2/11/2025 Medicaid Planning Trusts

In Medicaid planning, there are three primary types of trusts that are generally exempt from the Medicaid trust rules: special needs trusts, Medicaid income trusts, and pooled trusts.

Special needs trusts, also known as supplemental needs trusts, are designed for individuals under the age of 65 who are disabled. These trusts are established by a parent, grandparent, legal guardian, or a court, and they allow the disabled individual to receive assets without disqualifying them from Medicaid assistance. The trust must include a Medicaid pay-back provision, which requires that any remaining assets in the trust upon the individual's death be used to reimburse the state for Medicaid benefits provided Austin v. Capital City Bank, 353 P.3d 469, ¶ 1005 Other Planning Tools.
Medicaid income trusts, also known as Miller trusts, are used in certain states to control the amount of income that is considered when determining Medicaid eligibility. These trusts are particularly useful in income-cap states, where an individual's income may exceed the Medicaid eligibility threshold. The trust allows the individual to direct excess income into the trust, thereby qualifying for Medicaid benefits. Like special needs trusts, Medicaid income trusts must also include a pay-back provision to reimburse the state for Medicaid benefits provided ¶ 1005 Other Planning Tools, Hegadorn v. Dep't of Human Servs. Dir., 503 Mich. 231. Both Iowa and Illinois have specific rules and requirements for Miller trusts to assist individuals in qualifying for Medicaid. In Iowa, the trust must be irrevocable and is used to exclude income from Medicaid eligibility calculations, while in Illinois, the trust must comply with federal Medicaid reimbursement requirements and can be used to protect the assets of individuals with disabilities.
Pooled trusts are established and managed by nonprofit organizations and are designed for individuals with disabilities. These trusts pool the resources of multiple beneficiaries for investment and management purposes, while maintaining separate accounts for each beneficiary. Pooled trusts are intended for individuals with relatively small amounts of money, as pooling resources helps reduce overhead and expenses, making more funds available to the beneficiaries. Disabled individuals of any age can establish sub-accounts within pooled trusts, and these trusts must also include a Medicaid pay-back provision Pooled Advocate Trust v. S.D. Dep't of Soc. Servs., 2012 SD 24, Hutson v. Mosier, 54 Kan. App. 2d 679, Lewis v. Alexander, 685 F.3d 325.
Each of these trusts serves a specific purpose in Medicaid planning, helping individuals with disabilities or those with excess income to qualify for Medicaid benefits while preserving their assets Austin v. Capital City Bank, 353 P.3d 469, Hegadorn v. Dep't of Human Servs. Dir., 503 Mich. 231, Pooled Advocate Trust v. S.D. Dep't of Soc. Servs., 2012 SD 24.

2/11/2025 Sentencing of Probation in Criminal Cases

In Iowa, probation in criminal case sentencing can include several types of conditions and requirements. According to 910.4 Condition of probation — payment plan, when restitution is ordered, it becomes a condition of probation. Failure to comply with restitution can lead to contempt of court, revocation of probation, or an extension of the probation period, but not beyond the maximum period allowed for the offense. A suspended sentence is another option where the execution of the sentence is suspended as long as the defendant complies with court-imposed conditions.

In Illinois, probation can be imposed under various statutes depending on the offense. For instance, under 730 ILCS 5/5-6-3.4 Second Chance Probation., a person who has not previously been convicted of a felony and is found guilty of certain offenses may be sentenced to probation without entering a judgment, provided they comply with specific conditions such as reporting to a social service agency, undergoing treatment, or refraining from drug use 730 ILCS 5/5-6-3.4 Second Chance Probation.. Similarly, under 720 ILCS 550/10 [Probation], a person guilty of certain cannabis-related offenses may be placed on probation for 24 months, with proceedings deferred until the probation period concludes or a violation occurs. The court may also refer individuals to a drug court for evaluation before sentencing them to probation 720 ILCS 550/10 [Probation]. Additionally, 720 ILCS 646/70 Probation. allows for probation for first-time methamphetamine possession offenders, with the possibility of discharge and dismissal upon successful completion of probation terms 720 ILCS 646/70 Probation..

In conclusion, both Iowa and Illinois offer various probation options in criminal case sentencing, with specific conditions and requirements tailored to the nature of the offense and the offender's circumstances. These options aim to provide rehabilitation opportunities while ensuring compliance with legal and restitution obligations.

