Department of Healthcare and Family Services Expands Medicaid Coverage for Podiatric Services

On August 31, 2012, the Illinois Department of Healthcare and Family Services (HFS) issued a notice to participating Podiatrists regarding coverage for Medicaid patients over 21. Previously, on July 23, 2012, HFS issued a notice that, irresponsibly in this author’s opinion, drastically reduced the coverage of podiatric services for those over the age of 21 to “services provided to participants with diabetes for a diabetes-related condition of the foot/ankle.”

The July 23, 2012 notice appeared to limit services of podiatric services to patients that suffered from diabetes. However, there was an additional limitation included in the notice that was problematic. Namely, HFS clearly stated that payment would be provided solely for “diabetes-related condition(s).” What exactly qualified as a “diabetes-related condition” caused mass confusion among podiatrists trying to treat patients with diabetes.

Fortunately, HFS quickly realized this and issued a new notice on August 31, 2012 stating: “Effective with dates of service July 1, 2012 and after, coverage of podiatric services provided to participants 21 years of age and older will be limited to services provided to participants with diabetes. Covered routine foot care services will be payable once every 61 days.” Pursuant to the notice, the July 23, 2012 notice was superseded. Since both notices state the effective date of service is July 1, 2012, it is also safe to assume that any services provided that would not be covered under the July 23, 2012 policy, but that would be covered under the August 31, 2012 policy, are going to be covered by Medicaid.

Similar to the prior notice, the August 31, 2012 requires participants to include a primary diagnosis code of diabetes when billing for services (ICD-9-CM-250.xx range). HFS also requests that the secondary code reflect the condition being treated (ie bunions, hammertoes, diabetic foot ulcers, etc).

As an aside, both notices clearly indicate that Medicaid coverage for those under the age of 21 did not change.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your health law problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Do You Qualify For U.S. Citizenship and Immigration Services’ Deferred Action for Childhood Arrivals?

On June 15, 2012 the Secretary of Homeland Security, Janet Napolitano announced that certain young people who were brought to the United States as young children can obtain relief from removal from the country or removal proceedings. The United States Citizenship and Immigration Services has posted that childhood arrivals may request deferred action if they:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching their 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

In addition, individuals eligible for deferred action will be eligible to apply for work authorization.

Unfortunately, deferred action does not grant you citizenship. In fact, it does not give you any legal status within the United States. As President Obama has stated numerous times, deferred action is merely recognizing that the above individuals do not pose a threat to the American people and, as such, will not be deported. Even though this is a step in the right direction towards giving the “Dreamers” citizenship, it is vital that you DO NOT apply for deferred action until you speak with an attorney about your situation. Even though you may be eligible for deferred action, it may NOT BE IN YOUR BEST INTEREST to submit an application.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Anatomy of a Workers Compensation Claim: Notifying Your Employer and Hiring an Attorney Before Your Time Runs Out

This article is designed to explain the basics of a typical Workers’ Compensation claim to help injured workers protect their rights.

Workers Compensation in Illinois is designed to promote the general welfare by providing compensation for accidental injuries, or death suffered in the course of employment to most workers with job-related injuries. The benefits are paid regardless of fault. The Supreme Court of Illinois put it best when it stated “the primary purpose of the Workmen’s Compensation Act is to provide employees a prompt, sure, and definite compensation, together with a quick and efficient remedy for injuries or death suffered by such employees in the course of their employment…and to require the cost of such injuries to be borne by the industry itself and not by its individual members.” O’Brien v. Rautenbush, 10 Ill.2d 167 (1956).

Further, this Act obliterates the general requirement for an injured party to prove the other party (employer) was at-fault for their injury. In this way, the Act provides financial protections for injured workers by providing benefits to those workers without forcing them to show negligence on the part of the employer. It also frees injured workers from being punished for making a mistake by prohibiting a reduction in those benefits by contributory negligence. In this way, an injured or, in some cases, a sick worker can receive a portion of their wages, medical benefits, and expenses.

