95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB5727

 

Introduced , by Rep. James D. Brosnahan

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/505   from Ch. 40, par. 505

    Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that for purposes of calculating child support the definition of net income shall include a deduction for expenditures for reasonable educational expenses of a child of the parties who is enrolled in a pre-school, elementary, or secondary educational institution. Effective immediately.


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A BILL FOR

 

HB5727 LRB095 15835 AJO 41844 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 505 as follows:
 
6     (750 ILCS 5/505)  (from Ch. 40, par. 505)
7     Sec. 505. Child support; contempt; penalties.
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
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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1         (1) The Court shall determine the minimum amount of
2     support by using the following guidelines:
3Number of ChildrenPercent of Supporting Party's
4Net Income
5120%
6228%
7332%
8440%
9545%
106 or more50%
11         (2) The above guidelines shall be applied in each case
12     unless the court makes a finding that application of the
13     guidelines would be inappropriate, after considering the
14     best interests of the child in light of evidence including
15     but not limited to one or more of the following relevant
16     factors:
17             (a) the financial resources and needs of the child;
18             (b) the financial resources and needs of the
19         custodial parent;
20             (c) the standard of living the child would have
21         enjoyed had the marriage not been dissolved;
22             (d) the physical and emotional condition of the
23         child, and his educational needs; and
24             (e) the financial resources and needs of the
25         non-custodial parent.
26         If the court deviates from the guidelines, the court's

 

 

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1     finding shall state the amount of support that would have
2     been required under the guidelines, if determinable. The
3     court shall include the reason or reasons for the variance
4     from the guidelines.
5         (3) "Net income" is defined as the total of all income
6     from all sources, minus the following deductions:
7             (a) Federal income tax (properly calculated
8         withholding or estimated payments);
9             (b) State income tax (properly calculated
10         withholding or estimated payments);
11             (c) Social Security (FICA payments);
12             (d) Mandatory retirement contributions required by
13         law or as a condition of employment;
14             (e) Union dues;
15             (f) Dependent and individual
16         health/hospitalization insurance premiums;
17             (g) Prior obligations of support or maintenance
18         actually paid pursuant to a court order;
19             (h) Expenditures for repayment of debts that
20         represent reasonable and necessary expenses for the
21         production of income, medical expenditures necessary
22         to preserve life or health, reasonable expenditures
23         for the benefit of the child and the other parent,
24         exclusive of gifts. The court shall reduce net income
25         in determining the minimum amount of support to be
26         ordered only for the period that such payments are due

 

 

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1         and shall enter an order containing provisions for its
2         self-executing modification upon termination of such
3         payment period.
4             (i) Expenditures for the reasonable educational
5         expenses of a child of the parties who is enrolled in a
6         pre-school, elementary, or secondary educational
7         institution.
8         (4) In cases where the court order provides for
9     health/hospitalization insurance coverage pursuant to
10     Section 505.2 of this Act, the premiums for that insurance,
11     or that portion of the premiums for which the supporting
12     party is responsible in the case of insurance provided
13     through an employer's health insurance plan where the
14     employer pays a portion of the premiums, shall be
15     subtracted from net income in determining the minimum
16     amount of support to be ordered.
17         (4.5) In a proceeding for child support following
18     dissolution of the marriage by a court that lacked personal
19     jurisdiction over the absent spouse, and in which the court
20     is requiring payment of support for the period before the
21     date an order for current support is entered, there is a
22     rebuttable presumption that the supporting party's net
23     income for the prior period was the same as his or her net
24     income at the time the order for current support is
25     entered.
26         (5) If the net income cannot be determined because of

 

 

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1     default or any other reason, the court shall order support
2     in an amount considered reasonable in the particular case.
3     The final order in all cases shall state the support level
4     in dollar amounts. However, if the court finds that the
5     child support amount cannot be expressed exclusively as a
6     dollar amount because all or a portion of the payor's net
7     income is uncertain as to source, time of payment, or
8     amount, the court may order a percentage amount of support
9     in addition to a specific dollar amount and enter such
10     other orders as may be necessary to determine and enforce,
11     on a timely basis, the applicable support ordered.
12         (6) If (i) the non-custodial parent was properly served
13     with a request for discovery of financial information
14     relating to the non-custodial parent's ability to provide
15     child support, (ii) the non-custodial parent failed to
16     comply with the request, despite having been ordered to do
17     so by the court, and (iii) the non-custodial parent is not
18     present at the hearing to determine support despite having
19     received proper notice, then any relevant financial
20     information concerning the non-custodial parent's ability
21     to provide child support that was obtained pursuant to
22     subpoena and proper notice shall be admitted into evidence
23     without the need to establish any further foundation for
24     its admission.
25     (a-5) In an action to enforce an order for support based on
26 the respondent's failure to make support payments as required

