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1 | AN ACT concerning child support.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Illinois Marriage and Dissolution of | |||||||||||||||||||||||||||||
5 | Marriage Act is amended by changing Section 505 as follows:
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6 | (750 ILCS 5/505) (from Ch. 40, par. 505)
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7 | Sec. 505. Child support; contempt; penalties.
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8 | (a) In a proceeding for dissolution of marriage, legal | |||||||||||||||||||||||||||||
9 | separation,
declaration of invalidity of marriage, a | |||||||||||||||||||||||||||||
10 | proceeding for child support
following dissolution of the | |||||||||||||||||||||||||||||
11 | marriage by a court which lacked personal
jurisdiction over the | |||||||||||||||||||||||||||||
12 | absent spouse, a proceeding for modification of a
previous | |||||||||||||||||||||||||||||
13 | order for child support under Section 510 of this Act, or any
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14 | proceeding authorized under Section 501 or 601 of this Act, the | |||||||||||||||||||||||||||||
15 | court may
order either or both parents owing a duty of support | |||||||||||||||||||||||||||||
16 | to a child of the
marriage to pay an amount reasonable and | |||||||||||||||||||||||||||||
17 | necessary for his support, without
regard to marital | |||||||||||||||||||||||||||||
18 | misconduct. The duty of support owed to a child
includes the | |||||||||||||||||||||||||||||
19 | obligation to provide for the reasonable and necessary
| |||||||||||||||||||||||||||||
20 | physical, mental and emotional health needs of the child.
For | |||||||||||||||||||||||||||||
21 | purposes of this Section, the term "child" shall include any | |||||||||||||||||||||||||||||
22 | child under
age 18 and
any child under age 19 who is still | |||||||||||||||||||||||||||||
23 | attending high school.
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24 | (1) The Court shall determine the minimum amount of | |||||||||||||||||||||||||||||
25 | support by using the
following guidelines:
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2 | (2) The above guidelines shall be applied in each case | ||||||
3 | unless the court
makes a finding that application of the | ||||||
4 | guidelines would be
inappropriate, after considering the | ||||||
5 | best interests of the child in light of
evidence including | ||||||
6 | but not limited to one or more of the following relevant
| ||||||
7 | factors:
| ||||||
8 | (a) the financial resources and needs of the child;
| ||||||
9 | (b) the financial resources and needs of the | ||||||
10 | custodial parent;
| ||||||
11 | (c) the standard of living the child would have | ||||||
12 | enjoyed had the
marriage not been dissolved;
| ||||||
13 | (d) the physical and emotional condition of the | ||||||
14 | child, and his
educational needs; and
| ||||||
15 | (e) the financial resources and needs of the | ||||||
16 | non-custodial parent.
| ||||||
17 | If the court deviates from the guidelines, the court's | ||||||
18 | finding
shall state the amount of support that would have | ||||||
19 | been required under the
guidelines, if determinable. The | ||||||
20 | court shall include the reason or reasons for
the variance | ||||||
21 | from the
guidelines.
| ||||||
22 | (3) "Net income" is defined as the total of all income | ||||||
23 | from all
sources, minus the following deductions:
| ||||||
24 | (a) Federal income tax (properly calculated | ||||||
25 | withholding or estimated
payments);
| ||||||
26 | (b) State income tax (properly calculated | ||||||
27 | withholding or estimated
payments);
| ||||||
28 | (c) Social Security (FICA payments);
| ||||||
29 | (d) Mandatory retirement contributions required by | ||||||
30 | law or as a
condition of employment;
| ||||||
31 | (e) Union dues;
| ||||||
32 | (f) Dependent and individual | ||||||
33 | health/hospitalization insurance premiums;
| ||||||
34 | (g) Prior obligations of support or maintenance | ||||||
35 | actually paid pursuant
to a court order;
| ||||||
36 | (h) Expenditures for repayment of debts that |
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| |||||||
1 | represent reasonable and
necessary expenses for the | ||||||
2 | production of income, medical expenditures
necessary | ||||||
3 | to preserve life or health, reasonable expenditures | ||||||
4 | for the
benefit of the child and the other parent, | ||||||
5 | exclusive of gifts. The court
shall reduce net income | ||||||
6 | in determining the minimum amount of support to be
| ||||||
7 | ordered only for the period that such payments are due | ||||||
8 | and shall enter an
order containing provisions for its | ||||||
9 | self-executing modification upon
termination of such | ||||||
10 | payment period.