The Act also is designed to give you the right to a “quick and efficient remedy” when you are not receiving the benefits you deserve. In order to accomplish this, the legislature has established the Illinois Workers’ Compensation Commission. For a typical Workers’ Compensation case, an arbitrator is assigned to decide cases. For all intents and purposes, most Workers’ Compensation attorney’s view this individual as the “judge” for your case. As is discussed later, if a worker is not pleased with the decision of the arbitrator he, or she, may appeal the decision by following the Illinois Workers’ Compensation Commission’s rules and, eventually, end up in Court, but that is extremely uncommon.

Even though the Act does provide for benefits, the employers, and their insurance companies, have no duty to file a claim with the Workers Compensation Illinois Workers’ Compensation Commission. This is true regardless of whether they began paying you benefits for lost time from work, medical bills, and expenses immediately following your injury or illness. In fact, the law makes it clear that it is your job to protect your own rights in two very important ways.

First, it is your duty to notify your employer that you have been injured. In this regard, an employee must notify an employer that they have suffered an accidental injury arising from the employment. This notice period is very quick and must generally be done within 45 days of the injury. Fortunately, notice may be accomplished orally (by simply telling the employer you have been injured). Even though notice can be accomplished orally, to avoid problems I always recommend that an injured worker give the employer a written notice with the following:

1. The date and location of the accident;
2. A brief description of the accident, injury or disease; and
3. The employee’s name, address, and telephone number; and
4. Be sure to give notice to a manager and not a co-worker.
a. I also recommend sending notice to Human Resources, the Registered Agent, and the    President of the Company.

Second, you must file a claim with the Illinois Workers’ Compensation Commission. Failure to file your claim can have drastic and irreversible damage on your case and rights! In this regard, you must file a claim within the time limits set by the Act itself or YOU WILL LOSE ALL OF YOUR RIGHTS TO COMPENSATION. Although the exact time limit that applies varies based on your particular injury, illness, and facts, you should act quickly. As such, I highly recommend that you contact our office so that we can discuss your case.

After you have made the decision to discuss your case with an attorney it is time for your Initial Meeting With Your Attorney and Preparation for Filing Day.

If you, or a loved one, has been injured at work, then you need information about your rights. At Shunneson Law Office, I am devoted to demanding an insurance company cover your injuries following accidents. Call (847) 693-9120 for more information or contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday – Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net

§212(a) Immigration Inadmissibility Grounds and Waivers

The various immigration inadmissibility grounds found under the Immigration & Nationality Act (INA), Section 212 can bar foreign nationals, or aliens, who are visa applicants that seek entry to the United States. Please note that, pursuant to current law, anyone who is in the country, but was not inspected at entry, will also have to prove that they are not inadmissible in removal proceedings. Below are the various grounds of inadmissibility for potential immigrants. I have also included a reference to the section that discusses waivers, if available. There is also a provision for “exceptions” to inadmissibility. These sections of the INA are similar to waivers and can overlap, but also provide a basis for an argument that a waiver is not needed because, in these circumstances, the “ground” for inadmissibility is “excepted” and, therefore, there is no inadmissibility issue. Be careful using exceptions as, very often, you must make sure the law would otherwise apply and you may end up doing a lot of work for nothing. While I have attempted to provide a complete list, please be advised that you should read each of these sections carefully to fully understand the grounds, waivers, exceptions. For example, although 212(d)(3) is generally available as a waiver for non-immigrants, the likelihood of it being available in reality could be drastically limited based upon the ground for inadmissibility and your particular circumstances. There is no substitute for speaking with a knowledgeable attorney to help analyze your case.

As you can clearly see, there are many related categories and the ten most common are provided below. There are also some miscellaneous grounds for inadmissibility relating to students, etc. that are not discussed. 

