|
| | 99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016 HB1520 Introduced 2/6/2015, by Rep. Robert W. Pritchard SYNOPSIS AS INTRODUCED: |
|
750 ILCS 5/503 | from Ch. 40, par. 503 |
|
Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that in determining the issue of dissipation, the court may consider a party's conviction for domestic battery, aggravated domestic battery, violation of an order of protection, or any forcible felony where the victim was the opposing party in the proceedings.
|
| |
| | A BILL FOR |
|
|
| | HB1520 | | LRB099 09139 HEP 29336 b |
|
|
1 | | AN ACT concerning civil law.
|
2 | | Be it enacted by the People of the State of Illinois,
|
3 | | represented in the General Assembly:
|
4 | | Section 5. The Illinois Marriage and Dissolution of |
5 | | Marriage Act is amended by changing Section 503 as follows:
|
6 | | (750 ILCS 5/503) (from Ch. 40, par. 503)
|
7 | | Sec. 503. Disposition of property.
|
8 | | (a) For purposes of this Act, "marital property" means all |
9 | | property acquired
by either spouse subsequent to the marriage, |
10 | | except the following, which is
known as "non-marital property":
|
11 | | (1) property acquired by gift, legacy or descent;
|
12 | | (2) property acquired in exchange for property |
13 | | acquired before the
marriage or in exchange for property |
14 | | acquired by gift, legacy or descent;
|
15 | | (3) property acquired by a spouse after a judgment of |
16 | | legal separation;
|
17 | | (4) property excluded by valid agreement of the |
18 | | parties;
|
19 | | (5) any judgment or property obtained by judgment |
20 | | awarded to a spouse
from the other spouse;
|
21 | | (6) property acquired before the marriage;
|
22 | | (7) the increase in value of property acquired by a |
23 | | method listed in
paragraphs (1) through (6) of this |
|
| | HB1520 | - 2 - | LRB099 09139 HEP 29336 b |
|
|
1 | | subsection, irrespective of whether the
increase results |
2 | | from a contribution of marital property, non-marital |
3 | | property,
the personal effort of a spouse, or otherwise, |
4 | | subject to the right of
reimbursement provided in |
5 | | subsection (c) of this Section; and
|
6 | | (8) income from property acquired by a method listed in |
7 | | paragraphs (1)
through (7) of this subsection if the income |
8 | | is not attributable to the
personal effort of a spouse.
|
9 | | (b)(1) For purposes of distribution of property pursuant to |
10 | | this
Section, all property acquired by either spouse after the |
11 | | marriage and before a
judgment of dissolution of marriage or |
12 | | declaration of invalidity of marriage,
including non-marital |
13 | | property transferred into some form of co-ownership
between the |
14 | | spouses, is presumed to be marital property, regardless of |
15 | | whether
title is held individually or by the spouses in some |
16 | | form of co-ownership such
as joint tenancy, tenancy in common, |
17 | | tenancy by the entirety, or community
property. The presumption |
18 | | of marital property is overcome by a showing that
the property |
19 | | was acquired by a method listed in subsection (a) of this |
20 | | Section.
|
21 | | (2) For purposes of distribution of property pursuant to |
22 | | this Section,
all pension benefits (including pension benefits |
23 | | under the Illinois Pension
Code) acquired by either spouse |
24 | | after the marriage and before a judgment of
dissolution of |
25 | | marriage or declaration of invalidity of the marriage are
|
26 | | presumed to be marital property, regardless of which spouse |
|
| | HB1520 | - 3 - | LRB099 09139 HEP 29336 b |
|
|
1 | | participates in the
pension plan. The presumption that these |
2 | | pension benefits are marital property
is overcome by a showing |
3 | | that the pension benefits were acquired by a method
listed in |
4 | | subsection (a) of this Section. The right to a division of |
5 | | pension
benefits in just proportions under this Section is |
6 | | enforceable under Section
1-119 of the Illinois Pension Code.
|
7 | | The value of pension benefits in a retirement system |
8 | | subject to the Illinois
Pension Code shall be determined in |
9 | | accordance with the valuation procedures
established by the |
10 | | retirement system.
|
11 | | The recognition of pension benefits as marital property and |
12 | | the division of
those benefits pursuant to a Qualified Illinois |
13 | | Domestic Relations Order shall
not be deemed to be a |
14 | | diminishment, alienation, or impairment of those
benefits. The |
15 | | division of pension benefits is an allocation of property in
|
16 | | which each spouse has a species of common ownership.