2/11/2025 Military Pensions

Military pensions are generally considered marital property and are subject to division upon divorce. The Uniformed Services Former Spouses' Protection Act (USFSPA) allows state courts to treat disposable retired pay as marital property and divide it between spouses during divorce proceedings, subject to state law § 1408. Payment of retired or retainer pay in compliance with court orders.

In Iowa, the distribution of military pensions in divorce proceedings is governed by the Iowa Code section 97B.48(1). The benefits can be paid either as a lump sum or as monthly payments, depending on the retirement option chosen by the member. The division of benefits is based on the gross amount of the benefits payable, and federal and state income taxes are deducted from the respective shares of the member and the former spouse. The alternate payee is not entitled to any share of the member's death benefits unless specified in a Qualified Domestic Relations Order (QDRO) or a beneficiary designation filed after the dissolution 495-16.2(97B) Domestic relations orders..

In Illinois, military pensions are considered marital property and are subject to division under the Illinois Marriage and Dissolution of Marriage Act. The division is typically done through a Qualified Illinois Domestic Relations Order (QILDRO). The QILDRO allows for the diversion of certain benefits to an alternate payee but does not affect the vesting, accrual, or amount of any benefit. The court can order that all or part of the member’s retirement benefit, refund, or death benefit be paid to the alternate payee. The division of pension benefits is seen as an allocation of property in which each spouse has a common ownership 750 ILCS 5/503 Disposition of property and debts., 40 ILCS 5/1-119 Qualified Illinois Domestic Relations Orders..

In conclusion, both Iowa and Illinois recognize military pensions as divisible marital property in divorce proceedings, with specific mechanisms in place to ensure the proper allocation of these benefits to the alternate payee.

5/17/2024 Parenting

Proving someone is a "bad parent" in court is a serious matter and requires substantial evidence to support such claims. The definition of a "bad parent" can vary depending on the context and legal standards in your jurisdiction. Generally, courts consider factors such as the child's well-being, safety, and best interests when determining parental fitness. Here are steps you might take:

1. Documented Evidence: Collect any documented evidence that demonstrates the parent's behavior or actions that may be detrimental to the child's well-being. This could include records of neglect, abuse, substance abuse, criminal activity, or failure to provide for the child's basic needs.

2. Witness Testimony: Gather witness testimony from individuals who have observed the parent's behavior firsthand and can provide insight into their parenting abilities. This might include teachers, neighbors, family members, or social workers.

3. Expert Opinions: Consider seeking opinions from relevant experts, such as psychologists, child welfare professionals, or counselors, who can assess the parent's behavior and its impact on the child.

4. Child's Testimony (if appropriate): In some cases, depending on the child's age and maturity level, their testimony or statement about their experiences with the parent may be considered as evidence.

5. Police Reports and Legal Documents: Obtain any police reports, restraining orders, or legal documents related to incidents involving the parent that may indicate a pattern of behavior that is harmful to the child.

6. Documentation of Parenting Issues: Keep a record of any issues or concerns related to the parent's ability to care for the child, such as missed visitations, failure to communicate, or refusal to follow court orders.

7. Physical Evidence: If applicable, gather any physical evidence, such as photographs of injuries or unsafe living conditions, that may support your case.

8. Character Witnesses: Present witnesses who can testify to the parent's character, behavior, and parenting abilities, providing both positive and negative observations.

9. Child Custody Evaluations: In some cases, the court may order a child custody evaluation conducted by a neutral third party to assess each parent's fitness and make recommendations regarding custody and visitation.

4/30/2024 Illinois - Divorce Proceeding - Exchanging Financial Information

Exchanging financial information as part of a divorce proceeding, it's crucial to ensure you're prepared with accurate and comprehensive documentation. Here's a checklist of what you may need:

1. Income Documentation:

• Recent pay stubs.

• Income tax returns for the past few years.

• Any documentation of additional income sources (e.g., rental income, investment dividends).

2. Asset Documentation:

• Bank account statements.

• Investment account statements (stocks, bonds, mutual funds, etc.).

• Retirement account statements (401(k), IRA, pension plans).

• Real estate documents (deeds, mortgage statements, property appraisals).

• Vehicle ownership documents (car titles, loan statements).

3. Liability Documentation:

• Mortgage statements.

• Loan statements (personal loans, car loans, student loans).

• Credit card statements.

4. Expense Documentation:

• Monthly bills (utilities, insurance premiums, etc.).

• Childcare expenses.

• Education expenses.

• Healthcare expenses.

5. Tax Returns and Filings:

• Copies of filed tax returns for the past few years.

Any relevant tax filings related to joint ventures or businesses.