| ||||||
11 | (4) In cases where the court order provides for
| ||||||
12 | health/hospitalization insurance coverage pursuant to | ||||||
13 | Section 505.2 of
this Act, the premiums for that insurance, | ||||||
14 | or that portion of the premiums
for which the supporting | ||||||
15 | party is responsible in the case of insurance
provided | ||||||
16 | through an employer's health insurance plan where
the | ||||||
17 | employer pays a portion of the premiums, shall be | ||||||
18 | subtracted
from net income in determining the minimum | ||||||
19 | amount of support to be ordered.
| ||||||
20 | (4.5) In a proceeding for child support following | ||||||
21 | dissolution of the
marriage by a court that lacked personal | ||||||
22 | jurisdiction over the absent spouse,
and in which the court | ||||||
23 | is requiring payment of support for the period before
the | ||||||
24 | date an order for current support is entered, there is a | ||||||
25 | rebuttable
presumption
that the supporting party's net | ||||||
26 | income for the prior period was the same as his
or her net | ||||||
27 | income at the time the order for current support is | ||||||
28 | entered.
| ||||||
29 | (5) If the net income cannot be determined because of | ||||||
30 | default or any
other reason, the court shall order support | ||||||
31 | in an amount considered
reasonable in the particular case. | ||||||
32 | The final order in all cases shall
state the support level | ||||||
33 | in dollar amounts.
However, if the
court finds that the | ||||||
34 | child support amount cannot be expressed exclusively as a
| ||||||
35 | dollar amount because all or a portion of the payor's net | ||||||
36 | income is uncertain
as to source, time of payment, or |
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| |||||||
1 | amount, the court may order a percentage
amount of support | ||||||
2 | in addition to a specific dollar amount and enter
such | ||||||
3 | other orders as may be necessary to determine and enforce, | ||||||
4 | on a timely
basis, the applicable support ordered.
| ||||||
5 | (6) If (i) the non-custodial parent was properly served | ||||||
6 | with a request
for
discovery of financial information | ||||||
7 | relating to the non-custodial parent's
ability to
provide | ||||||
8 | child support, (ii) the non-custodial parent failed to | ||||||
9 | comply with the
request,
despite having been ordered to do | ||||||
10 | so by the court, and (iii) the non-custodial
parent is not | ||||||
11 | present at the hearing to determine support despite having
| ||||||
12 | received
proper notice, then any relevant financial | ||||||
13 | information concerning the
non-custodial parent's ability | ||||||
14 | to provide child support that was obtained
pursuant to
| ||||||
15 | subpoena and proper notice shall be admitted into evidence | ||||||
16 | without the need to
establish any further foundation for | ||||||
17 | its admission.
| ||||||
18 | (a-5) In an action to enforce an order for support based on | ||||||
19 | the
respondent's failure
to make support payments as required | ||||||
20 | by the order, notice of proceedings to
hold the respondent in | ||||||
21 | contempt for that failure may be served on the
respondent by | ||||||
22 | personal service or by regular mail addressed to the | ||||||
23 | respondent's
last known address. The respondent's last known | ||||||
24 | address may be determined from
records of the clerk of the | ||||||
25 | court, from the Federal Case Registry of Child
Support Orders, | ||||||
26 | or by any other reasonable means.
