DuPage County estate planning attorney, life estate, your estate plan, estate planning goals, Illinois estate planningEstate planning often involves the balancing of the needs of several family members and friends, and a desire to make sure that they are provided for after the planner’s death. For example, a man may wish to leave his property to his grandchildren, yet also wants to ensure his sister has a place to live until her death. In order to execute this kind of arrangement, the man may wish to leave his sister a life estate in the property, with full ownership vesting in the grandchildren after the sister’s death.

A life estate presents a way for an owner to pass an ownership interest in real property to another person for the duration of that person’s life. At the life estate holder’s death, the interest passes back to the original owner or to another designated person. The person who receives the real property after the life estate is terminated is known as a remainderman.

The life estate holder does not have all the rights that a person would have if he or she owned the property outright. For example, the life estate holder cannot sell the property without the permission of the remainderman. However, if the legal document that grants the life estate has no limitations on transfer, the life estate holder can sell the life estate interest or lease it for the duration of his or her lifetime.

The life estate holder is required to make ordinary repairs to the property, avoid neglecting, wasting, or negatively altering the property, and generally take steps to avoid damaging the value of the property. The life estate holder may also be required to pay taxes on the property and other costs associated with upkeep of the property.

Because of these added expenses, the grantor of the life estate should consider whether granting the life estate will present more of a burden to the beneficiary than a gift. If the life estate holder is also receiving a monthly upkeep from a trust, this may not be a major concern.

A landowner can also grant himself or herself a life estate in his or her property with the remainder estate passing to a family member or friend upon the owner’s death. However, these kinds of transfers can affect the owner’s eligibility for government benefits such as Medicaid, and have negative tax consequences for the owner if there is a sale of the property.

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If you are considering an estate plan that includes the grant of a life estate, you should speak to an experienced DuPage County estate planning attorney for more information. There may be other ways to distribute your assets that are more advantageous than the use of the life estate, and still achieve your desired estate planning goal. Contact Momkus McCluskey Roberts LLC for a consultation today.




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businesses filing for bankruptcy, Chapter 11 bankruptcy, DuPage County business attorneys, file for bankruptcy, Chapter 7 bankruptcyBusinesses sometimes come to an end because they can no longer bring in enough income to support the expenditures. When a business has insurmountable debt, and cannot find another way to raise capital or increase income, it may be best to file for bankruptcy.

There are several different types of bankruptcies, and depending on how the business is organized, the business may have more than one option from which to choose.

Businesses can file for Chapter 11 bankruptcy if they wish to reorganize their debt and set a payment plan to repay all their creditors. This can be a good plan if the business expects to raise its revenue in the future, and selling its currents assets in another form of bankruptcy will result in bigger losses. After the initial filing, the business still remains under the control of the owners. However, a trustee may be appointed if there is an allegation of management or fraud.

Chapter 11 bankruptcy presents some advantages to the business in that it can void existing contracts, including contracts with employees and suppliers. However, the business is also closely monitored during the bankruptcy process and cannot make any moves, like selling off major assets, without court approval.

Businesses can also file for Chapter 7 bankruptcy. This kind of bankruptcy allows the business to discharge its debts. Owners of sole proprietorships can file for Chapter 7 bankruptcy in order to discharge their personal debts along with those of the business. Generally, once a business files for Chapter 7 bankruptcy, the business cannot be operated anymore. Business assets that are deemed non-exempt are liquidated or sold to pay off creditors.

For businesses that are organized in such a way that they are not a separate legal entity from the owner, the owner may file for Chapter 13 bankruptcy to eliminate debt. Business entities such as corporations cannot file for Chapter 13 bankruptcy. Like Chapter 11, this form of bankruptcy allows the person filing for bankruptcy to reorganize his debts and enter a repayment plan to pay off part or all of the debt.

For some businesses it may be better to restructure debts instead of filing for bankruptcy. In some cases, it may also be cheaper to restructure debt than file for bankruptcy. Debt restructuring can be done through negotiating down the existing debt, for example by extending the time it will take to pay back the debt. In discussing the bankruptcy option with an attorney, debt restricting should be discussed as an option.

Contact an Experienced Business Attorney

If you are a business owner considering filing for Chapter 7 or 11 bankruptcy for your business, you need to consult with an experienced business attorney. There are different factors to be considered in choosing the right form of bankruptcy for your business and personal needs. For more information, contact the passionate DuPage County business attorneys at Momkus McCluskey Roberts, LLC for a consultation.



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child support calculations, DuPage County child support lawyer, Illinois child support law, parenting time, pay child supportThe way child support is calculated in Illinois has changed. In a law that was effective July 1, 2017, the method of setting child support as a percentage of one parent’s income will be replaced by a calculation based on both parents’ income. This is known as an income sharing approach to child support, and is supposed to be more equitable to both parents.

Under the new law, income that will be included in calculating the parents’ incomes will include sources that were not previously considered income, such as spousal support, and spousal support awarded in a prior divorce. If a parent is paying court ordered spousal support, this will be deducted in computing net income available for child support. However, any funds received from public assistance, and any child support received for support of other children in a parent’s household will not be taken into account as income.

The Illinois Department of Health and Family Services is tasked with coming up with the applicable schedules that will be used as guidelines of the amount to be awarded in child support under the new system. Using these guidelines and the parent’s income will be the way courts will determine child support in most cases.

