HB0236 100TH GENERAL ASSEMBLY

LRB100 04181 HEP 14187 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB0236

Introduced , by Rep. La Shawn K. Ford

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-12.5 new
750 ILCS 5/510	from Ch. 40, par. 510

Amends the Illinois Public Aid Code, the Unified Code of Corrections, and the Illinois Marriage and Dissolution of Marriage Act. Provides that subject to federal approval, a person's obligation to pay child support pursuant to a court or administrative order is suspended by operation of law during any period that the person is committed to the custody of the Department of Corrections or the Department of Juvenile Justice. Provides that the Department of Corrections and the Department of Juvenile Justice shall share relevant data and collaborate to establish programs to assist committed persons who are obligors under child support orders in cases in which child support enforcement services are provided by the Department of Healthcare and Family Services. Provides for inclusion of information about any child support obligation owed by the defendant and recommendations concerning the payment of that obligation in a presentence report; requires a presentence investigation and report in the case of a misdemeanor defendant who owes a child support obligation.

A BILL FOR

AN ACT concerning public aid.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Public Aid Code is amended by adding Section 10-12.5 as follows:

(305 ILCS 5/10-12.5 new)

Sec. 10-12.5. Suspension of child support during a period of incarceration.

(a) During any period of time in which an obligor is committed to the custody of the Department of Corrections or the Department of Juvenile Justice, subject to federal approval, an obligation to pay child support is suspended by operation of law, but not until 60 days after the obligee receives notice and an opportunity to request a termination or modification of the suspension of the support obligation in accordance with subsection (c) of this Section. If the obligee requests that the suspension or prohibition of the support obligation be terminated or modified and the court terminates or modifies the suspension of the support obligation, or if the parties have otherwise agreed in a written agreement set forth in a court or administrative order for support, then the child support obligation shall not be suspended and if the obligor wishes to obtain a modification, he or she must petition for a modification of support in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act. The Department may provide, by rule, for notice to the obligee describing the obligee's rights regarding a prospective modification in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act.

If an obligor receives a settlement, claim, inheritance, lottery prize award, or other lump sum or periodic income of $500 or more a month or $5,000 or more as a one-time lump sum, during a period in which his or her child support obligation is suspended pursuant to this Code, the obligor shall notify the obligee, and in IV-D cases also notify the Department, within 7 days of receiving or becoming aware that he or she is entitled to receive this income. If the obligee wishes to obtain a modification based on this income, he or she must petition for a modification of support in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act.

(b) Any period of incarceration of obligor shall not be considered a period of voluntary unemployment. In the case of an incarcerated parent obligated to pay child support greater than $0 whose period of incarceration is greater than one year and whose period of incarceration begins on or after January 1, 2018, the Department shall:

(1) temporarily suspend any support obligation of the obligor and the enforcement of any support obligation of the obligor existing prior to the period of incarceration; and

(2) temporarily prohibit the accrual of any interest on any support obligation of the obligor existing prior to the period of incarceration during the incarceration.

The temporary suspension of the child support obligation and of the accrual of interest on any support obligation of the obligor existing prior to the period of incarceration shall end and both support and accrual of interest on any pre-existing unpaid obligation shall resume upon the first charging period to occur after the obligor's release from incarceration. Unless the terms of the support obligation have been otherwise modified, the support terms shall resume at the same level as prior to the temporary suspension.

(c) If the Department is advised or given notice of the obligor's incarceration for a period to exceed one year beginning after January 1, 2018, the Department, for cases enrolled in the Child Support Enforcement Program established by Title IV-D of the Social Security Act, or the obligor parent or his or her representative in all other cases, shall provide both parties with:

(1) notice of any suspension or review, adjustment, or enforcement of a support obligation and of any prohibition on interest accrual on such obligation that is imposed in accordance with paragraphs (1) and (2) of subsection (b); and

(2) an opportunity to request that the suspension or prohibition be terminated or modified on the basis that the obligor has sufficient income or resources to continue payment of the support obligation during the obligor's period of incarceration.