| ||||||
27 | (b) Failure of either parent to comply with an order to pay | ||||||
28 | support shall
be punishable as in other cases of contempt. In | ||||||
29 | addition to other
penalties provided by law the Court may, | ||||||
30 | after finding the parent guilty
of contempt, order that the | ||||||
31 | parent be:
| ||||||
32 | (1) placed on probation with such conditions of | ||||||
33 | probation as the Court
deems advisable;
| ||||||
34 | (2) sentenced to periodic imprisonment for a period not | ||||||
35 | to exceed 6
months; provided, however, that the Court may | ||||||
36 | permit the parent to be
released for periods of time during |
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1 | the day or night to:
| ||||||
2 | (A) work; or
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3 | (B) conduct a business or other self-employed | ||||||
4 | occupation.
| ||||||
5 | The Court may further order any part or all of the earnings | ||||||
6 | of a parent
during a sentence of periodic imprisonment paid to | ||||||
7 | the Clerk of the Circuit
Court or to the parent having custody | ||||||
8 | or to the guardian having custody
of the children of the | ||||||
9 | sentenced parent for the support of said
children until further | ||||||
10 | order of the Court.
| ||||||
11 | If there is a unity of interest and ownership sufficient to | ||||||
12 | render no
financial separation between a non-custodial parent | ||||||
13 | and another person or
persons or business entity, the court may | ||||||
14 | pierce the ownership veil of the
person, persons, or business | ||||||
15 | entity to discover assets of the non-custodial
parent held in | ||||||
16 | the name of that person, those persons, or that business | ||||||
17 | entity.
The following circumstances are sufficient to | ||||||
18 | authorize a court to order
discovery of the assets of a person, | ||||||
19 | persons, or business entity and to compel
the application of | ||||||
20 | any discovered assets toward payment on the judgment for
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21 | support:
| ||||||
22 | (1) the non-custodial parent and the person, persons, | ||||||
23 | or business entity
maintain records together.
| ||||||
24 | (2) the non-custodial parent and the person, persons, | ||||||
25 | or business entity
fail to maintain an arms length | ||||||
26 | relationship between themselves with regard to
any assets.
| ||||||
27 | (3) the non-custodial parent transfers assets to the | ||||||
28 | person, persons,
or business entity with the intent to | ||||||
29 | perpetrate a fraud on the custodial
parent.
| ||||||
30 | With respect to assets which
are real property, no order | ||||||
31 | entered under this paragraph shall affect the
rights of bona | ||||||
32 | fide purchasers, mortgagees, judgment creditors, or other lien
| ||||||
33 | holders who acquire their interests in the property prior to | ||||||
34 | the time a notice
of lis pendens pursuant to the Code of Civil | ||||||
35 | Procedure or a copy of the order
is placed of record in the | ||||||
36 | office of the recorder of deeds for the county in
which the |
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1 | real property is located.
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2 | The court may also order in cases where the parent is 90 | ||||||
3 | days or more
delinquent in payment of support or has been | ||||||
4 | adjudicated in arrears in an
amount equal to 90 days obligation | ||||||
5 | or more, that the parent's Illinois driving
privileges be | ||||||
6 | suspended until the court
determines that the parent is in | ||||||
7 | compliance with the order of support.
The court may also order | ||||||
8 | that the parent be issued a family financial
responsibility | ||||||
9 | driving permit that would allow limited driving privileges for
| ||||||
10 | employment and medical purposes in accordance with Section | ||||||
11 | 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit | ||||||
12 | court shall certify the order
suspending the driving privileges | ||||||
13 | of the parent or granting the issuance of a
family financial | ||||||
14 | responsibility driving permit to the Secretary of State on
| ||||||
15 | forms prescribed by the Secretary. Upon receipt of the | ||||||
16 | authenticated
documents, the Secretary of State shall suspend | ||||||
17 | the parent's driving privileges
until further order of the | ||||||
18 | court and shall, if ordered by the court, subject to
the | ||||||
19 | provisions of Section 7-702.1 of the Illinois Vehicle Code, | ||||||
20 | issue a family
financial responsibility driving permit to the | ||||||
21 | parent.
