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ISBA Illinois Law Now - February 2012

Staff Report  /  February 16, 2012  /  Views: 38  /   No Comments

-What legal remedies exist to allow school administrators to punish students for cyber-bullying?

Under a new Illinois law, students who make online threats against other students face suspension or expulsion. The law lets school administrators discipline students who make any online threat that could reasonably be interpreted as threatening to the safety and security of another student or staff member.

-If parents are away and therefore unaware when their underage kids are drinking at home, can they be penalized?

If the parents were truly unaware, then the kids will be held responsible, according to state law. But, once the parents become aware of the situation, they are expected to take immediate action. Illinois law requires parents to be in the home with their children if drinking occurs - whether it is for religious, cultural or personal reasons.

-Can someone who has been convicted of domestic battery legally acquire a firearm?

Under a new Illinois law, anyone convicted of domestic battery is no longer eligible for a firearm owner's identification (FOID) card, which is needed to legally possess a gun in Illinois. Also, those with orders of protection against them must give up their FOID card as long as the order is in effect.

-I'm thinking of buying a high-tech radio-transmitting bracelet for a close family member who has early-stage dementia. What do I need to know?

A new state law lets police officers activate high-tech bracelets worn by a child or adult with disabilities that can help them locate a missing child or adult. A family member would first have to file a missing-persons report with police, who can then activate the bracelet. That, in turn, dials 911, which will provide the person's location. It was previously illegal for the tracking devices to call 911.

-What should I know about buying on credit?

Buying on credit has become so commonplace that it is often taken for granted without fully understanding the legal consequences. Never accept the invitation to "buy now and pay later" without being fully informed of what is involved.

For one thing, the buyer will pay more money, since interest charges and other costs are added to the cash price of the merchandise. Usually, they will be asked to sign a contract of sale, known in legal terms as a security agreement. Among other things, a security agreement will set forth when and how the seller or finance company can repossess the merchandise, should payments fail to be made.

-When should I consider signing a Power of Attorney for Healthcare?

Now, while well, is the time to decide what kind of healthcare one will want if ever he/she is unable to make those decisions. This can be completed by signing a Power of Attorney for Healthcare and/or a Living Will. In addition, a Declaration for Mental Health Treatment for specific forms of mental healthcare may be executed. An attorney can explain the differences, and help fill out the paperwork.

-What are some of the general rules that apply to adoption proceedings?

A single or divorced person, or a couple (unmarried or same-sex) can adopt a child. However, if the adopting persons are married, both the husband and wife must join in the petition unless they have been separated for more than a year. A child who is over the age of 14 years must agree to being adopted.

Would the sale of my home be subject to capital gains tax?

If a homeowner has owned and occupied a principal residence for more than two years, this tax may not have to be paid. An experienced attorney can help the owner understand tax problems that may occur when a home is sold. He/she also will make sure that, before signing, the seller understands all legal agreements related to the sale of the home.

-I am buried in personal debt. What is the best way out?

Excessive debt can be overwhelming. No matter how one arrived at the current situation, a lawyer can help determine the best legal approach to the situation. One may also want to consider credit counseling or debt consolidation.

-What are the grounds for a no-fault divorce?

In a case based on irreconcilable differences, which some people call no-fault, the party must show there is a breakdown in the marriage, that they have been living separately for two years (and the parties sign a waiver of the requirement, in which case the requirement is only six months), and that all efforts to reconcile have failed and further effort is futile

Regardless of grounds, it is important to know that money and property is divided or awarded on an "equitable basis," regardless of fault. That means even if one spouse actually did something that caused the divorce, they are not "punished" in the financial judgment.

-I'm thinking about using small claims court as a way to settle a dispute with a local business. What should I know?

Small claims court may be used only for certain types of cases, such as lawsuits over breach of contract, property damage or personal injury, evictions, and garnishments to enforce judgments from funds owed to debtors.

The maximum judgment allowed in small claims court is $10,000 plus costs; therefore, the claim may not exceed $10,000.

-What are my rights, should I be arrested?

If arrested or charged with a crime, do not panic. Remember one has the legal right to be treated fairly and with respect by the police.

Expect to be searched for weapons, taken to a police station, and advised of one's rights under the U.S. Constitution. The person arrested does not need to answer questions from the police and can request to have a lawyer present. If he/she cannot afford a lawyer, the court will appoint one. If a lawyer is requested, the police are not supposed to question the person further until the lawyer arrives.

For more information about Illinois law, visit www.illinoislawyerfinder.com. If you have a legal question, send it to illinoislawcolumn@isba.org.

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