6. Financial Affidavits:

• Some jurisdictions may require a financial affidavit detailing your income, assets, liabilities, and expenses.

7. Business Interests:

• Documentation related to any ownership or interests in businesses, including financial statements, profit and loss statements, and tax filings.

8. Retirement Plans:

• Details of any retirement plans, including vested amounts, contributions, and beneficiary information.

9. Insurance Policies:

• Life insurance policies.

• Health insurance policies.

• Any other insurance policies with financial implications.

10. Estate Planning Documents:

• Wills.

• Trust documents.

• Powers of attorney.

• Any other relevant estate planning documents.

11. Other Financial Documents:

Any other financial documents that may be relevant to your specific situation, such as inheritance documentation, prenuptial agreements, or business contracts. It's important to gather as much documentation as possible to ensure transparency and facilitate a fair division of assets and liabilities during the divorce proceedings. 

4/23/2024 Illinois - Marital Property

In Illinois, marital property is divided according to the principle of equitable distribution, which means that marital assets and debts are divided fairly, but not necessarily equally, between the spouses upon divorce. Here's an overview of how the division of marital property works in Illinois:

Identifying Marital Property: Marital property generally includes all assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title or account. This can include real estate, vehicles, bank accounts, retirement accounts, investments, household items, and debts incurred during the marriage.

Valuation of Marital Property: The next step is to determine the value of each marital asset and debt. This may require appraisals for certain assets, such as real estate or businesses, and gathering documentation of the value of financial accounts and other assets.

Classifying Non-Marital Property: Certain assets may be considered non-marital or separate property and are not subject to division in the divorce. Non-marital property generally includes assets owned by either spouse before the marriage, gifts and inheritances received by one spouse during the marriage, and certain other types of property as defined by law.

Factors Considered in Division: Illinois law outlines several factors that the court considers when determining how to divide marital property, including:

• Each spouse's contribution to the acquisition, preservation, or increase in value of marital property.

• The duration of the marriage.

• The economic circumstances of each spouse, including their earning capacity, needs, and obligations.

• Any dissipation of marital assets by one spouse (such as wasting marital funds on an extramarital affair).

• Any agreements between the spouses regarding property division.

Court Decision or Settlement: If the spouses are unable to reach a mutually agreeable settlement regarding the division of marital property, the court will make a decision based on the evidence presented and the factors outlined in state law. If the spouses are able to agree on a division of property, they can submit a proposed settlement agreement to the court for approval.

Finalizing the Division: Once the court has issued a judgment of dissolution of marriage (divorce decree), it will include provisions for the division of marital property. This judgment legally divides the marital assets and debts between the spouses, and each party is then responsible for their allocated share of the property and debts.

It's important to note that while equitable distribution aims for fairness, it does not always result in an equal 50/50 split of marital property. The division will depend on the specific circumstances of each case and what the court determines to be fair and equitable under the law.

Criminal Law Attorney Near Me. Davenport. Bettendorf. Iowa. Moline. RockIsland. Illinois

4/16/2024 Illinois - Driving Under the Influence (DUI)

In Illinois, driving under the influence (DUI) laws are quite stringent. 

Blood-Alcohol Concentration (BAC): It is illegal to drive with a BAC of 0.08% or higher. However, you can be convicted of DUI if your BAC is less than 0.08% and your driving ability is impaired1.

Cannabis Influence: Driving under the influence of cannabis prescribed for medicinal purposes is also prohibited. Drivers must not operate a vehicle if impaired by cannabis and must transport it in a tamper-evident container that is inaccessible while driving.

Other Drugs: Driving under the influence of any drug, including prescription and nonprescription drugs that impair safe driving, is illegal.

License Suspension: Refusing to submit to a BAC test can result in a one-year driver’s license suspension, or three years for a second refusal

Penalties: A DUI is a class A misdemeanor, which can be punished by up to one year in jail. It may become a felony if there are past traffic convictions or if driving without a valid driver’s license.

Criminal Law Attorney Near Me. Davenport. Bettendorf. Iowa. Moline. RockIsland. Illinois

4/9/2024 Iowa - Operating While Intoxicated (OWI)

According to Iowa Law, “operate” means to have direct and immediate control over a vehicle that is moving or has an active engine. It’s possible to be found guilty of OWI even if one is not actively driving, as long as they are in command of the vehicle. The severity of the penalties may differ depending on the unique details of each incident. 

