Sen. John G. Mulroe
Filed: 5/8/2014
| |||||||
| |||||||
| |||||||
1 | AMENDMENT TO HOUSE BILL 1452
| ||||||
2 | AMENDMENT NO. ______. Amend House Bill 1452 by replacing | ||||||
3 | everything after the enacting clause with the following: | ||||||
4 | "ARTICLE 1. HEART BALM ACTIONS | ||||||
5 | Section 1-1. Findings. The majority of states have | ||||||
6 | abolished heart balm actions. In Illinois, heart balm actions | ||||||
7 | for alienation of affections, breach of promise to marry, and | ||||||
8 | criminal conversation were permitted under the common law | ||||||
9 | before the abolition of those causes of action by "An Act in | ||||||
10 | relation to certain causes of action conducive to extortion and | ||||||
11 | blackmail, and to declare illegal, contracts and Acts made and | ||||||
12 | done in pursuance thereof", filed May 4, 1935, Laws 1935, p. | ||||||
13 | 716. The Illinois Supreme Court held, in Heck v. Schupp, 394 | ||||||
14 | Ill. 296 (1946), that the 1935 Act was unconstitutional and | ||||||
15 | that the abolition of heart balm actions would infringe upon | ||||||
16 | the rights of parties to remedies under Section 19 of Article |
| |||||||
| |||||||
1 | II of the 1870 Constitution. (Section 12 of Article I of the | ||||||
2 | 1970 Constitution is similar to the relevant portion of Section | ||||||
3 | 19 of Article II of the 1870 Constitution.) Since 1947, heart | ||||||
4 | balm actions have been permitted with limited damages under the | ||||||
5 | Alienation of Affections Act, the Breach of Promise Act, and | ||||||
6 | the Criminal Conversation Act. | ||||||
7 | Society has since recognized that the amicable settlement | ||||||
8 | of domestic relations disputes is beneficial. In 1977, the | ||||||
9 | Illinois Marriage and Dissolution of Marriage Act became the | ||||||
10 | law of this State. As stated in Section 102 of that Act, among | ||||||
11 | its underlying purposes are: promoting the amicable settlement | ||||||
12 | of disputes that have arisen between parties to a marriage; | ||||||
13 | mitigating the potential harm to the spouses and their children | ||||||
14 | caused by the process of legal dissolution of marriage; and | ||||||
15 | eliminating the consideration of marital misconduct in the | ||||||
16 | adjudication of rights and duties incident to the legal | ||||||
17 | dissolution of marriage, legal separation and declaration of | ||||||
18 | invalidity of marriage. Heart balm actions are inconsistent | ||||||
19 | with these purposes. | ||||||
20 | Society has also realized that women and men should have | ||||||
21 | equal rights under the law. Heart balm actions are rooted in | ||||||
22 | the now-discredited notion that men and women are unequal. | ||||||
23 | Although the Alienation of Affections Act, the Breach of | ||||||
24 | Promise Act, and the Criminal Conversation Act represent | ||||||
25 | attempts to ameliorate some of the more odious consequences of | ||||||
26 | heart balm actions, the General Assembly finds that actions for |
| |||||||
| |||||||
1 | alienation of affections, breach of promise to marry, and | ||||||
2 | criminal conversation are contrary to the public policy of this | ||||||
3 | State and those causes of action should be abolished.