|
17 | | (3) For purposes of distribution of property under this |
18 | | Section, all stock
options granted to either spouse after the |
19 | | marriage and before a judgment of
dissolution of marriage or |
20 | | declaration of invalidity of marriage, whether
vested or |
21 | | non-vested or whether their value is ascertainable, are |
22 | | presumed to
be marital property. This presumption of marital |
23 | | property is overcome by a
showing that the stock options were |
24 | | acquired by a method listed in subsection
(a) of this Section. |
25 | | The court shall allocate stock options between the
parties at |
26 | | the time of the judgment of dissolution of marriage or |
|
| | HB1520 | - 4 - | LRB099 09139 HEP 29336 b |
|
|
1 | | declaration
of invalidity of marriage recognizing that the |
2 | | value of the stock options may
not be then determinable and |
3 | | that the actual division of the options may not
occur until a |
4 | | future date. In making the allocation between the parties, the
|
5 | | court shall consider, in addition to the factors set forth in |
6 | | subsection (d) of
this Section, the following:
|
7 | | (i) All circumstances underlying the grant of the stock |
8 | | option including
but not limited to whether the grant was |
9 | | for past, present, or future efforts,
or any combination |
10 | | thereof.
|
11 | | (ii) The length of time from the grant of the option to |
12 | | the time the
option is exercisable.
|
13 | | (b-5) As to any policy of life insurance insuring the life |
14 | | of either spouse, or any interest in such policy, that |
15 | | constitutes marital property, whether whole life, term life, |
16 | | group term life, universal life, or other form of life
|
17 | | insurance policy, and whether or not the value is |
18 | | ascertainable, the court shall allocate ownership, death |
19 | | benefits or the
right to assign death benefits, and the |
20 | | obligation for premium payments, if any, equitably between the |
21 | | parties at the
time of the judgment for dissolution or |
22 | | declaration of invalidity of marriage. |
23 | | (c) Commingled marital and non-marital property shall be |
24 | | treated in
the following manner, unless otherwise agreed by the |
25 | | spouses:
|
26 | | (1) When marital and non-marital property are |
|
| | HB1520 | - 5 - | LRB099 09139 HEP 29336 b |
|
|
1 | | commingled by contributing
one estate of property into |
2 | | another resulting in a loss of identity of the
contributed |
3 | | property, the classification of the contributed property |
4 | | is
transmuted to the estate receiving the contribution, |
5 | | subject to the provisions
of paragraph (2) of this |
6 | | subsection; provided that if marital and non-marital
|
7 | | property are commingled into newly acquired property |
8 | | resulting in a loss
of identity of the contributing |
9 | | estates, the commingled property shall be
deemed |
10 | | transmuted to marital property, subject to the provisions |
11 | | of paragraph
(2) of this subsection.
|
12 | | (2) When one estate of property makes a contribution to |
13 | | another estate
of property, or when a spouse contributes |
14 | | personal effort to non-marital
property, the contributing |
15 | | estate shall be reimbursed from the estate receiving
the |
16 | | contribution notwithstanding any transmutation; provided, |
17 | | that no such
reimbursement shall be made with respect to a |
18 | | contribution which is not
retraceable by clear and |
19 | | convincing evidence, or was a gift, or, in the
case of a |
20 | | contribution of personal effort of a spouse to non-marital |
21 | | property,
unless the effort is significant and results in |
22 | | substantial appreciation
of the non-marital property. |
23 | | Personal effort of a spouse shall be deemed
a contribution |
24 | | by the marital estate. The court may provide for |
25 | | reimbursement
out of the marital property to be divided or |
26 | | by imposing a lien against the
non-marital property which |
|
| | HB1520 | - 6 - | LRB099 09139 HEP 29336 b |
|
|
1 | | received the contribution.