1. • First Offense: Considered a serious misdemeanor, it typically includes 48 hours to one year in jail, a $1,250 fine, and a 180-day license revocation

   • Second Offense: Classified as an aggravated misdemeanor with penalties of seven days to two years in jail, fines ranging from $1,875 to $6,250, and a one-year license revocation

   • Third Offense: Treated as a Class D Felony, carrying 30 days to five years in jail, $3,125 to $9,375 in fines, and a six-year license revocation

Criminal Law Attorney Near Me. Davenport. Bettendorf. Iowa. Moline. RockIsland. Illinois

4/1/2024 Inheritance rights of adoptive child

Adoption legally establishes a parent-child relationship between adoptive parents and the legally adopted children. Inheritance laws recognize adopted children as having the same rights as biological children. When a person dies without a valid will (intestate), assets are distributed according to state law. Adopted children inherit from their adoptive parents just like biological children. Creating a valid will explicitly outlining wishes is crucial to secure these rights.

Legal Parent-Child Relationship

1. • Adoption severs ties between the child and their birth parents.

   • Adopted children’s inheritance rights are linked solely to their adoptive parents.

   • Birth parents typically have limited legal rights once adoption is finalized.

Intestate Succession Laws

1. • When there’s no valid will, intestate succession laws dictate estate distribution.

   • Adopted children are treated as biological children under these laws.

Family Law Attorney Near Me. Davenport. Bettendorf. Iowa. Moline. RockIsland. Illinois

4/1/2024 Guardianship in Iowa

Powers and Duties of a Guardian

A guardian’s powers and responsibilities are outlined in the court order appointing them.

Key duties include:

Carrying out court-assigned responsibilities: Guardians must fulfill their duties as specified by the court.

Staying within legal limits: Guardians operate within the boundaries set by the law or the court.

Understanding the protected person’s needs: Guardians should be aware of what the individual they’re protecting requires.

Filing annual reports: Guardians are responsible for preparing and submitting annual reports.

Planning for services: Guardians collaborate with service providers, case managers, and funding personnel to ensure the protected person’s needs are met.

Balancing risks and benefits: Guardians make informed decisions by considering risks and benefits while respecting the protected person’s wishes (if known).

Maintaining regular contact: Guardians stay in touch with the protected person.

Facilitating supportive relationships: Guardians encourage positive connections with family members and significant others.

Limits of a Guardian’s Power:

Guardians only possess the authority granted by the court. The court can impose restrictions on a guardian’s power. Some decisions may remain with the protected person. Other interested parties and the court can review and challenge guardians’ decisions. 

Providing for the Protected Person:

Guardians ensure the protected person’s basic needs are met (food, shelter, healthcare, social interaction, and activities).

They promote training and education to enhance the individual’s independence.

Guardians don’t have to personally fund these needs; eligible governmental benefits or services can cover them.

Residence Decisions:

Guardians often decide where the protected person lives.

Family Law Attorney Near Me. Davenport. Bettendorf. Iowa.

11/24/2023 Divorce in Iowa

Unless the responder is personally served in Iowa, one or both spouses must have resided in the state for at least a year in order to file for divorce. The marriage is irretrievably broken, and neither party is held responsible, according to the no-fault grounds for divorce. A petition for dissolution of marriage must be filed and served to the respondent, who has 20 days to respond. The divorce decree cannot be obtained until after a ninety-day waiting period, unless the court waives it for a valid reason. Unless the parties agree on a formal settlement, the court will make decisions about matters like property division, custody, support, and alimony. 

For more information on family law in Iowa, you can visit the Iowa Judicial Branch website.

Family Law Attorney Near Me. Davenport. Iowa.

10/16/2023 How is child custody determined in Iowa ?

In Iowa, child custody is classified into two types: legal custody and physical care. Legal custody grants parents the authority to make decisions on behalf of the child, such as medical care, education, and religion. Physical care refers to the right to maintain a home and living routine for the child. The court must consider the best interest of the child and order a custody arrangement that allows the child to have maximum contact with both parents, unless physical or significant emotional harm is likely to occur. The court must also consider granting joint legal custody if either party requests it, unless there is clear and convincing evidence that it is unreasonable and not in the best interest of the child. Joint legal custody means that both parents have equal legal custody rights and responsibilities. Iowa courts tend to award both parents legal custody, but tend to disfavor shared physical care 

For more information on family law in Iowa, you can visit the Iowa Judicial Branch website.

Family Law Attorney Near Me. Davenport. Iowa.

9/20/2023 How is property division handled in an Iowa divorce ?