| ||||||
4 | Section 1-5. The Code of Civil Procedure is amended by | ||||||
5 | changing Section 13-202 as follows:
| ||||||
6 | (735 ILCS 5/13-202) (from Ch. 110, par. 13-202)
| ||||||
7 | Sec. 13-202. Personal injury - Penalty. Actions for damages | ||||||
8 | for an injury
to the person, or for
false imprisonment, or | ||||||
9 | malicious prosecution, or for a statutory
penalty, or for | ||||||
10 | abduction, or for seduction, or for criminal
conversation that | ||||||
11 | may proceed pursuant to subsection (a) of Section 7.1 of the | ||||||
12 | Criminal Conversation Abolition Act , except damages resulting | ||||||
13 | from first degree murder or the commission of
a Class X felony | ||||||
14 | and the perpetrator thereof is convicted of such crime,
shall | ||||||
15 | be commenced within 2 years next after the cause
of action | ||||||
16 | accrued but such an action against a defendant arising from a
| ||||||
17 | crime committed by the defendant in whose name an escrow | ||||||
18 | account was established
under the "Criminal Victims' Escrow | ||||||
19 | Account Act" shall be commenced within
2 years after the | ||||||
20 | establishment of such account. If the compelling of a | ||||||
21 | confession or information by imminent bodily harm or threat of | ||||||
22 | imminent bodily harm results in whole or in part in a criminal | ||||||
23 | prosecution of the plaintiff, the
2-year period set out in this | ||||||
24 | Section shall be tolled during the time in which the plaintiff |
| |||||||
| |||||||
1 | is incarcerated, or until criminal prosecution has been finally | ||||||
2 | adjudicated in favor of the above referred plaintiff, whichever | ||||||
3 | is later. However, this provision relating to the compelling of | ||||||
4 | a confession or information shall not apply to units of local | ||||||
5 | government subject to the Local Governmental and Governmental | ||||||
6 | Employees Tort Immunity Act.
| ||||||
7 | (Source: P.A. 94-1113, eff. 1-1-08 .)
| ||||||
8 | Section 1-10. The Alienation of Affections Act is amended | ||||||
9 | by changing the title of the Act and Section 0.01 and by adding | ||||||
10 | Section 7.1 as follows:
| ||||||
11 | (740 ILCS 5/Act title)
| ||||||
12 | An Act relating to the damages
recoverable in actions for | ||||||
13 | alienation of affections.
| ||||||
14 | (740 ILCS 5/0.01) (from Ch. 40, par. 1900)
| ||||||
15 | Sec. 0.01. Short title. This Act may be cited as the
| ||||||
16 | Alienation of Affections Abolition Act.
| ||||||
17 | (Source: P.A. 86-1324.)
| ||||||
18 | (740 ILCS 5/7.1 new) | ||||||
19 | Sec. 7.1. Abolition; effect of repeal. | ||||||
20 | (a) This amendatory Act of the 98th General Assembly
does | ||||||
21 | not apply to any cause of action that accrued under Sections 1 | ||||||
22 | through 7 of this Act before their repeal, and a timely action |
| |||||||
| |||||||
1 | brought under those Sections shall be decided in accordance | ||||||
2 | with those Sections as they existed when the cause of action | ||||||
3 | accrued. | ||||||
4 | (b) An action may not be brought for alienation of | ||||||
5 | affections based on facts occurring on or after the effective | ||||||
6 | date of this amendatory Act of the 98th General Assembly. | ||||||
7 | (740 ILCS 5/1 rep.) | ||||||
8 | (740 ILCS 5/2 rep.) | ||||||
9 | (740 ILCS 5/3 rep.) | ||||||
10 | (740 ILCS 5/4 rep.) | ||||||
11 | (740 ILCS 5/5 rep.) | ||||||
12 | (740 ILCS 5/6 rep.) | ||||||
13 | (740 ILCS 5/7 rep.) | ||||||
14 | Section 1-15. The Alienation of Affections Act is amended | ||||||
15 | by repealing Sections 1, 2, 3, 4, 5, 6, and 7. | ||||||
16 | Section 1-20. The Breach of Promise Act is amended by | ||||||
17 | changing Section 0.01 and by adding Section 10.1 as follows:
| ||||||
18 | (740 ILCS 15/0.01) (from Ch. 40, par. 1800)
| ||||||
19 | Sec. 0.01. Short title. This Act may be cited as the
Breach | ||||||
20 | of Promise Abolition Act.
| ||||||
21 | (Source: P.A. 86-1324.)
