SB2140 95TH GENERAL ASSEMBLY

LRB095 19020 WGH 45288 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB2140

Introduced 2/14/2008, by Sen. Dave Syverson

SYNOPSIS AS INTRODUCED:

750 ILCS 5/301	from Ch. 40, par. 301
750 ILCS 5/401	from Ch. 40, par. 401
750 ILCS 5/402	from Ch. 40, par. 402

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that, in a proceeding in which a qualified domestic relations order or Qualified Illinois Domestic Relations Order is entered, a final judgment of dissolution of marriage or legal separation or judgment declaring the invalidity of a marriage may not be entered until the court receives proof that the qualified domestic relations order or Qualified Illinois Domestic Relations Order has been properly filed with the appropriate employer or retirement system. Effective January 1, 2009.

A BILL FOR

AN ACT concerning civil law.

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

Section 5. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 301, 401, and 402 as follows:

(750 ILCS 5/301) (from Ch. 40, par. 301)

Sec. 301. Declaration of Invalidity - Grounds.) The court shall enter its judgment declaring the invalidity of a marriage (formerly known as annulment) entered into under the following circumstances:

(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;

(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity;

(3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or

(4) the marriage is prohibited.

In a proceeding in which a qualified domestic relations order or Qualified Illinois Domestic Relations Order is entered, a final non-retroactive judgment declaring the invalidity of a marriage may not be entered until the court receives proof that the qualified domestic relations order or Qualified Illinois Domestic Relations Order has been properly filed with the appropriate employer or retirement system. As used in this Section, "qualified domestic relations order" has the meaning ascribed to that term in Section 414(p) of the Internal Revenue Code of 1986 and "Qualified Illinois Domestic Relations Order" has the meaning ascribed to that term in Section 1-119 of the Illinois Pension Code.

(Source: P.A. 80-923.)

(750 ILCS 5/401) (from Ch. 40, par. 401)

Sec. 401. Dissolution of marriage.

(a) The court shall enter a judgment of dissolution of marriage if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding; provided, however, that a finding of residence of a party in any judgment entered under this Act from January 1, 1982 through June 30, 1982 shall satisfy the former domicile requirements of this Act; and if one of the following grounds for dissolution has been proved:

(1) That, without cause or provocation by the petitioner: the respondent was at the time of such marriage, and continues to be naturally impotent; the respondent had a wife or husband living at the time of the marriage; the respondent had committed adultery subsequent to the marriage; the respondent has wilfully deserted or absented himself or herself from the petitioner for the space of one year, including any period during which litigation may have pended between the spouses for dissolution of marriage or legal separation; the respondent has been guilty of habitual drunkenness for the space of 2 years; the respondent has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, or has attempted the life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical or mental cruelty, or has been convicted of a felony or other infamous crime; or the respondent has infected the other with a sexually transmitted disease. "Excessive use of addictive drugs", as used in this Section, refers to use of an addictive drug by a person when using the drug becomes a controlling or a dominant purpose of his life; or

(2) That the spouses have lived separate and apart for a continuous period in excess of 2 years and irreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family. If the spouses have lived separate and apart for a continuous period of not less than 6 months next preceding the entry of the judgment dissolving the marriage, as evidenced by testimony or affidavits of the spouses, the requirement of living separate and apart for a continuous period in excess of 2 years may be waived upon written stipulation of both spouses filed with the court. At any time after the parties cease to cohabit, the following periods shall be included in the period of separation:

(A) any period of cohabitation during which the parties attempted in good faith to reconcile and participated in marriage counseling under the guidance of any of the following: a psychiatrist, a clinical psychologist, a clinical social worker, a marriage and family therapist, a person authorized to provide counseling in accordance with the prescriptions of any religious denomination, or a person regularly engaged in providing family or marriage counseling; and

(B) any period of cohabitation under written agreement of the parties to attempt to reconcile.

In computing the period during which the spouses have lived separate and apart for purposes of this Section, periods during which the spouses were living separate and apart prior to July 1, 1984 are included.

(b) Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property. The court may enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.

In a proceeding in which a qualified domestic relations order or Qualified Illinois Domestic Relations Order is entered, a final judgment of dissolution of marriage may not be entered until the court receives proof that the qualified domestic relations order or Qualified Illinois Domestic Relations Order has been properly filed with the appropriate employer or retirement system. As used in this Section, "qualified domestic relations order" has the meaning ascribed to that term in Section 414(p) of the Internal Revenue Code of 1986 and "Qualified Illinois Domestic Relations Order" has the meaning ascribed to that term in Section 1-119 of the Illinois Pension Code.

The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.

If any provision of this Section or its application shall be adjudged unconstitutional or invalid for any reason by any court of competent jurisdiction, that judgment shall not impair, affect or invalidate any other provision or application of this Section, which shall remain in full force and effect.

(Source: P.A. 89-187, eff. 7-19-95.)

(750 ILCS 5/402) (from Ch. 40, par. 402)

Sec. 402. Legal Separation.) (a) Any person living separate and apart from his or her spouse without fault may have a remedy for reasonable support and maintenance while they so live apart.

(b) Such action shall be brought in the circuit court of the county in which the respondent resides or in which the parties last resided together as husband and wife. In the event the respondent cannot be found within the State, the action may be brought in the circuit court of the county in which the petitioner resides. Commencement of the action, temporary relief and trials shall be the same as in actions for dissolution of marriage.

(c) A proceeding or judgment for legal separation shall not bar either party from instituting an action for dissolution of marriage, and if the party so moving has met the requirements of Section 401, a judgment for dissolution shall be granted.

(d) In a proceeding in which a qualified domestic relations order or Qualified Illinois Domestic Relations Order is entered, a final judgment of legal separation may not be entered until the court receives proof that the qualified domestic relations order or Qualified Illinois Domestic Relations Order has been properly filed with the appropriate employer or retirement system. As used in this Section, "qualified domestic relations order" has the meaning ascribed to that term in Section 414(p) of the Internal Revenue Code of 1986 and "Qualified Illinois Domestic Relations Order" has the meaning ascribed to that term in Section 1-119 of the Illinois Pension Code.

(Source: P.A. 82-716.)

Section 99. Effective date. This Act takes effect January 1, 2009.