(d) The Department shall not be liable for failing to act upon the provisions established under paragraphs (1) and (2) of subsection (b) if the Department has not been advised of the obligor's incarceration or if the Department has in place proper procedures for considering an obligor's incarceration when setting and modifying child support obligations and follows those procedures routinely.

(e) The Department of Healthcare and Family Services and the Department of Corrections shall share relevant data and collaborate on the facilitation of identification of incarcerated obligors eligible for either temporary suspension of a child support obligation or modification of a child support obligation and shall provide relevant information and assistance to incarcerated obligors eligible for modification of support.

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Section 510 as follows:

(750 ILCS 5/510) (from Ch. 40, par. 510)

(Text of Section before amendment by P.A. 99-764)

Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.

(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. An order for child support may be modified as follows:

(1) upon a showing of a substantial change in circumstances; and

(2) without the necessity of showing a substantial change in circumstances, as follows:

(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or

(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child's health care needs.

The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child support enforcement services from the Department of Healthcare and Family Services under Article X of the Illinois Public Aid Code, and only when at least 36 months have elapsed since the order for child support was entered or last modified.

(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

(9) any other factor that the court expressly finds to be just and equitable.

(a-6) In a review under subsection (b-4.5) of Section 504 of this Act, the court may enter a fixed-term maintenance award that bars future maintenance only if, at the time of the entry of the award, the marriage had lasted 10 years or less at the time the original action was commenced.

(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.

(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. A payor's obligation to pay maintenance or unallocated maintenance terminates by operation of law on the date the recipient remarries or the date the court finds cohabitation began. The payor is entitled to reimbursement for all maintenance paid from that date forward. Any termination of an obligation for maintenance as a result of the death of the payor party, however, shall be inapplicable to any right of the other party or such other party's designee to receive a death benefit under such insurance on the payor party's life. A party receiving maintenance must advise the payor of his or her intention to marry at least 30 days before the remarriage, unless the decision is made within this time period. In that event, he or she must notify the other party within 72 hours of getting married.

(c-5) In an adjudicated case, the court shall make specific factual findings as to the reason for the modification as well as the amount, nature, and duration of the modified maintenance award.

(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.

(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.

(f) A petition to modify or terminate child support or allocation of parental responsibilities shall not delay any child support enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited to, a petition for a rule to show cause, for non-wage garnishment, or for a restraining order.

(Source: P.A. 99-90, eff. 1-1-16.)

(Text of Section after amendment by P.A. 99-764)

Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.

(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. An order for child support may be modified as follows:

(1) upon a showing of a substantial change in circumstances, including, subject to federal approval, incarceration prior to January 1, 2018 or for a period of incarceration of less than one year; and

(2) without the necessity of showing a substantial change in circumstances, as follows:

(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or

(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child's health care needs.

The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child support enforcement services from the Department of Healthcare and Family Services under Article X of the Illinois Public Aid Code, and only when at least 36 months have elapsed since the order for child support was entered or last modified.

The court may grant a petition for modification that seeks to apply the changes made to subsection (a) of Section 505 by Public Act 99-764 this amendatory Act of the 99th General Assembly to an order entered before the effective date of Public Act 99-764 this amendatory Act of the 99th General Assembly only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of Public Act 99-764 this amendatory Act of the 99th General Assembly itself does not constitute a substantial change in circumstances warranting a modification.

(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

(9) any other factor that the court expressly finds to be just and equitable.

(a-6) In a review under subsection (b-4.5) of Section 504 of this Act, the court may enter a fixed-term maintenance award that bars future maintenance only if, at the time of the entry of the award, the marriage had lasted 10 years or less at the time the original action was commenced.

(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.

