SB2895sam003 93RD GENERAL ASSEMBLY

Sen. Iris Y. Martinez

Filed: 2/26/2004

09300SB2895sam003 LRB093 21046 LCB 48139 a

AMENDMENT TO SENATE BILL 2895

AMENDMENT NO. ______. Amend Senate Bill 2895 by replacing everything after the enacting clause with the following:

"Section 5. The Illinois Public Aid Code is amended by changing Sections 10-1 and 10-3.1 as follows:

(305 ILCS 5/10-1) (from Ch. 23, par. 10-1)

Sec. 10-1. Declaration of Public Policy - Persons Eligible for Child Support Enforcement Services - Fees for Non-Applicants and Non-Recipients.) It is the intent of this Code that the financial aid and social welfare services herein provided supplement rather than supplant the primary and continuing obligation of the family unit for self-support to the fullest extent permitted by the resources available to it. This primary and continuing obligation applies whether the family unit of parents and children or of husband and wife remains intact and resides in a common household or whether the unit has been broken by absence of one or more members of the unit. The obligation of the family unit is particularly applicable when a member is in necessitous circumstances and lacks the means of a livelihood compatible with health and well-being.

It is the purpose of this Article to provide for locating an absent parent or spouse, for determining his financial circumstances, and for enforcing his legal obligation of support, if he is able to furnish support, in whole or in part. The Illinois Department of Public Aid shall give priority to establishing, enforcing and collecting the current support obligation, and then to past due support owed to the family unit, except with respect to collections effected through the intercept programs provided for in this Article.

The child support enforcement services provided hereunder shall be furnished dependents of an absent parent or spouse who are applicants for or recipients of financial aid under this Code. It is not, however, a condition of eligibility for financial aid that there be no responsible relatives who are reasonably able to provide support. Nor, except as provided in Sections 4-1.7 and 10-8, shall the existence of such relatives or their payment of support contributions disqualify a needy person for financial aid.

By accepting financial aid under this Code, a spouse or a parent or other person having custody of a child shall be deemed to have made assignment to the Illinois Department for aid under Articles III, IV, V and VII or to a local governmental unit for aid under Article VI of any and all rights, title, and interest in any support obligation up to the amount of financial aid provided. The rights to support assigned to the Illinois Department of Public Aid or local governmental unit shall constitute an obligation owed the State or local governmental unit by the person who is responsible for providing the support, and shall be collectible under all applicable processes.

The Illinois Department of Public Aid shall also furnish the child support enforcement services established under this Article in behalf of persons who are not applicants for or recipients of financial aid under this Code in accordance with the requirements of Title IV, Part D of the Social Security Act. The Department may establish a schedule of reasonable fees, to be paid for the services provided and may deduct a collection fee, not to exceed 10% of the amount collected, from such collection. The Illinois Department of Public Aid shall cause to be published and distributed publications reasonably calculated to inform the public that individuals who are not recipients of or applicants for public aid under this Code are eligible for the child support enforcement services under this Article X. The Illinois Department shall also cause to be published and distributed a publication reasonably calculated to inform members of the National Guard and the Reserves of the United States Armed Forces of the CSMM program established in Section 10-3.1 of this Act. Such publications shall set forth an explanation, in plain language, that the child support enforcement services program is independent of any public aid program under the Code and that the receiving of child support enforcement services in no way implies that the person receiving such services is receiving public aid.

(Source: P.A. 92-590, eff. 7-1-02.)

(305 ILCS 5/10-3.1) (from Ch. 23, par. 10-3.1)

Sec. 10-3.1. Child and Spouse Support Unit. The Illinois Department shall establish within its administrative staff a Child and Spouse Support Unit to search for and locate absent parents and spouses liable for the support of persons resident in this State and to exercise the support enforcement powers and responsibilities assigned the Department by this Article. The unit shall cooperate with all law enforcement officials in this State and with the authorities of other States in locating persons responsible for the support of persons resident in other States and shall invite the cooperation of these authorities in the performance of its duties.

In addition to other duties assigned the Child and Spouse Support Unit by this Article, the Unit may refer to the Attorney General or units of local government with the approval of the Attorney General, any actions under this Section, Section Sections 10-10, and Section 10-15 for judicial enforcement or modification of the support liability. The Child and Spouse Support Unit shall act for the Department in referring to the Attorney General support matters requiring judicial enforcement under other laws. If requested by the Attorney General to so act, as provided in Section 12-16, attorneys of the Unit may assist the Attorney General or themselves institute actions in behalf of the Illinois Department under the Revised Uniform Reciprocal Enforcement of Support Act; under the Illinois Parentage Act of 1984; under the Non-Support of Spouse and Children Act; under the Non-Support Punishment Act; or under any other law, State or Federal, providing for support of a spouse or dependent child.

