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Supreme Court Will Not Review CCW Law

The justices will not review a Seventh Circuit decision that upheld key parts of the Carrying a Concealed Weapon law.

In 2012, Illinois became the last state in the Union to enact a CCW law, and gun owners almost immediately attacked the provision in court. Initially, some would-be licensees complained that the state denied their applications with practically no explanation. In response, the state police, and later state lawmakers, changed the rules to require more detailed explanations in denial cases. In fact, one of the gun owners who sued withdrew his lawsuit, and after he addressed the deficiencies noted in the denial, officials later approved his application. A second lawsuit insisted that the new procedure, while an improvement, still violated due process. However, the Seventh Circuit did not agree, and apparently neither did the Supreme Court.

Despite the decisions, gun owners may be contemplating another lawsuit based on extended processing times.

CCW Requirements

Many jurisdictions are “may issue” states, which basically means that law enforcement has a veto power in licensure matters. However, Illinois is a “shall issue” state, and applicants who meet the following qualifications can carry some kinds of firearms in Illinois:

  • 21 or over,
  • Valid Firearm Owner Identification Card,
  • No convictions for any violent crimes,
  • Maximum one conviction for DUI or other drug/alcohol offenses,
  • No history of alcohol/drug abuse
  • Completed training class,
  • Full written application, and
  • The licensee “does not pose a danger to himself, herself, or others, or a threat to public safety.”

That last provision is the only subjective requirement, and under the law, the Concealed Carry Licensing Review Board operates under few constraints.

It conducts business behind closed doors and is not subject to the Open Meetings Act or the Freedom of Information Act. In many cases, and many potential licensees have complained about this provision, the seven members have a nearly unlimited amount of time to consider applications. Finally, if a majority of CCLRB members determine by a preponderance of the evidence (more likely than not) “that the applicant poses a danger to himself or herself or others, or is a threat to public safety, then the CCLRB shall affirm the objection of the law enforcement agency or the Department and shall notify the Department that the applicant is ineligible for a license.”

The CCLRB may apparently consider any factors it deems relevant in making this decision because there are no factors listed.

Fighting Denials

If the CCLRB issues a subjective denial, the applicant may normally appeal to the Director of the Illinois State Police. Successful appeals are usually based on a lack of evidence or an abuse of discretion because a law enforcement body is unlikely to examine the same evidence that the CCLRB reviewed and reach a different conclusion. Some would-be licensees can appeal directly to the circuit court.

Basically the same process is available to appeal FOID denials. Strict time deadlines apply in these types of cases.

Even though these denials are subjective, there must be actual evidence in the record, such as documented evidence of ongoing serious mental health issues or a criminal record somewhat outside the lookback period, to support the CCLRB’s conclusion.

Contact Assertive Attorneys

The way the law is written, filing a CCW application could only be the first step in a long process. For a confidential consultation with an aggressive criminal defense attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Tim Trad)

Classifying and Dividing Marital Property in Illinois

The rule for marital property division in Illinois seems so straightforward: Property acquired before the marriage or by gift is non-marital, and according to the property presumption, everything else is marital property.

But in long marriages, the black-and-white lines are very gray because it is not always easy to trace complex and ongoing property transactions to their original sources. Furthermore, as time goes by, the original records usually disappear, making a difficult problem even more challenging.

Classification

Almost all non-cash property requires minimal upkeep and maintenance, and contributions well above that are the norm. Assume Wife received a rental house as part of the property settlement in a prior divorce. Over time, she and Husband use some of the proceeds from their jointly-owned business to make repairs and improvements on the house. By the time they divorce, it is occupied and fetching rents at slightly above market level.

The rental house is a classic example of commingled property; the same thing often applies to investment accounts started before the marriage and augmented with marital funds, like job earnings. After the tracing process (going back through old records to determine the source of the funds), a judge can make one of several conclusions:

  • The house itself is non-marital property and the improvements were essentially minimal maintenance, such as new paint and carpet, so Husband is not entitled to reimbursement. Therefore, both the house and the rent proceeds are Wife’s nonmarital property because the increase from separate property is also separate property.
  • The house is non-marital property and the improvements were more than de minimis (perhaps a major addition or partial renovation) that added substantial value to the house. In this case, Husband would be entitled to reimbursement for his half of the community contributions, so if the couple spent $20,000 on improvements, Wife must pay Husband $10,000. Nevertheless, since the house is still non-marital property, so is the income that it generates.
  • If the house was in such bad shape that it was uninhabitable and the couple made extensive repairs and/or renovations, like foundation repair, the judge may rule that the house has transmuted from nonmarital to marital property. Wife does not owe Husband any reimbursement, but the parties will split the income from the marital property.

