk Education Course.

·        Must document successful completion of an Early Intervention Program on the providing agency’s letterhead indicating the number of hours completed, dates of involvement, a summary of what was explored/addressed and the outcome of your involvement.

·        Must document successful completion of any substance abuse treatment recommended by a licensed evaluator or treatment provider.

Significant Risk

·        If your Uniform Report evaluation or the last updated evaluation is more than six months old at the time of your hearing, you must submit a current updated evaluation.

·        An updated evaluation must be completed by the agency that completed Your Uniform Report evaluation or by the agency that completed your treatment.

·        Must document successful completion of a DUI Risk Education Course.

·        Must document successful completion of any substance abuse treatment recommended by a licensed evaluator or treatment provider, including:

•       Copy of the Individualized Treatment Plan.

•       Copy of Discharge Summary.

•       Copy of Continuing Care Plan.

•       Original Continuing Care Status Report.

·        If no treatment provided, must submit a treatment waiver.

High Risk — Dependent

·        If your Uniform Report evaluation or the last updated evaluation is more than six months old at the time of your hearing, you also must submit a current updated evaluation.

·        An updated evaluation must be completed by the agency that completed your Uniform Report evaluation or by the agency that completed your treatment.

·        Must document on an original Secretary of State treatment verification form, successful completion of any substance abuse treatment recommended by a licensed evaluator or treatment provider, including:

o   Copy of Individualized Treatment Plan.

o   Copy of Discharge Summary.

o   Copy of Continuing Care Plan.

o   Original Continuing Care Status Report.

·        If no treatment provided, must submit a treatment waiver.

·        Must document the establishment of a support/recovery program (Alcoholics Anonymous, church, etc.) and abstinence, by submitting: (In all of the following situations witness testimony is acceptable instead of letters.)

·        At least three original letters, signed and dated within 45 days prior to your hearing, from fellow members/participants, verifying your active involvement in your support program.

·        If you have a support/recovery program sponsor, an original letter from your sponsor documenting your active involvement in your support program, signed and dated within 45 days prior to your hearing.

·        At least three original letters, signed and dated within 45 days prior to your hearing, from individuals (friends, family, etc.) who can verify your abstinence from alcohol/drugs for at least 12 months if seeking reinstatement, but no less than six months for a Restricted Driving Permit.

High Risk — Non-Dependent

·        If your Uniform Report evaluation or the last updated evaluation is more than six months old at the time of your hearing, you also must submit a current updated evaluation. An updated evaluation must be completed by the agency that completed your Uniform Report evaluation or by the agency that completed your treatment.

·        Must document on an original Secretary of State treatment verification form, successful completion of any substance abuse treatment recommended by a licensed evaluator or treatment provider, including:

o   Copy of Individualized Treatment Plan.

o   Copy of Discharge Summary.

o   Copy of Continuing Care Plan.

o   Original Continuing Care Status Report.

·        If no treatment provided, must submit a treatment waiver.

·        Must submit at least three original letters, signed and dated within 45 days prior to the hearing, from individuals (friends, family,etc.) who can verify either your alcohol/drug use pattern or abstinence for at least the last 12 months if seeking reinstatement, but no less than six months for a Restricted Driving Permit. (Witness testimony is acceptable instead of letters.)

·        Must submit an additional report from the treatment provider explaining why dependency was ruled out and the cause of your behavior that resulted in three or more DUI dispositions. This requirement cannot be waived.

What is DUI risk classification and why is it important?

Prior to your sentencing for DUI, the court will require you to obtain the alcohol evaluation (as discussed above.  In that evaluation, the evaluator will assess your classification under the following categories:

•       Minimal Risk

•       Moderate Risk

•       Significant Risk

•       High Risk (Dependant or Non-Dependant)

Since you are applying for reinstatement, you are likely convicted of DUI.  Therefore, your risk will typically be considered in the Significant or High Risk.  Prior to applying for reinstatement, you must have all your alcohol/drug treatment completed and sufficiently documented as successfully completed.  Your classification is important because it lays the groundwork for how much alcohol/drug treatment you will have to complete.  If you are high risk dependant, this usually requires substantial treatment and extensive documentation that you will be required to present to the hearing officer.  Your attorney will review this documentation and may recommend additional treatment or for you to at least go back to your evaluator for an updated evaluation.

How long will it take to be reinstated?

               Depends.  There are many factors that determine how quickly you will be reinstated.  As common sense dictates, if you take your treatment seriously, completing everything required, if you have an adequate understanding of your drinking problem, if you can successfully prove to the hearing officer that you are able to control that problem , AND you can demonstrate you are no longer a danger to Illinois drivers, then the process to obtain some driving relief is 3-6 months from the date you applied for reinstatement.  To achieve full reinstatement of your privileges, the process will likely take up to 2 (two) years from the date you apply for reinstatement.  Note:  If you have more than one hearing, it will obviously take longer to obtain reinstatement.

What will happen at the formal hearing?