As an example, if after adding both parents’ net incomes the total is $10,000, and the parents have two children, the schedule reflects that $2,173 will be considered available for the support of the children. If one parent earns 30 percent of the combined income, while the other earns 70 percent, the support obligation is divided in those percentages. Assuming the parent who earns 30 percent has the majority of the parenting time with the children, the parent who earns 70 percent will be ordered to pay approximately $1,521 in child support payments to that parent.

A parent’s parenting time will also play a part in calculating child support. If a parent has the child for 146 nights in a year, the parent would pay less in child support than a similarly situated parent who has the child for less time. This provision may present a concern that some parents will fight over custody solely in order to avoid paying more in child support. While this may be true, the law does not change the fact that the court ultimately decides the issue of parenting time based on the best interests of a child.

Contact Us for More Information

If you are seeking child support for your children, and are unsure of how the new law will affect the amount you receive in child support, and how your petition for primary parenting time will be affected, you need to consult an experienced DuPage County child support lawyer at Momkus McCluskey Roberts, LLC today.




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assignment of rights, DuPage County business law attorneys, intellectual property, employment contracts, copyright lawsIntellectual property assets can be some of the most valuable assets a company owns. A business that recognizes the value of IP assets to its overall business can take steps to ensure that the business has rights or owns the IP in question outright.

Failure to take the appropriate steps to safeguard these assets can be disastrous for a business when it comes to enforcing what the business believes to be its IP rights.

One area in which business owners need to be especially careful is when it comes to IP created or invented by employees. Under copyright laws, creative works created by employees are generally covered under the “work for hire” provisions. If the employee creates the creative work in the ordinary course of his or her employment, chances are the work will qualify as a work for hire, with the copyright vesting in the employer.

The assigning of the copyright passes from the employee to the employer even without an express written agreement between the employer and employee as to the assignment of copyrights for work created in the scope of employment. Note that there are specific rules governing how works for hire are analyzed; if the business hired an independent contractor, a written agreement is required in that case.

Things get more complicated when dealing with patented inventions. If there is no written agreement as to who owns an employee invention, an analysis has to be done to determine whether the invention belongs to the employer, or whether the only right to the invention that the employer has is a limited license to the invention.

If an employee is specifically hired to create the invention, and given directions and specific parameters within which to create the invention, the right to the invention generally belong to the employer. However, if an employee is hired to generally come up with inventions, and there is no written agreement as to the rights over such inventions, the rights may belong to the employee.

Where there is no written agreement, and the employee used the employer’s resources to create the invention, the employer is allowed limited “shop rights” to the invention. This allows the employer to use the invention in the course of its business.

Most businesses do include IP assignment clauses in their employment contracts, especially if they are industries where employees routinely come up with inventions, for example in the technology and pharmaceutical fields. These agreements are always a good idea for the business, but should be properly vetted by an experienced attorney to ensure the language does not run afoul of the law. For example, the Illinois Employee Patent Act restricts some assignment language from being included in employment contracts.

Contact Us for Legal Assistance

It is best not to assume that your employees’ creations would be automatically transferred to your business if the invention was created at work. To discuss how an experienced DuPage County business attorney can assist you in identifying how best to protect your company’s intellectual property and maximize its use, contact us at Momkus McCluskey Roberts, LLC.




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alternate dispute resolution, arbitration, child support payments, DuPage County divorce attorney, mediation, parenting planNot all couples who get divorced want to go through litigation in order to resolve their issues. Some couples seek other dispute resolution processes, such as mediation and arbitration, especially when they have children in order to limit the animosity during the divorce. In addition, mediation and arbitration are favored because they are, in many ways, cheaper than litigation.

Mediation is a process by which a neutral third party, known as a mediator, facilitates the spouses’ negotiations over the division of property, spousal support, or child custody issues in the divorce process. The couple goes back and forth, working with the mediator, until the main issues are agreed upon and put together in an agreement for a judge’s approval.

When children are involved, it can work well for the parents, allowing them to concentrate on coming up with a parenting plan that works well for the parents and is ultimately in the best interest of the children. Parents cannot negotiate away child support payments. The requirement to support a person’s children is required by law, and there are statutory requirements as to the minimums to be paid.

In some cases, mediation is required even when a divorce is litigated in the court if the parents are in conflict over issues related to their children. If parents are ordered to attend mediation by a judge, the parents can choose their own mediator or they can use a court approved mediator.

Arbitration is similar to mediation in that the process is less formal than going to court. However, the process still resembles the litigation process. In arbitration, the couple can present evidence and call witness, and the neutral arbitrator makes the final decision on the disputed issues. A court would still have to sign off on the ultimate agreement reached through this process. Unlike mediation, there is less negotiation.

Both mediation and arbitration can cut down the time and cost of a traditional divorce. Therefore, if the couple can agree to resolve their divorce through these alternative dispute resolution methods, it can be better for them in the long run. These methods, especially mediation, can also leave both parties feeling as though the divorce was fair to them.

Contact an Experienced Divorce Attorney

Deciding what you want to get out of your divorce process and how you may best protect your children can play a large role in deciding whether to pursue alternative dispute resolution instead of going through litigation. Before making the final decision, it is best to consult an experienced DuPage County divorce attorney who can help you work out the pros and cons of each approach so you can make an informed decision. For more information on how our firm can help you make the best decision for you, contact Momkus McCluskey Roberts LLC for help.



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