To get to this point, lawyers often work with specialized accountants to accurately trace income and expenses.

Division

Illinois is an equitable division state, and “equitable” usually is not the same thing as “equal.” Basically, the judge must apportion marital property so that the divorce is not an unreasonable financial burden for either party. So, in the third bullet above, the parties may not necessarily split the house and the rents 50-50. Instead, the judge will divide all marital property based on:

  • Contributions to the Marriage: The law recognizes and respects both economic contributions from “breadwinner” spouses and noneconomic contributions from “caregiver” spouses. These roles usually overlap.
  • Standard of Living During the Marriage: Divorce usually reduces the standard of living for both parties, but this reduction should be as equal as possible.
  • Agreements: Illinois family law judges will normally enforce any property agreement between the spouses that was voluntary and not unconscionable.
  • Duration of the Marriage: This factor effectively multiples the “caregiver” factor while minimizing the “gold-digger” factor in a few short-term marriages.

Other key factors include an award of non-marital property, the amount of spousal support paid or received, and custody of minor children.

Contact Aggressive Attorneys

High-asset marriages usually involve complex property division questions. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Josh Felise)

Are Premarital Agreements Really Divorce Insurance Policies?

Even though no one expects or hopes to die prematurely, responsible individuals have life insurance policies to protect their dependents if the unexpected becomes a reality. Similarly, no one expects or hopes for their marriage to end in divorces. However, it is important to protect dependent children and be prepared for the unexpected, and that is exactly what a premarital agreement does.

Spousal agreements are especially important in high-asset marriages. Money is one of the primary sources of marital friction, and since premarital agreements allow prospective spouses to make financial decisions in advance, a key element in marital conflict never has a chance to develop. Similarly, premarital agreements settle inheritance and succession questions in advance, avoiding later discord and probate litigation.

Making Premarital Agreements

Illinois and almost all other states use the Uniform Premarital and Marital Agreements Act to regulate these contracts. The UPMAA capitalizes on the preference in family law toward voluntary agreements, helps ensure relatively consistent results in different states, and allows couples in Illinois to benefit from the experiences of couples in other states.

In addition to inheritance and alimony, premarital agreements can classify property as either marital or nonmarital, establish debt obligations, possibly contain choice of law provisions, and establish payment rules for future obligations, such as attorneys’ fees. Child custody, child support, and other areas against public policy are off limits in these agreements.

Overturning Premarital Agreements

Although there is a strong legal presumption in favor of these pacts, no agreement is set in stone. Two instances from other UPMAA states illustrate successful (and unsuccessful) challenges to premarital agreements.

These contracts must be voluntary. Traditionally, most courts require almost a physical coercion to overturn property agreements because they are involuntary. But in a recent Minnesota case, a groom worked with a lawyer for several months drafting and editing a property agreement and did not inform his future bride until three days before the couple was to wed in the Cayman Islands. She later testified that she felt pressured to sign the unbalanced agreement because all her friends and family had already booked travel and accommodation arrangements.

The district judge ruled in favor of the wife. A court of appeals agreed, ruling that despite the absence of physical coercion, declaring that “the district court did not err in
determining that the antenuptial agreement is invalid and did not abuse its discretion in
awarding marital property, temporary rehabilitative spousal maintenance, and attorney fees
to wife.”

Unconscionable agreements are likewise void, but this term has a specific meaning in this context. When Frank and Jamie McCourt, the erstwhile owners of the Los Angeles Dodgers, divorced in 2011, the team was in bankruptcy and Ms.McCourt gave up her half of the franchise in exchange for roughly $200 million in cash and property. A year later, Mr. McCourt sold the team to the Guggenheim Group for almost $2.2 billion, and Ms. McCourt tried to overturn the property agreement because from her perspective, it resulted in a $900 million shortfall.

An appeals court ruled that the agreement was not unconscionable when it was made. “Jamie simply chose the security of a guaranteed $131 million payment, plus more than $50 million in real and personal property, over the uncertainty and risk presented by the valuation and sale of the Dodger assets,” the court explained.

Rely on Experienced Attorneys

A premarital agreements starts a high-asset marriage on the right foot. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson. After hours appointments are available.

(image courtesy of Drew Coffman)