 

 

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1 by the order, notice of proceedings to hold the respondent in
2 contempt for that failure may be served on the respondent by
3 personal service or by regular mail addressed to the
4 respondent's last known address. The respondent's last known
5 address may be determined from records of the clerk of the
6 court, from the Federal Case Registry of Child Support Orders,
7 or by any other reasonable means.
8     (b) Failure of either parent to comply with an order to pay
9 support shall be punishable as in other cases of contempt. In
10 addition to other penalties provided by law the Court may,
11 after finding the parent guilty of contempt, order that the
12 parent be:
13         (1) placed on probation with such conditions of
14     probation as the Court deems advisable;
15         (2) sentenced to periodic imprisonment for a period not
16     to exceed 6 months; provided, however, that the Court may
17     permit the parent to be released for periods of time during
18     the day or night to:
19             (A) work; or
20             (B) conduct a business or other self-employed
21         occupation.
22     The Court may further order any part or all of the earnings
23 of a parent during a sentence of periodic imprisonment paid to
24 the Clerk of the Circuit Court or to the parent having custody
25 or to the guardian having custody of the children of the
26 sentenced parent for the support of said children until further

 

 

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1 order of the Court.
2     If there is a unity of interest and ownership sufficient to
3 render no financial separation between a non-custodial parent
4 and another person or persons or business entity, the court may
5 pierce the ownership veil of the person, persons, or business
6 entity to discover assets of the non-custodial parent held in
7 the name of that person, those persons, or that business
8 entity. The following circumstances are sufficient to
9 authorize a court to order discovery of the assets of a person,
10 persons, or business entity and to compel the application of
11 any discovered assets toward payment on the judgment for
12 support:
13         (1) the non-custodial parent and the person, persons,
14     or business entity maintain records together.
15         (2) the non-custodial parent and the person, persons,
16     or business entity fail to maintain an arms length
17     relationship between themselves with regard to any assets.
18         (3) the non-custodial parent transfers assets to the
19     person, persons, or business entity with the intent to
20     perpetrate a fraud on the custodial parent.
21     With respect to assets which are real property, no order
22 entered under this paragraph shall affect the rights of bona
23 fide purchasers, mortgagees, judgment creditors, or other lien
24 holders who acquire their interests in the property prior to
25 the time a notice of lis pendens pursuant to the Code of Civil
26 Procedure or a copy of the order is placed of record in the

 

 

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1 office of the recorder of deeds for the county in which the
2 real property is located.
3     The court may also order in cases where the parent is 90
4 days or more delinquent in payment of support or has been
5 adjudicated in arrears in an amount equal to 90 days obligation
6 or more, that the parent's Illinois driving privileges be
7 suspended until the court determines that the parent is in
8 compliance with the order of support. The court may also order
9 that the parent be issued a family financial responsibility
10 driving permit that would allow limited driving privileges for
11 employment and medical purposes in accordance with Section
12 7-702.1 of the Illinois Vehicle Code. The clerk of the circuit
13 court shall certify the order suspending the driving privileges
14 of the parent or granting the issuance of a family financial
15 responsibility driving permit to the Secretary of State on
16 forms prescribed by the Secretary. Upon receipt of the
17 authenticated documents, the Secretary of State shall suspend
18 the parent's driving privileges until further order of the
19 court and shall, if ordered by the court, subject to the
20 provisions of Section 7-702.1 of the Illinois Vehicle Code,
21 issue a family financial responsibility driving permit to the
22 parent.
23     In addition to the penalties or punishment that may be
24 imposed under this Section, any person whose conduct
25 constitutes a violation of Section 15 of the Non-Support
26 Punishment Act may be prosecuted under that Act, and a person

 

 

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1 convicted under that Act may be sentenced in accordance with
2 that Act. The sentence may include but need not be limited to a
3 requirement that the person perform community service under
4 Section 50 of that Act or participate in a work alternative
5 program under Section 50 of that Act. A person may not be
6 required to participate in a work alternative program under
7 Section 50 of that Act if the person is currently participating
8 in a work program pursuant to Section 505.1 of this Act.
9     A support obligation, or any portion of a support
10 obligation, which becomes due and remains unpaid as of the end
11 of each month, excluding the child support that was due for
12 that month to the extent that it was not paid in that month,
13 shall accrue simple interest as set forth in Section 12-109 of
14 the Code of Civil Procedure. An order for support entered or
15 modified on or after January 1, 2006 shall contain a statement
16 that a support obligation required under the order, or any
17 portion of a support obligation required under the order, that
18 becomes due and remains unpaid as of the end of each month,
19 excluding the child support that was due for that month to the
20 extent that it was not paid in that month, shall accrue simple
21 interest as set forth in Section 12-109 of the Code of Civil
22 Procedure. Failure to include the statement in the order for
23 support does not affect the validity of the order or the
24 accrual of interest as provided in this Section.
25     (c) A one-time charge of 20% is imposable upon the amount
26 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