|
2 | | (d) In a proceeding for dissolution of marriage or |
3 | | declaration of invalidity
of marriage, or in a proceeding for |
4 | | disposition of property following
dissolution of marriage by a |
5 | | court which lacked personal jurisdiction over the
absent spouse |
6 | | or lacked jurisdiction to dispose of the property, the court
|
7 | | shall assign each spouse's non-marital property to that spouse. |
8 | | It also shall
divide the marital property without regard to |
9 | | marital misconduct in just
proportions considering all |
10 | | relevant factors, including:
|
11 | | (1) the contribution of each party to the acquisition, |
12 | | preservation, or
increase or decrease in value of the |
13 | | marital or non-marital property, including
(i) any such |
14 | | decrease attributable to a payment deemed to have been an |
15 | | advance from the parties' marital estate under subsection |
16 | | (c-1)(2) of Section 501 and (ii) the contribution of a |
17 | | spouse as a homemaker or to the family unit;
|
18 | | (2) the dissipation by each party of the marital or |
19 | | non-marital property, provided that a party's claim of |
20 | | dissipation is subject to the following conditions:
|
21 | | (i) a notice of intent to claim dissipation shall |
22 | | be given no later than 60 days
before trial or 30 days |
23 | | after discovery closes, whichever is later; |
24 | | (ii) the notice of intent to claim dissipation |
25 | | shall contain, at a minimum, a date or period of time |
26 | | during which the marriage began undergoing an |
|
| | HB1520 | - 7 - | LRB099 09139 HEP 29336 b |
|
|
1 | | irretrievable breakdown, an identification of the |
2 | | property dissipated, and a date or period of time |
3 | | during which the dissipation occurred; |
4 | | (iii) the notice of intent to claim dissipation |
5 | | shall be filed with the clerk of the court and be |
6 | | served pursuant to applicable rules; |
7 | | (iv) no dissipation shall be deemed to have |
8 | | occurred prior to 5 years before the filing of the |
9 | | petition for dissolution of marriage, or 3 years after |
10 | | the party
claiming dissipation knew or should have |
11 | | known of the dissipation; |
12 | | in determining the issue of dissipation, the court may |
13 | | consider a party's conviction for domestic battery under |
14 | | Section 12-3.2 of the Criminal Code of 2012, aggravated |
15 | | domestic battery under Section 12-3.3 of the Criminal Code |
16 | | of 2012, violation of an order of protection under Section |
17 | | 12-3.4 of the Criminal Code of 2012, or any forcible |
18 | | felony, as defined in Section 2-8 of the Criminal Code of |
19 | | 2012, where the victim in the criminal proceeding was the |
20 | | opposing party in the proceeding for dissolution of |
21 | | marriage or declaration of invalidity of marriage;
|
22 | | (3) the value of the property assigned to each spouse;
|
23 | | (4) the duration of the marriage;
|
24 | | (5) the relevant economic circumstances of each spouse |
25 | | when the division
of property is to become effective, |
26 | | including the desirability of awarding
the family home, or |
|
| | HB1520 | - 8 - | LRB099 09139 HEP 29336 b |
|
|
1 | | the right to live therein for reasonable periods, to the
|
2 | | spouse having custody of the children;
|
3 | | (6) any obligations and rights arising from a prior |
4 | | marriage
of either party;
|
5 | | (7) any antenuptial agreement of the parties;
|
6 | | (8) the age, health, station, occupation, amount and |
7 | | sources of income,
vocational skills, employability, |
8 | | estate, liabilities, and needs of each of the
parties;
|
9 | | (9) the custodial provisions for any children;
|
10 | | (10) whether the apportionment is in lieu of or in |
11 | | addition to
maintenance;
|
12 | | (11) the reasonable opportunity of each spouse for |
13 | | future acquisition
of capital assets and income; and
|
14 | | (12) the tax consequences of the property division upon |
15 | | the
respective economic circumstances of the parties.
|
16 | | (e) Each spouse has a species of common ownership in the |
17 | | marital property
which vests at the time dissolution |
18 | | proceedings are commenced and continues
only during the |
19 | | pendency of the action. Any such interest in marital property
|
20 | | shall not encumber that property so as to restrict its |
21 | | transfer, assignment
or conveyance by the title holder unless |
22 | | such title holder is specifically
enjoined from making such |
23 | | transfer, assignment or conveyance.
|
24 | | (f) In a proceeding for dissolution of marriage or |
25 | | declaration of
invalidity of marriage or in a proceeding for |
26 | | disposition of property
following dissolution of marriage by a |
|
| | HB1520 | - 9 - | LRB099 09139 HEP 29336 b |
|
|
1 | | court that lacked personal
jurisdiction over the absent spouse |
2 | | or lacked jurisdiction to dispose of
the property, the court, |
3 | | in determining the value of the marital and
non-marital |
4 | | property for purposes of dividing the property, shall value the
|
5 | | property as of the date of trial or some other date as close to |
6 | | the date
of trial as is practicable.
|
7 | | (g) The court if necessary to protect and promote the best |
8 | | interests of the
children may set aside a portion of the |
9 | | jointly or separately held
estates of the parties in a separate |
10 | | fund or trust for the support,
maintenance, education, physical |
11 | | and mental health, and general welfare of any minor, dependent,
|
12 | | or incompetent child of the parties. In making a determination |
13 | | under this
subsection, the court may consider, among other |
14 | | things, the conviction of a
party of any of the offenses set |
15 | | forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, |
16 | | 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, |
17 | | 12-15, or 12-16, or Section 12-3.05 except for subdivision |
18 | | (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal |
19 | | Code of 2012 if the
victim is a
child of one or both of the |
20 | | parties, and there is a need for, and cost of,
care, healing |
21 | | and counseling for the child who is the victim of the crime.