INA §212(a) Inadmissibility Section Ground Waiver for Immigrant Visas Waiver for Non-Immigrant Visas Exception
212(a)(1) Communicable Diseases 212(g) 212(g);212(d)(3) NA
212(a)(1)(A)(ii) Lacking Vaccinations 212(g) 212(g);212(d)(3) 212(a)(1)(C)
212(a)(1)(A)(iii) Physical or Mental Disorder 212(g) 212(g);212(d)(3) NA
212(a)(1)(A)(iv) Drug Abuser/Drug Addict NA 212(d)(3) NA
212(a)(2)(A)(i)(I) Crimes Involving Moral Turpitude 212(h) 212(h);212(d)(3) 212(a)(2)(A)(ii)
212(a)(2)(A)(i)(II) Drug Crimes 212(h) – Marijuana 212(h);212(d)(3) NA
212(a)(2)(B) Multiple Criminal Convictions 212(h) 212(d)(3) NA
212(a)(2)(C) Controlled Substance Traffickers and Their Families NA 212(d)(3) NA
212(a)(2)(D) Prostitution 212(h) 212(d)(3)
212(a)(2)(E) Asserted Immunity from Prosecution 212(h) 212(d)(3)
212(a)(2)(G) Foreign Government Officials Committing Severe Violent Crimes NA 212(d)(3)
212(a)(2)(H) Significant Traffickers and Their Families NA 212(d)(3) 212(a)(2)(H)(iii)
212(a)(2)(I) Money Launderer NA 212(d)(3)
212(a)(3)(A)(i) Espionage, Sabotage, Prohibited Export Law Violators NA NA NA
212(a)(3)(A)(ii) Unlawful Activity Related to Security NA NA NA
212(a)(3)(A)(iii) Overthrow of the U.S.Government NA NA NA
212(a)(3)(B) Terrorist Activities 212(d)(3)(B) 212(d)(3) 212(a)(3)(B)(ii)
212(a)(3)(C) Adverse Foreign Policy Consequences NA NA 212(a)(3)(C)(ii) and (iii)
212(a)(3)(D) Membership in Totalitarian Party 212(a)(3)(D)(ii) and (iii) 212(d)(3) 212 (a)(3)(D)(ii) and (iii)
212(a)(3)(E)(i) Nazi Party Member NA NA NA
212(a)(3)(E)(ii) Genocide NA NA NA
212(a)(4) Public Charge 213 and 221(g) 212(d)(3) and 221(g) See 212(S)
212(a)(5)(A) Labor Certification 212(k)/NA 212(d)(3)/N/A 212(a)(5)(A)(i)
212(a)(5)(B) Unqualified Physicians NA NA 212(a)(5)(B)
212(a)(5)(C) Uncertified Health Care Workers 212(r) 212(d)(3) 212(a)(5)(C)
212(a)(6)(A) Aliens Present without Admission or Parole (EWI) – Note – ONLY APPLIES WHILE IN THEUSA NA NA VAWA (Note – VAWA Applies in Many, Many Cases and is Referenced As an Aside Due to Its Importance for These Cases
212(a)(6)(B) Failure to Attend Removal Proceedings NA 212(d)(3) NA
212(a)(6)(C) Misrepresentation 212(a)(i); 237(a)(1)(H) 212(d)(3) NA
212(a)(6)(C)(ii) False Claims to US Citizenship – Watch Out for I-9s NA 212(d)(3) 212(a)(6)(C)(ii)
212(a)(6)(D) Stowaways 208: Asylum NA NA
212(a)(6)(E) Smugglers 212(d)(11) 212(d)(11) 212(a)(6)(E)(ii)
212(a)(6)(F) Civil Penalty under INA 247C 212(d)(12) 212(d)(3) NA
212(a)(6)(G) Student Visa Abusers NA 212(d)(3) NA
212(a)(7)(A) Documentation Requirement for Immigrants 211 NA
212(a)(7)(B) Documentation Requirements for Nonimmigrants NA 212(d)(4)
212(a)(8)(A) Ineligible for citizenship under INA 314 or 315 NA NA NA
212(a)(8)(B) Draft Evaders Pardons 212(d)(3) 212(a)(8)(B)
(a)(9)(A)(i) and (ii) Ordered Removed Upon Arrival NA 212(d)(3) 212(a)(9)(A)(iii)
212(a)(9)(B) Unlawful Presence See Exceptions – Waivers are Available 212(d)(3) 212(a)(9)(B)(iii), (iv) and (v) (see v for waiver)
212(a)(9)(C) Unlawful Presence After Prior Immigration Violation See Exception 212(d)(3) (a)(9)(C)(ii) and (iii)
212(a)(10)(A) Immigrant Polygamists NA NA NA
212(a)(10)(B) Guardian Accompanying Inadmissible Helpless Child NA NA NA
212(a)(10)(C) International Child Abduction Exceptions 212(d)(3) 212(a)(10)(c)(iii)