In Iowa, property division during a divorce is governed by the principle of equitable distribution. This means that the court aims to divide the shared property fairly and equitably between the spouses. All property acquired before or after the marriage, except for gifts and inheritances received before or during the marriage, is subject to division. The court may also set aside a portion of the property for the support, maintenance, and education of any minor children.

To determine the division of property, Iowa judges consider various factors, including the length of the marriage, each spouse’s age, physical and emotional health, prenuptial agreements, agreements between the spouses concerning property division, and more. The court also takes into account each spouse’s earning capacity, contributions to the marriage, economic circumstances, and the desirability of awarding the family home to the party with physical custody of the children.

It’s important to note that equitable distribution does not necessarily mean an equal 50/50 split of assets. Instead, the court aims to achieve a fair distribution based on each individual’s contributions to the marriage and their earning ability and needs following separation.

For more information on divorce laws in Iowa, you can visit the Iowa Judicial Branch website.

Family Law Attorney. Davenport. Iowa.

9/13/2023 Can you give me an example of a warrantless search ?

Yes, there are some exceptions to the search warrant requirement. For example, if you give consent to a search or if there is probable cause to believe that evidence of a crime is present in your vehicle or residence, then a warrantless search may be conducted .

Another example of a warrantless search is when the police search your trash left for collection outside your home. However, the Iowa Supreme Court has recently banned police from searching people’s uncollected trash without a warrant .

It is important to note that these exceptions are limited and that the police must have a valid reason for conducting a warrantless search. If you believe that your rights have been violated during a search or seizure, it is advisable to contact an attorney who specializes in criminal defense.

Criminal Law Attorney. Davenport. Iowa.

9/13/2023 Can the police search my phone without a warrant ?

Police officers typically need a search warrant to search a person’s cell phone. They must show probable cause for a judge to issue a warrant. A search warrant is a court order indicating the parameters of a search. Unreasonable searches and seizures violate your constitutional rights .

In 2014, the Supreme Court unanimously ruled in Riley v. California that the police need search warrants to search cell phones of people they have arrested. This Supreme Court decision was made to clarify the extent of 4th Amendment protections.

However, there are some exceptions to this rule. For example, if the police have probable cause to believe that your vehicle contains contraband or evidence of a crime, they may search all parts of the vehicle as well as closed containers in the vehicle .

Criminal Law Attorney. Davenport. Iowa.

9/13/2023 Can the police search my car without a warrant if they smell marijuana ?

The legality of warrantless searches based on the smell of marijuana varies depending on the state. In some states, such as Massachusetts and Vermont, the smell of marijuana alone is not sufficient to justify a warrantless search.

In Florida, police can search your car if they smell burnt marijuana. The Second District Court of Appeals held that the recent legalization of hemp was not enough to overcome the precedent of permitting warrantless searches based on the odor of marijuana.

In Iowa, if the police have probable cause to believe that your vehicle contains contraband or evidence of a crime, they may search all parts of the vehicle as well as closed containers in the vehicle without a warrant.

Criminal Law Attorney. Davenport. Iowa.

9/12/2023 Do I have to pay alimony in Iowa, if so how much ?

During a divorce or legal separation, a spouse can file for a maintenance order, also known as alimony. The court may grant temporary or permanent maintenance award for a dependent spouse, and the amount and length of time the maintenance continues is based on the court’s decision. The court will not consider marital misconduct, and the payments may be paid from the income or property of the other spouse depending on the decision of the court. The court takes into consideration several factors, such as the standard of living established during the marriage, the length of the marriage, and the income and property of each party. The needs of both parties are also considered, including any impairment of present or future earning ability due to domestic duties or delay in education, training, employment, or career opportunities due to the marriage. When deciding the length of time that payments will be required, the court will often consider the time needed to acquire training, education, or employment. The earning ability of both parties is considered along with their age and physical and mental health, which may affect their earning capabilities. Other things taken into consideration are tax consequences that property division has had on the monetary estate of both parties and the capability of the spouse from whom support is sought to afford payments while maintaining their current standard of living.

The amount and duration of awarded spousal support is at the discretion of the judge. After determining a need and ability to pay, there are several factors that courts use to ensure a fair and just award. Iowa divorce law does not use a pre-determined formula.

There is no mathematical formula for guidelines in Iowa as in other states. However, Legal Calculators provides an estimate of a potential alimony award in Iowa using a formula suggested by In re Marriage of Gust.

You can use this calculator by providing your yearly gross income and your spouse’s yearly gross income along with your marriage length in years.

Family Law Attorney. Davenport. Iowa.