| ||||||
22 | In addition to the penalties or punishment that may be | ||||||
23 | imposed under this
Section, any person whose conduct | ||||||
24 | constitutes a violation of Section 15 of the
Non-Support | ||||||
25 | Punishment Act may be prosecuted under that Act, and a person
| ||||||
26 | convicted under that Act may be sentenced in accordance with | ||||||
27 | that Act. The
sentence may include but need not be limited to a | ||||||
28 | requirement that the person
perform community service under | ||||||
29 | Section 50 of that Act or participate in a work
alternative | ||||||
30 | program under Section 50 of that Act. A person may not be | ||||||
31 | required
to participate in a work alternative program under | ||||||
32 | Section 50 of that Act if
the person is currently participating | ||||||
33 | in a work program pursuant to Section
505.1 of this Act.
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34 | A child support installment that becomes due based upon the | ||||||
35 | payment frequency as ordered shall be considered a separate and | ||||||
36 | distinct judgment pursuant to subsection (d) of Section 505 of |
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1 | this Act and subsection (c) of Section 14 of the Illinois | ||||||
2 | Parentage Act of 1984. If the judgment remains unpaid for 30 | ||||||
3 | days after the date due, simple interest shall begin to accrue | ||||||
4 | daily on a per diem basis at the rate of 9% per annum for each | ||||||
5 | day beyond the 30 day grace period.
| ||||||
6 | The per diem interest shall be determined by multiplying | ||||||
7 | the annual rate by the amount of the judgment unsatisfied and | ||||||
8 | dividing that amount by 365. The per diem interest is to be | ||||||
9 | modified when the judgment itself has been reduced. The per | ||||||
10 | diem interest continues to accrue until the judgment itself is | ||||||
11 | satisfied.
| ||||||
12 | Each child support payment made within a single installment | ||||||
13 | period is to be credited first to the current support | ||||||
14 | installment due with any excess or subsequent payment during | ||||||
15 | the same installment period being credited to past due support. | ||||||
16 | The distribution of any payments are not controlled by this | ||||||
17 | Act.
| ||||||
18 | Each payment that is to be credited to the amount of past | ||||||
19 | due child support is to be applied first to the accrued per | ||||||
20 | diem interest of the oldest remaining unsatisfied installment | ||||||
21 | judgment with any remaining portion of the payment to be | ||||||
22 | applied to the oldest unsatisfied judgment itself.
| ||||||
23 | A child support obligation, or any portion of a child | ||||||
24 | support obligation, which becomes
due and remains unpaid for 30 | ||||||
25 | days or more shall accrue simple interest at
the rate of 9% per | ||||||
26 | annum.
An order for support entered or modified on or after | ||||||
27 | January 1, 2002 shall
contain a statement that a child support | ||||||
28 | obligation required under the order, or any
portion of a | ||||||
29 | support obligation required under the order, that becomes due | ||||||
30 | and
remains unpaid for 30 days or more shall accrue simple | ||||||
31 | interest at the rate of
9% per annum. Failure to include the | ||||||
32 | statement in the order for support does
not affect the validity | ||||||
33 | of the order or the accrual of interest as provided in
this | ||||||
34 | Section.
| ||||||
35 | (c) A one-time charge of 20% is imposable upon the amount | ||||||
36 | of
past-due child support owed on July 1, 1988 which has |
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1 | accrued under a
support order entered by the court. The charge | ||||||
2 | shall be imposed in
accordance with the provisions of Section | ||||||
3 | 10-21 of the Illinois Public Aid
Code and shall be enforced by | ||||||
4 | the court upon petition.
| ||||||
5 | (d) Any new or existing support order entered by the court
| ||||||
6 | under this Section shall be deemed to be a series of judgments | ||||||
7 | against the
person obligated to pay support thereunder, each | ||||||
8 | such judgment to be in the
amount of each payment or | ||||||
9 | installment of support and each such judgment to
be deemed | ||||||
10 | entered as of the date the corresponding payment or installment
| ||||||
11 | becomes due under the terms of the support order. Each such | ||||||
12 | judgment shall
have the full force, effect and attributes of | ||||||
13 | any other judgment of this
State, including the ability to be | ||||||
14 | enforced.