Anyone reading this is also well advised to review the basis for Asylum (INA §208), Cancellation of Removal (INA §240), and Adjustment of Status (INA §245). Just because you are inadmissible does not mean there is no relief available to you.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

It’s About Time: Temporary Protected Status Designated for Nationals of the Syrian Arab Republic

On March 23, 2012, the Secretary of Homeland Security announced its intent to designate Syrian nationals for Temporary Protected Status for eighteen months. The Temporary Protected Status designation for Syria became effective May 22, 2012 and remains in effect until September 30, 2013. This designation means that the United States will not deport eligible Syrian nationals residing in the United states since this country is temporarily unsafe or overly dangerous. The reason for this designation is hardly surprising. The political turmoil and military actions in Syria have made it extremely dangerous for virtually everyone that is living there and it would be against human dignity to force someone to return to this climate.

At this point, some of you may be asking what Temporary Protected Status is. Temporary Protected Status is a designation authorized by § 244 of the Immigration and Nationality Act. Pursuant to this statute, the government “protects” nationals from countries unsafe due to overly dangerous conditions such as armed conflict, severe natural disasters, etc. So long as an alien meets the requirements for Temporary Protected Status, the alien may be granted the same and “Shall not [be] removed” from the United States during the period this status is in effect. They are also granted employment authorizations and allowed work. It is important to note that this is different entirely from Asylum because Temporary Protected Status is country based and ends when the situation improves or the U.S. government otherwise decides to terminate TPS status.

As discussed, to qualify for Temporary Protected Status, a foreign national must meet the statutes’ requirements.

First, The alien must have been continuously physically present and resided in the United States since the effective date of the designation. In the case of Syria, USCIS has stated this means you must demonstrate you have been continually residing and been continually physically present in the United States since March 29, 2012

Second, you must be generally admissible as an immigrant. Even if you are not, you are likely eligible for a waiver. For example, if you have been in the country illegally for a prolonged length of time, then you are barred pursuant to INA §212(a)(9). However, a waiver is available for Temporary Protected Status applicants for humanitarian purposes, to assure family unity or when it would be in the public interest to grant the waiver (§§40.9.2.c.1.D.). However, you are most likely not eligible for a waiver if you have a criminal record or pose a serious threat to the U.S.A. The U.S. government has stated all applicants from Syria will undergo rigorous background checks.

Fourth, and what is most important for you to know right now, is that you have limited time to apply for this visa. Pursuant to the law, you must register during the 180-day registration period. This period began ON MAY 21, 2012 and ends on September 25, 2012. You should also know that this process is complex and you need an experienced lawyer to help you navigate the various forms and prepare the documents. Although the forms, the I-821 and I-765, seem easy to complete, there are many, many other nuances that make them very tricky. For example, you may have some admissibility problems that MUST be addressed and, if you fail to address them, you may have your application rejected even though you might have been eligible for a waiver. This could lead to tragedy, especially for those whose lives will be in danger if they are sent to Syria because of the armed conflict.

Also, after your application is approved, you may remain in the U.S. temporarily as long as Syria remains in the designated category until your country is removed from the designated list of countries. Even then, you may be eligible to file for other forms of relief with the help of an experienced lawyer. There simply is no substitute to obtaining legal help when dealing with your immigration issue, which almost certainly more complex than you realize.

-Drake Shunneson (copyright 2012).