| ||||||
22 | (740 ILCS 15/10.1 new) |
| |||||||
| |||||||
1 | Sec. 10.1. Abolition; effect of repeal. | ||||||
2 | (a) This amendatory Act of the 98th General Assembly
does | ||||||
3 | not apply to any cause of action that accrued under Sections 1 | ||||||
4 | through 10 of this Act before their repeal, and a timely action | ||||||
5 | brought under those Sections shall be decided in accordance | ||||||
6 | with those Sections as they existed when the cause of action | ||||||
7 | accrued. | ||||||
8 | (b) An action may not be brought for breach of promise or | ||||||
9 | agreement to marry based on facts occurring on or after the | ||||||
10 | effective date of this amendatory Act of the 98th General | ||||||
11 | Assembly. | ||||||
12 | (740 ILCS 15/1 rep.) | ||||||
13 | (740 ILCS 15/2 rep.) | ||||||
14 | (740 ILCS 15/3 rep.) | ||||||
15 | (740 ILCS 15/4 rep.) | ||||||
16 | (740 ILCS 15/5 rep.) | ||||||
17 | (740 ILCS 15/6 rep.) | ||||||
18 | (740 ILCS 15/7 rep.) | ||||||
19 | (740 ILCS 15/8 rep.) | ||||||
20 | (740 ILCS 15/9 rep.) | ||||||
21 | (740 ILCS 15/10 rep.) | ||||||
22 | Section 1-25. The Breach of Promise Act is amended by | ||||||
23 | repealing Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10. | ||||||
24 | Section 1-30. The Criminal Conversation Act is amended by |
| |||||||
| |||||||
1 | changing the title of the Act and Section 0.01 and by adding | ||||||
2 | Section 7.1 as follows:
| ||||||
3 | (740 ILCS 50/Act title)
| ||||||
4 | An Act relating to the damages
recoverable in actions for | ||||||
5 | criminal conversation.
| ||||||
6 | (740 ILCS 50/0.01) (from Ch. 40, par. 1950)
| ||||||
7 | Sec. 0.01. Short title. This Act may be cited as the
| ||||||
8 | Criminal Conversation Abolition Act.
| ||||||
9 | (Source: P.A. 86-1324.)
| ||||||
10 | (740 ILCS 50/7.1 new) | ||||||
11 | Sec. 7.1. Abolition; effect of repeal. | ||||||
12 | (a) This amendatory Act of the 98th General Assembly
does | ||||||
13 | not apply to any cause of action that accrued under Sections 1 | ||||||
14 | through 7 of this Act before their repeal, and a timely action | ||||||
15 | brought under those Sections shall be decided in accordance | ||||||
16 | with those Sections as they existed when the cause of action | ||||||
17 | accrued. | ||||||
18 | (b) An action may not be brought for criminal conversation | ||||||
19 | based on facts occurring on or after the effective date of this | ||||||
20 | amendatory Act of the 98th General Assembly. | ||||||
21 | (740 ILCS 50/1 rep.) | ||||||
22 | (740 ILCS 50/2 rep.) |
| |||||||
| |||||||
1 | (740 ILCS 50/3 rep.) | ||||||
2 | (740 ILCS 50/4 rep.) | ||||||
3 | (740 ILCS 50/5 rep.) | ||||||
4 | (740 ILCS 50/6 rep.) | ||||||
5 | (740 ILCS 50/7 rep.) | ||||||
6 | Section 1-35. The Criminal Conversation Act is amended by | ||||||
7 | repealing Sections 1, 2, 3, 4, 5, 6, and 7.
| ||||||
8 | ARTICLE 5. OTHER AMENDATORY PROVISIONS | ||||||
9 | Section 5-5. The Intergovernmental Missing Child Recovery | ||||||
10 | Act of 1984 is amended by changing Section 7.1 as follows:
| ||||||
11 | (325 ILCS 40/7.1) (from Ch. 23, par. 2257.1)
| ||||||
12 | Sec. 7.1. In addition to any requirement of Section 601.2
| ||||||
13 | 601 or 611 of the
Illinois Marriage and Dissolution of Marriage | ||||||
14 | Act or
applicable provisions of the Uniform Child-Custody | ||||||
15 | Jurisdiction
and Enforcement Act regarding a parental | ||||||
16 | responsibility allocation
custody proceeding
of an | ||||||
17 | out-of-state party, every court in this State, prior to | ||||||
18 | granting or
modifying a parental responsibility allocation
| ||||||
19 | custody judgment, shall inquire with LEADS and the National
| ||||||
20 | Crime Information Center to ascertain whether the child or | ||||||
21 | children in
question have been reported missing or have been | ||||||
22 | involved in or are the
victims of a parental or noncustodial | ||||||
23 | abduction. Such inquiry may be
conducted with any law |
| |||||||
| |||||||
1 | enforcement agency in this State that maintains a
LEADS | ||||||
2 | terminal or has immediate access to one on a 24-hour-per-day,
| ||||||
3 | 7-day-per-week basis through a written agreement with another | ||||||
4 | law enforcement
agency.