The Illinois Department shall also have the authority to enter into agreements with local governmental units or individuals, with the approval of the Attorney General, for the collection of moneys owing because of the failure of a parent to make child support payments for any child receiving services under this Article. Such agreements may be on a contingent fee basis, but such contingent fee shall not exceed 25% of the total amount collected.

An attorney who provides representation pursuant to this Section shall represent the Illinois Department exclusively. Regardless of the designation of the plaintiff in an action brought pursuant to this Section, an attorney-client relationship does not exist for purposes of that action between that attorney and (i) an applicant for or recipient of child support enforcement services or (ii) any other party to the action other than the Illinois Department. Nothing in this Section shall be construed to modify any power or duty (including a duty to maintain confidentiality) of the Child and Spouse Support Unit or the Illinois Department otherwise provided by law.

The Illinois Department may also enter into agreements with local governmental units for the Child and Spouse Support Unit to exercise the investigative and enforcement powers designated in this Article, including the issuance of administrative orders under Section 10-11, in locating responsible relatives and obtaining support for persons applying for or receiving aid under Article VI. Payments for defrayment of administrative costs and support payments obtained shall be deposited into the DHS Recoveries Trust Fund. Support payments shall be paid over to the General Assistance Fund of the local governmental unit at such time or times as the agreement may specify.

With respect to those cases in which it has support enforcement powers and responsibilities under this Article, the Illinois Department may provide by rule for periodic or other review of each administrative and court order for support to determine whether a modification of the order should be sought. The Illinois Department shall provide for and conduct such review in accordance with any applicable federal law and regulation.

As part of its process for review of orders for support, the Illinois Department, through written notice, may require the responsible relative to disclose his or her Social Security Number and past and present information concerning the relative's address, employment, gross wages, deductions from gross wages, net wages, bonuses, commissions, number of dependent exemptions claimed, individual and dependent health insurance coverage, and any other information necessary to determine the relative's ability to provide support in a case receiving child support enforcement services under this Article X.

The Illinois Department may send a written request for the same information to the relative's employer. The employer shall respond to the request for information within 15 days after the date the employer receives the request. If the employer willfully fails to fully respond within the 15-day period, the employer shall pay a penalty of $100 for each day that the response is not provided to the Illinois Department after the 15-day period has expired. The penalty may be collected in a civil action which may be brought against the employer in favor of the Illinois Department.

A written request for information sent to an employer pursuant to this Section shall consist of (i) a citation of this Section as the statutory authority for the request and for the employer's obligation to provide the requested information, (ii) a returnable form setting forth the employer's name and address and listing the name of the employee with respect to whom information is requested, and (iii) a citation of this Section as the statutory authority authorizing the employer to withhold a fee of up to $20 from the wages or income to be paid to each responsible relative for providing the information to the Illinois Department within the 15-day period. If the employer is withholding support payments from the responsible relative's income pursuant to an order for withholding, the employer may withhold the fee provided for in this Section only after withholding support as required under the order. Any amounts withheld from the responsible relative's income for payment of support and the fee provided for in this Section shall not be in excess of the amounts permitted under the federal Consumer Credit Protection Act.

In a case receiving child support enforcement services, the Illinois Department may request and obtain information from a particular employer under this Section no more than once in any 12-month period, unless the information is necessary to conduct a review of a court or administrative order for support at the request of the person receiving child support enforcement services.

The Illinois Department shall establish and maintain an administrative unit to receive and transmit to the Child and Spouse Support Unit information supplied by persons applying for or receiving child support enforcement services under Section 10-1. In addition, the Illinois Department shall address and respond to any alleged deficiencies that persons receiving or applying for services from the Child and Spouse Support Unit may identify concerning the Child and Spouse Support Unit's provision of child support enforcement services. Within 60 days after an action or failure to act by the Child and Spouse Support Unit that affects his or her case, a recipient of or applicant for child support enforcement services under Article X of this Code may request an explanation of the Unit's handling of the case. At the requestor's option, the explanation may be provided either orally in an interview, in writing, or both. If the Illinois Department fails to respond to the request for an explanation or fails to respond in a manner satisfactory to the applicant or recipient within 30 days from the date of the request for an explanation, the applicant or recipient may request a conference for further review of the matter by the Office of the Administrator of the Child and Spouse Support Unit. A request for a conference may be submitted at any time within 60 days after the explanation has been provided by the Child and Spouse Support Unit or within 60 days after the time for providing the explanation has expired.