 

 

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1 include a provision requiring the obligor to notify the court
2 and, in cases in which a party is receiving child and spouse
3 services under Article X of the Illinois Public Aid Code, the
4 Department of Healthcare and Family Services, within 7 days,
5 (i) of the name and address of any new employer of the obligor,
6 (ii) whether the obligor has access to health insurance
7 coverage through the employer or other group coverage and, if
8 so, the policy name and number and the names of persons covered
9 under the policy, and (iii) of any new residential or mailing
10 address or telephone number of the non-custodial parent. In any
11 subsequent action to enforce a support order, upon a sufficient
12 showing that a diligent effort has been made to ascertain the
13 location of the non-custodial parent, service of process or
14 provision of notice necessary in the case may be made at the
15 last known address of the non-custodial parent in any manner
16 expressly provided by the Code of Civil Procedure or this Act,
17 which service shall be sufficient for purposes of due process.
18     (g) An order for support shall include a date on which the
19 current support obligation terminates. The termination date
20 shall be no earlier than the date on which the child covered by
21 the order will attain the age of 18. However, if the child will
22 not graduate from high school until after attaining the age of
23 18, then the termination date shall be no earlier than the
24 earlier of the date on which the child's high school graduation
25 will occur or the date on which the child will attain the age
26 of 19. The order for support shall state that the termination

 

 

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1 date does not apply to any arrearage that may remain unpaid on
2 that date. Nothing in this subsection shall be construed to
3 prevent the court from modifying the order or terminating the
4 order in the event the child is otherwise emancipated.
5     (g-5) If there is an unpaid arrearage or delinquency (as
6 those terms are defined in the Income Withholding for Support
7 Act) equal to at least one month's support obligation on the
8 termination date stated in the order for support or, if there
9 is no termination date stated in the order, on the date the
10 child attains the age of majority or is otherwise emancipated,
11 the periodic amount required to be paid for current support of
12 that child immediately prior to that date shall automatically
13 continue to be an obligation, not as current support but as
14 periodic payment toward satisfaction of the unpaid arrearage or
15 delinquency. That periodic payment shall be in addition to any
16 periodic payment previously required for satisfaction of the
17 arrearage or delinquency. The total periodic amount to be paid
18 toward satisfaction of the arrearage or delinquency may be
19 enforced and collected by any method provided by law for
20 enforcement and collection of child support, including but not
21 limited to income withholding under the Income Withholding for
22 Support Act. Each order for support entered or modified on or
23 after the effective date of this amendatory Act of the 93rd
24 General Assembly must contain a statement notifying the parties
25 of the requirements of this subsection. Failure to include the
26 statement in the order for support does not affect the validity

 

 

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1 of the order or the operation of the provisions of this
2 subsection with regard to the order. This subsection shall not
3 be construed to prevent or affect the establishment or
4 modification of an order for support of a minor child or the
5 establishment or modification of an order for support of a
6 non-minor child or educational expenses under Section 513 of
7 this Act.
8     (h) An order entered under this Section shall include a
9 provision requiring the obligor to report to the obligee and to
10 the clerk of court within 10 days each time the obligor obtains
11 new employment, and each time the obligor's employment is
12 terminated for any reason. The report shall be in writing and
13 shall, in the case of new employment, include the name and
14 address of the new employer. Failure to report new employment
15 or the termination of current employment, if coupled with
16 nonpayment of support for a period in excess of 60 days, is
17 indirect criminal contempt. For any obligor arrested for
18 failure to report new employment bond shall be set in the
19 amount of the child support that should have been paid during
20 the period of unreported employment. An order entered under
21 this Section shall also include a provision requiring the
22 obligor and obligee parents to advise each other of a change in
23 residence within 5 days of the change except when the court
24 finds that the physical, mental, or emotional health of a party
25 or that of a child, or both, would be seriously endangered by
26 disclosure of the party's address.

 

 

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1     (i) The court does not lose the powers of contempt,
2 driver's license suspension, or other child support
3 enforcement mechanisms, including, but not limited to,
4 criminal prosecution as set forth in this Act, upon the
5 emancipation of the minor child or children.
6 (Source: P.A. 94-90, eff. 1-1-06; 95-331, eff. 8-21-07.)
 
7     Section 99. Effective date. This Act takes effect upon
8 becoming law.