At Shunneson Law Office, we are dedicated to helping you with your immigration problems. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Unlike Some Bankruptcy Firms, We Will Do More Than Simply Give You a List of Documents to Provide Us and Will Help You Make Sure Your Life is Back on Track When You File a Bankruptcy

When she came to us, her life was falling apart. She was a single mother of three who had recently gone through a divorce. Her husband kept the house in the divorce and she was forced to move to a bad part of town. She rented an apartment where she hoped she could survive. Even though the apartment was in a bad part of town, she was barely scraping by. Although she had the same job for five years, she was getting paid only slightly above minimum wage. In order to survive, she was using a combination of payday loans and credit cards. Unable to keep up with her debt, she started to fall behind. Soon she found herself $80,000 in debt to the banks. Then the creditors started to call. Unable to get her to pay the outrageous debt that had accumulated as a result of the 20% interest they were charging her, they sued her in state court. Without an attorney to help her, she didn’t know what to do and hoped the banks would just leave her alone. The banks didn’t and eventually got a judgment against her. Then, at some point, she found herself in need of new glasses and unable to see very well. She saw her doctor and got a prescription for new glasses. Although the prescription was expensive for her at around $200, she knew she would be getting a tax return soon that would help her out. What she didn’t know was that the banks were hiding in the shadows ready to pounce and, when the tax return hit her bank account, they immediately filed a garnishment on her account. This was all the money she had in the world at that time. Despondent, alone, and terrified about her future she came to us in tears. Unlike some big bankruptcy firms, we were always available to listen, we were always there for her when she needed someone, and we provided her with guidance as we prepared her Chapter 7 bankruptcy petition. Utilizing our years of experience, we filed her petition, and, because the bank had not followed all of the procedures in taking her tax return, we got her the money back, which she used to pay for rent, glasses, food, and gas.

However, this was not the end of the matter for us. After we calculated her income and expenses, we determined that she was spending more per month than she was making. We knew bankruptcy wasn’t the ultimate solution for her and that, if we didn’t help her, she would soon find herself right back where she started with another $80,000 of debt. So we helped her by explaining that several of her biggest expenses were not necessary and provided her with sound financial advice that would guarantee that she wouldn’t have this problem again. We advised her on getting a roommate to help with her rent, switching to lower-cost phone carrier to cut her phone bill by 1/3, and explaining how she should cut out discretionary spending to a local gym that was charging her over $100 per month. By listening to us, she was able to cut her expenses in half and have a positive net monthly income.

This service we provided was very time consuming, but we felt that this service had to be done and didn’t charge her a dime for this advice, even though it was not part of the preparation of the bankruptcy she had hired us for. This is the advantage of utilizing a small law office such as ours. Many big bankruptcy firms will not provide any other service besides making sure you qualify for a bankruptcy and filling out the paperwork because, presumably, it would hurt their bottom line too much. However, even though making sure we can afford to stay open is a vital concern and we can’t guarantee we will be able to do this for your case, helping people is also a goal that we strive for and, in this situation, we felt it was imperative that we help our client. Her life had been hard and very few people had ever given her a helping hand. It was about time someone did and we were happy to do it.

Our office is proud to state that not a single bankruptcy petition we have filed has ever been rejected and that all debtors that we have filed for have obtained a discharge order. She was no different and the bankruptcy court granted her a discharge of her massive debts. The last time we saw her she again, she came to us in tears, but this time of sheer happiness. She knew that she was no longer alone and that there was, at least, one person who would protect her rights and that she would never have to worry about facing the future because, even if we couldn’t help her, we would be here to take her calls.

When we saw she was wearing her new glasses, we couldn’t help but cry too.

At Shunneson Law Office, I am devoted to giving you a fresh start, while protecting important property in the face of overwhelming debt. Contact us for a consultation or for a FREE INFORMATION PACKAGE to better inform you prior to talking to an attorney, or anyone else making promises about your financial future. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. The materials also mainly concern Chapter 7 bankruptcies. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos: FreeDigitalPhotos.net.

Distracted Driving Causes Almost Half a Million Car Accident Personal Injuries a Year and Could Hurt Your Personal Injury Case

Most people will admit that they have, at one point or another, texted or talked on a cell phone while driving. This is especially true for young people and many teenagers will readily tell you that texting or talking on a cell phone while driving is just what teenagers do. Most people believe that they can talk or text on a cell phone and drive safely. In addition, many believe texting is okay because it’s pretty quick, unlike a phone conversation. The fact is distracted driving kills and is a very serious safety concern. Talking or texting on a cell phone is among the most dangerous activities you can engage in on the road. In fact, talking on a cell phone while driving is equivalent to having a blood alcohol content above the legal limit of 0.8. If you were pulled over with this 0.8 blood alcohol content, you would be guilty of driving under the influence in Illinois. Of course, most people wouldn’t drive drunk, but it is interesting just how many will engage in actions that amount to drinking and driving.