(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. A payor's obligation to pay maintenance or unallocated maintenance terminates by operation of law on the date the recipient remarries or the date the court finds cohabitation began. The payor is entitled to reimbursement for all maintenance paid from that date forward. Any termination of an obligation for maintenance as a result of the death of the payor party, however, shall be inapplicable to any right of the other party or such other party's designee to receive a death benefit under such insurance on the payor party's life. A party receiving maintenance must advise the payor of his or her intention to marry at least 30 days before the remarriage, unless the decision is made within this time period. In that event, he or she must notify the other party within 72 hours of getting married.

(c-5) In an adjudicated case, the court shall make specific factual findings as to the reason for the modification as well as the amount, nature, and duration of the modified maintenance award.

(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.

(d-5) During any period of time in which the obligor is committed to the custody of the Department of Corrections or the Department of Juvenile Justice, subject to federal approval, an obligation to pay child support is suspended by operation of law, but not until 60 days after the obligee receives notice and an opportunity to request a termination or modification of the suspension of the support obligation in accordance with subsection (d-7) of this Section. If the obligee requests that the suspension or prohibition of the support obligation be terminated or modified and the court terminates or modifies the suspension of the support obligation, or if the parties have otherwise agreed in a written agreement set forth in the judgment or otherwise approved by the court, then the child support obligation shall not be suspended and if the obligor wishes to obtain a modification, he or she must petition for a modification of support in accordance with this Section. The Department of Healthcare and Family Services may provide, by rule, for notice to the obligee describing the obligee's rights regarding a prospective modification in accordance with this Section.

If an obligor receives a settlement, claim, inheritance, lottery prize award, or other lump sum or periodic income of $500 or more a month or $5,000 or more as a one-time lump sum, during a period in which his or her child support obligation is suspended pursuant to Section 10-12.5 of the Illinois Public Aid Code, the obligor shall notify the obligee, and in IV-D cases also notify the Department of Healthcare and Family Services, within 7 days of receiving or becoming aware that he or she is entitled to receive this income. If the obligee wishes to obtain a modification based on this income, he or she must petition for a modification of support in accordance with this Section.

(d-6) The State shall not consider any period of incarceration of an obligor as a period of voluntary unemployment that disqualifies the parent from obtaining a modification of the support obligation consistent with the obligor's ability to pay child support. In the case of an incarcerated obligor, the State shall, subject to federal approval:

(1) temporarily suspend any support obligation of the obligor and the enforcement of any support obligation of the obligor existing prior to the period of incarceration; and

(2) temporarily prohibit the accrual of any interest on any support obligation of the obligor existing prior to the period of incarceration during the incarceration.

(d-7) The Department of Healthcare and Family Services, for cases enrolled in the Child Support Enforcement Program established by Title IV-D of the Social Security Act, or the obligor or his or her representative in all other cases, shall provide the obligee with:

(1) notice of any suspension or review, adjustment, or enforcement of a support obligation and notice of any prohibition on the accrual of interest on the support obligation that is imposed in accordance with paragraphs (1) and (2) of subsection (d-6); and

(2) an opportunity to request that the suspension or prohibition be terminated or modified on the basis that the obligor has sufficient income or resources to continue payment of the support obligation during the obligor's period of incarceration.

(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.

(f) A petition to modify or terminate child support or allocation of parental responsibilities shall not delay any child support enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited to, a petition for a rule to show cause, for non-wage garnishment, or for a restraining order.

(g) The crime for which the incarcerated obligor was convicted, or the prosecution of the incarcerated obligor for that crime by a legal representative of the Department of Healthcare and Family Services for cases enrolled in the Child Support Enforcement Program established by Title IV-D of the Social Security Act, shall not disqualify the obligor from consideration of modification of a child support obligation, nor shall the action of the Department's legal representative to bring forth the modification request for consideration be considered a conflict of interest for the prosecuting office, except in cases in which the crime was committed to avoid a child support obligation or was committed against a child of the obligor or the obligee.

(Source: P.A. 99-90, eff. 1-1-16; 99-764, eff. 7-1-17; revised 9-8-16.)

Section 95. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.