The applicant or recipient may request a conference concerning any decision denying or terminating child support enforcement services under Article X of this Code, and the applicant or recipient may also request a conference concerning the Unit's failure to provide services or the provision of services in an amount or manner that is considered inadequate. For purposes of this Section, the Child and Spouse Support Unit includes all local governmental units or individuals with whom the Illinois Department has contracted under Section 10-3.1.

Upon receipt of a timely request for a conference, the Office of the Administrator shall review the case. The applicant or recipient requesting the conference shall be entitled, at his or her option, to appear in person or to participate in the conference by telephone. The applicant or recipient requesting the conference shall be entitled to be represented and to be afforded a reasonable opportunity to review the Illinois Department's file before or at the conference. At the conference, the applicant or recipient requesting the conference shall be afforded an opportunity to present all relevant matters in support of his or her claim. Conferences shall be without cost to the applicant or recipient requesting the conference and shall be conducted by a representative of the Child or Spouse Support Unit who did not participate in the action or inaction being reviewed.

The Office of the Administrator shall conduct a conference and inform all interested parties, in writing, of the results of the conference within 60 days from the date of filing of the request for a conference.

In addition to its other powers and responsibilities established by this Article, the Child and Spouse Support Unit shall conduct an annual assessment of each institution's program for institution based paternity establishment under Section 12 of the Vital Records Act.

The Child and Spouse Support Unit shall establish a program to modify the child support paid by any member of the National Guard or Reserves of the United States Armed Forces called up to military active duty for more than 30 continuous days. This program shall be known as the Child Support Military Modification program or CSMM. The CSMM program shall be available regardless of whether the custodial parent of the child for whose benefit the support is paid is an applicant or recipient of financial aid under this Code in accordance with the requirements of Title IV, Part D of the Social Security Act. The Child and Spouse Support Unit shall establish an application for members of the National Guard and Reserves who wish to avail themselves of the CSMM program. The application shall consist of an instruction sheet and one or more forms that the applicant must complete. The forms shall require the applicant to state the name and last known address of the obligee. The forms may include a form that the applicant must sign authorizing the Child and Spouse Support Unit to obtain income information from the applicant's military employer. The application shall be made available on the internet, at all military Mobilization Centers, and elsewhere at the discretion of the Child and Spouse Support Unit. Any member of the National Guard or Reserves may avail himself or herself of the CSMM program by filling out the CSMM application and submitting it to the Child and Spouse Support Unit or to his or her Mobilization Center Officer-in-Charge, who shall forward the application to the Child and Spouse Support Unit.

As soon as practicable after receiving the application, the Child and Spouse Support Unit shall mail a copy of it to the obligee at his or her last known address with a notice informing the obligee that the application constitutes a petition for modification of child support during the applicant's military active duty.

If the Child and Spouse Support Unit determines the applicant's military income will vary from the applicant's civilian income and the applicant is paying court-ordered child support, the Child and Spouse Support Unit shall seek a temporary modification in the child support paid by the applicant during his or her military active duty by filing a motion on behalf of the Department in the court in which the child support order was entered. The motion shall seek to modify the child support paid by the applicant by the same proportion that the applicant's military pay varies from his or her civilian pay. The court may make the modification retroactive to the date the obligee was mailed a copy of the application.

If the Child and Spouse Support Unit determines the applicant's military income will vary from the applicant's civilian income and the applicant is paying child support under an Administrative Order entered pursuant to this Article X, the Child and Spouse Support Unit shall temporarily modify the child support paid by the applicant by the same proportion that the applicant's military pay varies from his or her civilian pay, if the Child and Spouse Support Unit determines that the modification is appropriate. The Child and Spouse Support Unit may make the modification retroactive to the date the obligee was mailed a copy of the application.

The Department shall promulgate any rules necessary for the Child and Spouse Support Unit to carry out the Child Support Military Modification program.

(Source: P.A. 91-24, eff. 7-1-99; 91-613, eff. 10-1-99; 92-16, eff. 6-28-01; 92-590, eff. 7-1-02.)

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)

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, and in Section 10-3.1 of the Illinois Public Aid Code 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 Illinois Department of Public Aid 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.

(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.

(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, custody, or visitation 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. 92-289, eff. 8-9-01; 92-590, eff. 7-1-02; 92-651, eff. 7-11-02; 92-876, eff. 6-1-03; 93-353, eff. 1-1-04.)

Section 99. Effective date. This Act takes effect upon becoming law.".