A lien arises by operation of law against the real | ||||||
15 | and personal property of
the noncustodial parent for each | ||||||
16 | installment of overdue support owed by the
noncustodial parent.
| ||||||
17 | (e) When child support is to be paid through the clerk of | ||||||
18 | the court in a
county of 1,000,000 inhabitants or less, the | ||||||
19 | order shall direct the obligor
to pay to the clerk, in addition | ||||||
20 | to the child support payments, all fees
imposed by the county | ||||||
21 | board under paragraph (3) of subsection (u) of
Section 27.1 of | ||||||
22 | the Clerks of Courts Act. Unless paid in cash or pursuant to
an | ||||||
23 | order for withholding, the payment of the fee shall be by a | ||||||
24 | separate
instrument from the support payment and shall be made | ||||||
25 | to the order of the
Clerk.
| ||||||
26 | (f) All orders for support, when entered or
modified, shall | ||||||
27 | include a provision requiring the obligor to notify
the court | ||||||
28 | and, in cases in which a party is receiving child and spouse
| ||||||
29 | services under Article X of the Illinois Public Aid Code, the
| ||||||
30 | Illinois Department of Public Aid, within 7 days, (i) of the | ||||||
31 | name and address
of any new employer of the obligor, (ii) | ||||||
32 | whether the obligor has access to
health insurance coverage | ||||||
33 | through the employer or other group coverage and,
if so, the | ||||||
34 | policy name and number and the names of persons covered under
| ||||||
35 | the policy, and (iii) of any new residential or mailing address | ||||||
36 | or telephone
number of the non-custodial parent. In any |
| |||||||
| |||||||
1 | subsequent action to enforce a
support order, upon a sufficient | ||||||
2 | showing that a diligent effort has been made
to ascertain the | ||||||
3 | location of the non-custodial parent, service of process or
| ||||||
4 | provision of notice necessary in the case may be made at the | ||||||
5 | last known
address of the non-custodial parent in any manner | ||||||
6 | expressly provided by the
Code of Civil Procedure or this Act, | ||||||
7 | which service shall be sufficient for
purposes of due process.
| ||||||
8 | (g) An order for support shall include a date on which the | ||||||
9 | current
support obligation terminates. The termination date | ||||||
10 | shall be no earlier than
the date on which the child covered by | ||||||
11 | the order will attain the age of
18. However, if the child will | ||||||
12 | not graduate from high school until after
attaining the age of | ||||||
13 | 18, then the termination date shall be no earlier than the
| ||||||
14 | earlier of the date on which the child's high school graduation | ||||||
15 | will occur or
the date on which the child will attain the age | ||||||
16 | of 19. The order for support
shall state that the termination | ||||||
17 | date does not apply to any arrearage that may
remain unpaid on | ||||||
18 | that date. Nothing in this subsection shall be construed to
| ||||||
19 | prevent the court from modifying the order or terminating the | ||||||
20 | order in the
event the child is otherwise emancipated.
| ||||||
21 | (h) An order entered under this Section shall include a | ||||||
22 | provision requiring
the obligor to report to the obligee and to | ||||||
23 | the clerk of court within 10 days
each time the obligor obtains | ||||||
24 | new employment, and each time the obligor's
employment is | ||||||
25 | terminated for any reason. The report shall be in writing and
| ||||||
26 | shall, in the case of new employment, include the name and | ||||||
27 | address of the new
employer. Failure to report new employment | ||||||
28 | or the termination of current
employment, if coupled with | ||||||
29 | nonpayment of support for a period in excess of 60
days, is | ||||||
30 | indirect criminal contempt. For any obligor arrested for | ||||||
31 | failure to
report new employment bond shall be set in the | ||||||
32 | amount of the child support that
should have been paid during | ||||||
33 | the period of unreported employment. An order
entered under | ||||||
34 | this Section shall also include a provision requiring the | ||||||
35 | obligor
and obligee parents to advise each other of a change in | ||||||
36 | residence within 5 days
of the change except when the court |
| |||||||
| |||||||
1 | finds that the physical, mental, or
emotional health of a party | ||||||
2 | or that of a child, or both, would be
seriously endangered by | ||||||
3 | disclosure of the party's address.