One of the biggest causes of car accidents is related to distracted driving. According to the Department of Transportation, one in five (or 20%) of personal injury crashes are caused by distracted driving. Further, nearly one in seven (or 16%) of fatal car accidents involved reports of distracted driving. In 2009, 448,000 people were injured and 5,474 people were killed in distracted driver related car accidents.

Teen drivers are particularly at risk for dying in such automobile accidents due to their comfort level in texting and/or talking on a cell phone while driving. Car accidents are
the leading cause of death among teenagers. A recent survey also indicated nearly 84% of teens text or use a cell phone while driving even though they are aware of the danger.

Contrary to popular belief, even though it is true that talking on a cell phone is a safety concern, texting while driving is by far the most dangerous activity that you can engage in while driving. This is because it involves manual, physical, and cognitive distraction all at the same time. It also takes your eyes off the road for 4.6 seconds. If you are traveling at 55 MPH while texting, then you are willingly driving the length of a football field while completely blindfolded. Many might say that you might as well have a cigarette in your mouth and a group of people pointing guns at you!

The results can be beyond tragic. For example, in 2010 a five-year old who dreamed of becoming a football player was
struck while crossing the street by a young woman who was texting while driving. Following the accident he was paralyzed from the chest down. In another incident, a couple both lost their left leg because a 19-year-old sideswiped them after crossing a double yellow line while texting.

This problem is only expected to get worse as text and cell phones become more widespread. In June 2011 alone, 196 billion text messages were sent or received in the United States. This was a 50% increase from June 2009.

With regards to your personal injury case, it can have a major impact on your case in three very important ways.

First, if you were texting or talking on a cell phone and caused severe injuries to others, you are going to get sued. You will also likely lose because, in order to win a personal injury case, the other side will generally need to prove two things (that you were at fault and that they have injuries as a result). With the sheer amount of scientific data demonstrating the dangers of using a cell phone while driving, it is going to be virtually impossible for you to argue that you were paying attention. The research showing that talking on a cell phone while driving is equivalent to being a drunk driver will almost certainly be the nail in the coffin for anyone that thinks they will be able to argue that they were not distracted. This fact is so well accepted in courts that at least one judge is considering making the person texting the driver also liable for the injuries.

Second, Illinois law made it illegal to text while driving as of January 1, 2010. Additionally, Illinois law makes it illegal to talk on a cell phone while driving if you are in a school zone, construction zone, and those under 19. Illinois is also currently considering HB 3972, which would ban talking on a cell phone statewide if it becomes law. General personal injury law allows for courts to determine that the accident is your fault if you break a law (this is known as negligence per se). This means that, even if you were capable of making some argument as to why you were not at fault for the accident, then the court will look you straight in the eyes and tell you that they don’t care because you broke a law that was meant to protect people from harm.

Third, if you are using a cell phone when you get injured, then the other side is going to tell you that you are actually the one at fault. In Illinois, like in most states, if the other driver can prove that you were the primary cause of the accident, then the court can reduce the amount of money you are entitled to. If you are determined to be enough at fault for the accident, then the court will outright deny you any money for your claim. Given that there is now a law against using your cell phone while texting, and driving in some situations, the insurance companies now have a new tool readily available to them to try to reduce the amount of money you deserve. And trust me, as a former defense attorney, I assure you that they will use this tool.

If you, or a loved one, has been injured by a distracted driver, then you need information about your rights. At Shunneson Law Office, I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information or contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday – Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual.

Can I Inherit Property While I’m in Bankruptcy or File Bankruptcy After I Inherit Property?

Earlier this week I met a man whose mother had, unfortunately, recently passed away. Part of the estate included the mother’s home, which was worth $100,000. The man also had credit card debt, medical debt, and business debt of over $60,000. This man had two very good questions. First, whether he could file bankruptcy without telling the bankruptcy court before, or after, he accepted the inherited property. Second, whether he could keep the home if he did report it to the bankruptcy court.

