SB1827 97TH GENERAL ASSEMBLY

LRB097 05092 KTG 45134 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1827

Introduced 2/9/2011, by Sen. Dan Kotowski

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-1	from Ch. 23, par. 10-1
305 ILCS 5/10-15.1 new
305 ILCS 5/10-16.5
735 ILCS 5/12-109	from Ch. 110, par. 12-109

Amends the Illinois Public Aid Code. Adds provisions concerning the judicial registration of administrative support orders. Provides that notwithstanding any other law to the contrary, the Department of Healthcare and Family Services shall have no further duty or authority to enforce and collect interest accrued on support obligations established under the Code or under any other law, including any interest on support accrued and deemed to have been assigned to the State under previous law. Amends the Code of Civil Procedure. Provides that interest on child support obligations may be collected by any means available under State law for the collection of child support judgments (rather than by any means available under federal and State laws, rules, and regulations providing for the collection of child support). Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning child support.

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 changing Sections 10-1 and 10-16.5 and by adding Section 10-15.1 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 Department of Healthcare and Family Services 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, excluding including statutory interest thereon, up to the amount of financial aid provided. The rights to support assigned to the Department of Healthcare and Family Services (formerly 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 Department of Healthcare and Family Services 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 Department of Healthcare and Family Services 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. 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. 94-90, eff. 1-1-06; 95-331, eff. 8-21-07.)

(305 ILCS 5/10-15.1 new)

Sec. 10-15.1. Judicial registration of administrative support orders.

(a) An administrative support order established by the Illinois Department under this Article X may be registered in the appropriate circuit court of this State by the Department or by a party to the order by filing:

(1) Two copies, including one certified copy of the order to be registered, and any modification of the administrative support order.

(2) A sworn statement by the person requesting registration or a certified copy of the Department payment record showing the amount of any past due support accrued under the administrative support order.

(3) The name of the obligor and, if known, the obligor's address and social security number.

(4) The name of the obligee and the obligee's address, unless the obligee alleges in an affidavit or pleading under oath that the health, safety, or liberty of the obligee or child would be jeopardized by disclosure of specific identifying information, in which case that information must be sealed and may not be disclosed to the other party or public. After a hearing in which the court takes into consideration the health, safety, or liberty of the party or child, the court may order disclosure of information that the court determines to be in the interest of justice.

(b) The filing of an administrative support order under subsection (a) constitutes registration with the circuit court.

(c) On receipt of a request for registration the circuit court shall cause the administrative support order to be filed in the court's registry of administrative support orders.

(d) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this State may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.

(e) When an administrative support order is registered, the court shall notify the nonregistering party and the Illinois Department, unless the Department is requesting registration of its order. The notice must be accompanied by a copy of the registered administrative support order and the documents and relevant information accompanying the order.

(f) A notice of registration of an administrative support order must provide the following information:

(1) That a registered administrative order is enforceable in the same manner as an order for support issued by the circuit court.

(2) That a hearing to contest the validity or enforcement of the registered administrative support order must be requested within 20 days after the date of mailing or personal service of the notice.

(3) That failure to contest, in a timely manner, the validity or enforcement of the registered administrative support order shall result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted.

(4) The amount of any alleged arrearages.

(g) A nonregistering party seeking to contest the validity or enforcement of a registered administrative support order shall request a hearing within 20 days after the date of mailing or personal service of notice of the registration. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered administrative support order, or to contest the remedies being sought or the amount of any alleged arrearages.

(h) If the nonregistering party fails to contest the validity or enforcement of the registered administrative support order in a timely manner, the order shall be confirmed by operation of law.

(i) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered administrative support order, the circuit court shall schedule the matter for hearing and give notice to the parties and the Illinois Department of the date, time, and place of the hearing.

(j) A party contesting the validity or enforcement of a registered administrative support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:

(1) The Illinois Department lacked personal jurisdiction over the contesting party.

(2) The administrative support order was obtained by fraud.

(3) The administrative support order has been vacated, suspended, or modified by a later order.

(4) The Illinois Department has stayed the administrative support order pending appeal.

(5) There is a defense under the law to the remedy sought.

(6) Full or partial payment has been made.

(k) If a party presents evidence establishing a full or partial payment defense under subsection (j), the court may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered administrative support order may be enforced by all remedies available under State law.

(l) If a contesting party does not establish a defense under subsection (j) to the validity or enforcement of the administrative support order, the court shall issue an order confirming the administrative support order. Confirmation of the registered administrative support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration. Upon confirmation, the registered administrative support order shall be treated in the same manner as a support order entered by the circuit court.

(305 ILCS 5/10-16.5)

Sec. 10-16.5. Interest on support obligations. A support obligation, or any portion of a support obligation, which becomes due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure. An order for support entered or modified on or after January 1, 2006 shall contain a statement that a support obligation required under the order, or any portion of a support obligation required under the order, that becomes due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure. Failure to include the statement in the order for support does not affect the validity of the order or the accrual of interest as provided in this Section.

Beginning with the effective date of this amendatory Act of the 97th General Assembly, and notwithstanding any other law to the contrary, the Illinois Department shall have no further duty or authority to enforce and collect interest accrued on support obligations established under this Code or under any other law, including any interest on support accrued and deemed to have been assigned to the State under previous law.

(Source: P.A. 94-90, eff. 1-1-06.)

Section 10. The Code of Civil Procedure is amended by changing Section 12-109 as follows:

(735 ILCS 5/12-109) (from Ch. 110, par. 12-109)

Sec. 12-109. Interest on judgments.

(a) Every judgment except those arising by operation of law from child support orders shall bear interest thereon as provided in Section 2-1303.

(b) Every judgment arising by operation of law from a child support order shall bear interest as provided in this subsection. The interest on judgments arising by operation of law from child support orders shall be calculated by applying one-twelfth of the current statutory interest rate as provided in Section 2-1303 to the unpaid child support balance as of the end of each calendar month. The unpaid child support balance at the end of the month is the total amount of child support ordered, excluding the child support that was due for that month to the extent that it was not paid in that month and including judgments for retroactive child support, less all payments received and applied as set forth in this subsection. The accrued interest shall not be included in the unpaid child support balance when calculating interest at the end of the month. The unpaid child support balance as of the end of each month shall be determined by calculating the current monthly child support obligation and applying all payments received for that month, except federal income tax refund intercepts, first to the current monthly child support obligation and then applying any payments in excess of the current monthly child support obligation to the unpaid child support balance owed from previous months. The current monthly child support obligation shall be determined from the document that established the support obligation. Federal income tax refund intercepts and any payments in excess of the current monthly child support obligation shall be applied to the unpaid child support balance. Any payments in excess of the current monthly child support obligation and the unpaid child support balance shall be applied to the accrued interest on the unpaid child support balance. Interest on child support obligations may be collected by any means available under State law for the collection of child support judgments federal and State laws, rules, and regulations providing for the collection of child support.

(Source: P.A. 94-90, eff. 1-1-06.)

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