               The formal hearings take place at one of four different locations throughout the State of Illinois.  These locations are:

•       Chicago

•       Joliet

•       Springfield

•       Mount Vernon

You will meet at the location at your scheduled time and your attorney will provide the assistant Attorney General with the required paperwork.  You will then wait to be called for the hearing.  Once called, you and your attorney will be taken into a room where the hearing officer and assistant Attorney General are waiting.  While the order of testimony may differ, the common order is:

·        The hearing officer will commence the hearing and record.

·        The assistant Attorney General will submit your driving record into evidence along with the documentation you presented.

·        After submission, your attorney will question you.

·        The assistant Attorney General will then question you.

·        The hearing officer will typically allow for any other comments prior to closing the record.

·        The hearing will end and the hearing officer will typically notify you of their decision within 90 days.

While this process may differ depending on the location, the structure is generally the same.               

A typical hearing will last between 60 and 90 minutes, depending on the amount of question.

Will I need to obtain Financial Responsibility (SR-22) Insurance?

               
               Presently, a DUI conviction subjects you to filing Financial Responsibility Insurance (SR22) for three years.  Financial Responsibility Insurance (SR-22), is commonly referred to as “high-risk” insurance.  This requires your insurance company to file appropriate documentation with the Secretary of State.  Your insurance company is usually the only means allowed to submit this documentation.  They submit it in one of two ways:  1) Electronically; and 2) By mailing.  This method depends on the insurance company.  Consult an attorney or your insurance agent to determine how this documenation can be submitted.

If the hearing officer grants me driving relief, will I have full driving privileges restored automatically?

               The common answer is no.  If the hearing officer grants your petition for reinstatement, they require a minimum of 9 (nine) months driving on a probationary permit.  This permit will require you to install a Breath Alcohol Ignition Interlock Device (BAIID) and only allow you to drive for work, alcohol/drug treatment, or for educational (school) purposes.  Note:  This permit will not allow for you to drive for family purposes, such as picking your child up from school or dropping them off. 

                The Secretary of State’s office monitors and reads the BAIID throughout the duration of the permit.The BAIID will alert the Secretary of State’s office if the driver attempts any incidents of driving under the influence or tampers with the device.

I pled guilty to my second DUI.  Do I lose my license for 5 years?

               It depends on whether the DUI was your first or second conviction.  Typically, you receive court supervision on your first DUI.  Since court supervision does not assign points against your driver’s license and it’s not considered a conviction, if you are arrested for DUI a second time and receive a conviction, it will be considered your first conviction and you will lose your driving privileges for a minimum of one year.

               However, if you did not receive court supervision on your first DUI and you are subsequently charged and convicted of your second DUI (it’s it is your second within the last 20 years), then the subsequent DUI is considered your second conviction and you will be revoked for a minimum of five years.

Revocation for Non-DUI Related Convictions

While DUI is the most common revocation causing offense, your driving privileges could still be revoked if you receive a conviction for certain crimes.  To regain your driving privileges, you will have to apply for reinstatement and have a formal hearing.  However, the law allows for reinstatement after an informal hearing under certain circumstances.  It is important you consult an attorney to see if you need a formal or informal hearing to reinstate your driving privileges. 

Offenses for which your driver’s license may be revoked for a minimum of 1 (one) year (unless otherwise noted) include, but are not limited to:

•       Aggravated DUI — Causing personal injury or death as a result of a DUI; having a prior conviction of reckless homicide or aggravated DUI involving a death and committing a DUI; receiving a third or subsequent DUI conviction; committing a DUI without a valid license, permit or vehicle insurance; or committing a DUI violation while transporting children in a school bus.

•       Aggravated Fleeing the Police — Driving away from the police when directed to stop.

•       Aggravated Reckless Driving — Driving resulting in great bodily harm, permanent disability or disfigurement to another person.

•       Auto Theft — Stealing a motor vehicle or motor vehicle parts.

•       Drag Racing or Street Racing — Illegally racing with another vehicle.

•       Fatality Crash — A crash that results in the death of another person.

•       Felony Offense — A vehicle was used while committing a serious crime.

•       Fraudulent ID — Making or possessing the equipment to make, sell, use, attempt to use or assist another in using an unauthorized, non-governmental issued ID or driver’s license.

•       Gang-related Activity — A gang-related offense involving the use of a vehicle or an Illinois driver’s license.

•       Leaving the Scene— Leaving the scene of a crash that killed or injured someone.

•       Perjury — Giving false information to the Secretary of State.

•       Reckless Conduct — Reckless behavior involving a vehicle and resulting in injury or danger to another person.

•       Reckless Driving — Conviction of three reckless driving offenses in 12 months or driving that results in great bodily harm, permanent disability or disfigurement to another person.

•       Reckless Homicide— Driving recklessly, resulting in the death of another person.

The Secretary of State’s office has the authority to revoke the driver’s license of a repeat traffic offender. During the course of any revocation, your vehicle registration may be suspended. Notice is given accordingly.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

LEGAL DISCLAIMER: 

The information above is not to be used as legal advice and it does not create an attorney/client relationship between you (the reader) and Hall, Rustom & Fritz LLC.  If you already are a client of Hall, Rustom & Fritz LLC, please do NOT submit any confidential information through this forum.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Article Author: Jeffrey R. Hall

Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.

Jeffrey R. Hall

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