As will be discussed more below, the answer to both of these questions was, surprisingly, yes.

With regard to the first question, it is understandable why clients feel that the inheritance should not be included in the pile of money that goes to creditors (called the bankruptcy estate). Inheritances generally consists of property their loved ones gave them in the hopes that it would help them through their tough times. In most cases, the inheritance is something people don’t even anticipate. Zero percent of people want to give everything they own to their sons or daughters creditors after they die. Many clients agree and feel as though the property passed on between generations for the purpose of making their life better shouldn’t be scooped up by bankruptcy trustees for the benefit of creditors that had no right to the property mere days before.

This view is supported by laws in many other areas. For example, inheritance property obtained by one spouse during the course of a marriage in Illinois is considered the non-marital property of that spouse and is not included in the marital estate. Unfortunately, the bankruptcy laws make inheritances an important part of the bankruptcy estate. In this regard, pursuant to 11 USC 541(a)(5), any property a debtor becomes “entitled to acquire within 180 days…by inheritance” is part of the bankruptcy estate. As such, if you are “entitled” to acquire property, whatever that property is, within 180 days of the date your petition is filed, then that inherited property is technically property of your bankruptcy estate. The word “entitled” was purposely used to communicate that the date the inheritance becomes part of the bankruptcy estate is the date the deceased passed away and not the date it is actually acquired. Accordingly, the inherited property is part of the bankruptcy estate even if your loved one dies after the petition is filed, and even if it takes years to actually acquire it.

As an aside, other provisions of the bankruptcy code also put duties on those that inherit property to let the court know of this fact. As such, many provisions of the law require that a debtor that has filed a petition prior to the entitlement date amend the bankruptcy paperwork to disclose the inheritance. This is an obviously necessary part of the law to make sure any property acquired by inheritance after the bankruptcy is filed is part of the estate. This means you can’t file a bankruptcy before you obtain any inheritances and avoid making it part of the bankruptcy estate.

With regards to the second question, the bankruptcy code actually will allow you to keep the home in certain situations. This very pro-creditor law that gives your creditors property from your loved ones after they pass away six months after your bankruptcy is filed is tempered by other provisions of the bankruptcy law. The bankruptcy code allows for debtors to use certain “exemptions” to keep property. Initially, all clients are well-advised that they are allowed to discharge mortgage loans in Chapter 7 bankruptcy. However, most people with questions about an inherited second home want to know if they can keep both their own home and the second home. In order to do that, you will need to do two things (at least in a Chapter 7 case).

First, you will need to “reaffirm” with the bank. This consists of signing a new contract with the banks stating you will continue to pay your mortgage. In most cases, this is a fairly simple process if you can show ability to pay for the mortgage.

Second, you must be sure that the available “equity” (value of the home above the mortgage) in your home does not exceed the available exemptions. For your residence, this requires a review of the various homestead exemptions. This exemption is not available for your second home. Instead, you will need to utilize one of the other available exemptions. Most often, this will be the wild card exemption.

For example, in the situation with the man whose mother had recently passed away, we had to inform the man that his second home would probably be part of the bankruptcy estate under the bankruptcy law. However, it turned out that this second home had a mortgage of $94,000 and an estimated value of approximately $96,000 – $100,000. Of course, bankruptcy laws require that you provide proof of the value of a home. An appraisal would be necessary to determine whether the bankruptcy code could actually allow the man to file bankruptcy, reaffirm his mortgages, and keep both homes. For the sake of argument, however, let’s assume the appraisal comes back in the man’s favor for $94,000. This would allow for the man to keep both homes under current bankruptcy law. Given the market for homes right now, it is very likely the appraisal will come back in his favor.

At Shunneson Law Office, I am devoted to giving you a fresh start, while protecting important property in the face of overwhelming debt. Contact us for a consultation or for a FREE INFORMATION PACKAGE to better inform you prior to talking to an attorney, or anyone else making promises about your financial future. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. The materials also mainly concern Chapter 7 bankruptcies. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net.