|
22 | | (h) Unless specifically directed by a reviewing court, or |
23 | | upon good
cause shown, the court shall not on remand consider |
24 | | any increase or
decrease in the value of any "marital" or |
25 | | "non-marital" property occurring
since the assessment of such |
26 | | property at the original trial or hearing, but
shall use only |
|
| | HB1520 | - 10 - | LRB099 09139 HEP 29336 b |
|
|
1 | | that assessment made at the original trial or hearing.
|
2 | | (i) The court may make such judgments affecting the marital |
3 | | property
as may be just and may enforce such judgments by |
4 | | ordering a sale of marital
property, with proceeds therefrom to |
5 | | be applied as determined by the court.
|
6 | | (j) After proofs have closed in the final hearing on all |
7 | | other issues
between the parties (or in conjunction with the |
8 | | final hearing, if all parties
so stipulate) and before judgment |
9 | | is entered, a party's petition for
contribution to fees and |
10 | | costs incurred in the proceeding shall be heard and
decided, in |
11 | | accordance with the following provisions:
|
12 | | (1) A petition for contribution, if not filed before |
13 | | the final hearing
on other issues between the parties, |
14 | | shall be filed no later than 30 days after
the closing of |
15 | | proofs in the final hearing or within such other period as |
16 | | the
court orders.
|
17 | | (2) Any award of contribution to one party from the |
18 | | other party shall be
based on the criteria for division of |
19 | | marital property under this Section 503
and, if maintenance |
20 | | has been awarded, on the criteria for an award of
|
21 | | maintenance under Section 504.
|
22 | | (3) The filing of a petition for contribution shall not |
23 | | be deemed to
constitute a waiver of the attorney-client |
24 | | privilege between the petitioning
party and current or |
25 | | former counsel; and such a waiver shall not constitute a
|
26 | | prerequisite to a hearing for contribution. If either |
|
| | HB1520 | - 11 - | LRB099 09139 HEP 29336 b |
|
|
1 | | party's presentation on
contribution, however, includes |
2 | | evidence within the scope of the
attorney-client |
3 | | privilege, the disclosure or disclosures shall be narrowly
|
4 | | construed and shall not be deemed by the court to |
5 | | constitute a general waiver
of the privilege as to matters |
6 | | beyond the scope of the presentation.
|
7 | | (4) No finding on which a contribution award is based |
8 | | or denied shall be
asserted against counsel or former |
9 | | counsel for purposes of any hearing under
subsection (c) or |
10 | | (e) of Section 508.
|
11 | | (5) A contribution award (payable to either the |
12 | | petitioning
party or the party's counsel, or jointly, as |
13 | | the court determines) may be in
the form of either a set |
14 | | dollar amount or a percentage of fees and costs (or a
|
15 | | portion of fees and costs) to be subsequently agreed upon |
16 | | by the petitioning
party and counsel or, alternatively, |
17 | | thereafter determined in a hearing
pursuant to subsection |
18 | | (c) of Section 508 or previously or thereafter
determined |
19 | | in an independent proceeding under subsection (e) of |
20 | | Section
508.
|
21 | | (6) The changes to this Section 503 made by this |
22 | | amendatory Act of 1996
apply to cases pending on or after |
23 | | June 1, 1997, except as otherwise provided
in Section 508.
|
24 | | (k) The changes made to this Section by Public Act 97-941 |
25 | | this amendatory Act of the 97th General Assembly apply only to |
26 | | petitions for dissolution of marriage filed on or after January |
|
| | HB1520 | - 12 - | LRB099 09139 HEP 29336 b |
|
|
1 | | 1, 2013 ( the effective date of Public Act 97-941) this |
2 | | amendatory Act of the 97th General Assembly . |
3 | | (Source: P.A. 96-583, eff. 1-1-10; 96-1551, Article 1, Section |
4 | | 985, eff. 7-1-11; 96-1551, Article 2, Section 1100, eff. |
5 | | 7-1-11; 97-608, eff. 1-1-12; 97-941, eff. 1-1-13; 97-1109, eff. |
6 | | 1-1-13; 97-1150, eff. 1-25-13; revised 12-10-14.)
|