| ||||||
4 | (i) The court does not lose the powers of contempt, | ||||||
5 | driver's license
suspension, or other child support | ||||||
6 | enforcement mechanisms, including, but
not limited to, | ||||||
7 | criminal prosecution as set forth in this Act, upon the
| ||||||
8 | emancipation of the minor child or children.
| ||||||
9 | (Source: P.A. 92-16, eff. 6-28-01; 92-203, eff. 8-1-01; 92-374, | ||||||
10 | eff.
8-15-01; 92-651, eff. 7-11-02; 92-876, eff. 6-1-03; | ||||||
11 | 93-148, eff. 7-10-03.)
| ||||||
12 | Section 10. The Illinois Parentage Act of 1984 is amended | ||||||
13 | by changing Section 20.7 as follows:
| ||||||
14 | (750 ILCS 45/20.7)
| ||||||
15 | Sec. 20.7. Interest on support obligations. A support | ||||||
16 | obligation, or any
portion of a support obligation, which | ||||||
17 | becomes due and remains unpaid for 30
days or more shall accrue | ||||||
18 | simple interest at the rate of 9% per annum.
A child support | ||||||
19 | installment that becomes due based upon the payment frequency | ||||||
20 | as ordered shall be considered a separate and distinct judgment | ||||||
21 | pursuant to subsection (d) of Section 505 of the Illinois | ||||||
22 | Marriage and Dissolution of Marriage Act and subsection (c) of | ||||||
23 | Section 14 of this Act. If the judgment remains unpaid for 30 | ||||||
24 | days from the date due, simple interest shall begin to accrue | ||||||
25 | daily on a per diem basis at the rate of 9% per annum for each | ||||||
26 | day beyond the 30 day grace period. | ||||||
27 | The per diem interest shall be determined by multiplying | ||||||
28 | the annual rate by the amount of the judgment unsatisfied and | ||||||
29 | dividing that amount by 365. The per diem interest is to be | ||||||
30 | modified when the judgment itself has been reduced. The per | ||||||
31 | diem interest continues to accrue until the judgment itself is | ||||||
32 | satisfied. | ||||||
33 | Each child support payment made within a single installment | ||||||
34 | period is to be credited first to the current support |
| |||||||
| |||||||
1 | installment due with any excess or subsequent payment during | ||||||
2 | the same installment period being credited to past due support. | ||||||
3 | The distribution of any payments are not controlled by this | ||||||
4 | Act. | ||||||
5 | Each payment that is to be credited to the amount of past | ||||||
6 | due child support is to be applied first to the accrued per | ||||||
7 | diem interest of the oldest remaining unsatisfied installment | ||||||
8 | judgment with any remaining portion of the payment to be | ||||||
9 | applied to the oldest unsatisfied judgment itself. An order for | ||||||
10 | child support entered or modified on or after January 1, 2002 | ||||||
11 | shall
contain a statement that a child support obligation | ||||||
12 | required under the order, or any
portion of a child support | ||||||
13 | obligation required under the order, that becomes due and
| ||||||
14 | remains unpaid for 30 days or more shall accrue simple interest | ||||||
15 | at the rate of
9% per annum. Failure to include the statement | ||||||
16 | in the order for support does
not affect the validity of the | ||||||
17 | order or the accrual of interest as provided in
this Section.
| ||||||
18 | (Source: P.A. 91-397, eff. 1-1-00; 92-374, eff. 8-15-01.)
|