Explaining the Basis, Grounds and Ways to Get a Divorce in Illinois

Many clients have difficulties understanding what the requirements are in Illinois to dissolve their marriage. Unlike most states, Illinois allows for parties to ask for a dissolution (divorce) on the basis of “no-fault” and “fault.”
Illinois’ divorce law allows for no-fault divorces, as well as fault divorces on the grounds of impotency, bigamy, adultery, desertion for a period of one year, drunkenness, drug addiction, attempted murder of the other spouse, infected the other spouse with an STD, cruelty or a felony conviction. Illinois is in the minority of states that still has such laws. As you can imagine, filing for divorce on the basis that one party is at-fault for the divorce often creates unnecessary tension and fighting between the parties. It also encourages people to engage in morally questionable activities such as intentionally committing adultery in order to obtain a divorce (which you are advised not to do because one defense to this type of divorce is that you only did it to get the divorce).

Fortunately, due to the ability of parties to file a “no-fault” divorce, most married clients seeking a divorce no longer need to blame their husband or wife for the divorce. As in every other state in the country, Illinois’ divorce law also allows for individuals to get a divorce based solely on the fact the marriage has become untenable. This is known as a “no-fault” divorce. The only basis you need for a divorce under this ground is that the parties have been separate and apart for the statutory period, that “irreconcilable differences” have arisen, and that the marriage is “irretrievably broken.” As a practical matter, this means you can get a divorce on the basis that you just don’t want to be married anymore and that any attempts to reconcile have either failed or would be pointless.

However, due to politics, and the public policy in Illinois of protecting the sanctity of marriage, Illinois places restrictions on individuals seeking to utilize the no-fault ground in obtaining a divorce. In this regard, because Illinois is a “modified no-fault” divorce state, Illinois has a fairly draconian separation requirement for a no-fault divorce. Specifically, Illinois requires that the parties “have lived separate and apart for a continuous period in excess of 2 years.”

This draconian requirement is tempered in four important ways. First, it can be reduced to six months provided the parties agree to waive the full 2 year period. Second, the separation requirement is determined from the date of the trial or judgment and not from when the petition is filed. Many divorces will take years to become final and, as such, the separation requirement may be met during the course of litigation. Third, you should be aware that “separate and apart” does not mean that you have to be actually living in separate residences. Rather, so long as the parties have clearly not been living together as husband and wife, then the parties are living separate and apart, even if living in the same home. Fourth, the law allows for parties to try to reconcile and doesn’t count the following periods in determining the continuous period:

  • Any period of cohabitation during which the parties attempted in good faith to reconcile and participated in marriage counseling under the guidance of any of the following: a psychiatrist, a clinical psychologist, a clinical social worker, a marriage and family therapist, a person authorized to provide counseling in accordance with the prescriptions of any religious denomination, or a person regularly engaged in providing family or marriage counseling; and
  • Any period of cohabitation under written agreement of the parties to attempt to reconcile.

Of course, the situation still comes up where one spouse is completely against the divorce, there is no legal ground for a fault divorce, and the separation period has not yet begun. In this situation, clients should consider a legal separation. By filing a petition for legal separation, a party may obtain reasonable support, maintenance, and other benefits while they live separate and apart. These proceedings are virtually identical to divorce proceedings in most aspects. This lets a court decide many issues without actually dissolving the marriage. Very often, a legal separation Order wherein the Court determines the property rights of parties, and awards appropriate support and maintenance between the parties, will be recognized in the subsequent divorce proceeding.

Even though Illinois allows for a no-fault or fault divorce, parties with the option of both should utilize them! It is my opinion that parties are well-advised to file divorce on one of the fault grounds for divorce and, in the alternative, the no-fault ground for divorce. After the separation requirement has been met during the course of litigation, the parties can convert the case to a no-fault divorce and dismiss any of the fault grounds.

At Shunneson Law Office, we are dedicated to helping you through your difficult family situation. We strive to understand your particular issues and needs. Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847-693-9120.

-Drake Shunneson (copyright 2012)

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.Photos courtesy of FreeDigitalPhotos.net.