| ||||||
5 | (Source: P.A. 93-108, eff. 1-1-04.)
| ||||||
6 | Section 5-10. The Code of Criminal Procedure of 1963 is | ||||||
7 | amended by changing Section 112A-23 as follows:
| ||||||
8 | (725 ILCS 5/112A-23) (from Ch. 38, par. 112A-23)
| ||||||
9 | Sec. 112A-23. Enforcement of orders of protection.
| ||||||
10 | (a) When violation is crime. A violation of any order of | ||||||
11 | protection,
whether issued in a civil, quasi-criminal | ||||||
12 | proceeding, shall be
enforced by a
criminal court when:
| ||||||
13 | (1) The respondent commits the crime of violation of an | ||||||
14 | order of
protection pursuant to Section 12-3.4 or 12-30 of | ||||||
15 | the Criminal Code of
1961 or the Criminal Code of 2012, by
| ||||||
16 | having knowingly violated:
| ||||||
17 | (i) remedies described in paragraphs (1), (2), | ||||||
18 | (3), (14),
or
(14.5)
of subsection (b) of Section | ||||||
19 | 112A-14,
| ||||||
20 | (ii) a remedy, which is substantially similar to | ||||||
21 | the remedies
authorized
under paragraphs (1), (2), | ||||||
22 | (3), (14) or (14.5) of subsection (b) of Section 214
of | ||||||
23 | the Illinois Domestic Violence Act of 1986, in a valid | ||||||
24 | order of protection,
which is authorized under the laws |
| |||||||
| |||||||
1 | of another state, tribe or United States
territory,
| ||||||
2 | (iii) or any other remedy when the act
constitutes | ||||||
3 | a crime against the protected parties as defined by the | ||||||
4 | Criminal
Code of 1961 or the Criminal Code of 2012.
| ||||||
5 | Prosecution for a violation of an order of protection | ||||||
6 | shall
not bar concurrent prosecution for any other crime, | ||||||
7 | including any crime
that may have been committed at the | ||||||
8 | time of the violation of the order
of protection; or
| ||||||
9 | (2) The respondent commits the crime of child abduction | ||||||
10 | pursuant
to Section 10-5 of the Criminal Code of 1961 or | ||||||
11 | the Criminal Code of 2012, by having knowingly violated:
| ||||||
12 | (i) remedies described in paragraphs (5), (6) or | ||||||
13 | (8) of subsection
(b)
of
Section 112A-14, or
| ||||||
14 | (ii) a remedy, which is substantially similar to | ||||||
15 | the remedies
authorized
under paragraphs (1),
(5), | ||||||
16 | (6), or (8) of subsection (b) of Section 214
of the | ||||||
17 | Illinois Domestic Violence Act of 1986, in a valid | ||||||
18 | order of protection,
which is authorized under the laws | ||||||
19 | of another state, tribe or United States
territory.
| ||||||
20 | (b) When violation is contempt of court. A violation of any | ||||||
21 | valid order of protection, whether issued in a civil or | ||||||
22 | criminal
proceeding, may be enforced through civil or criminal | ||||||
23 | contempt procedures,
as appropriate, by any court with | ||||||
24 | jurisdiction, regardless where the act or
acts which violated | ||||||
25 | the order of protection were committed, to the extent
| ||||||
26 | consistent with the venue provisions of this Article. Nothing |
| |||||||
| |||||||
1 | in this
Article shall preclude any Illinois court from | ||||||
2 | enforcing any valid order of
protection issued in another | ||||||
3 | state. Illinois courts may enforce orders of
protection through | ||||||
4 | both criminal prosecution and contempt proceedings,
unless the | ||||||
5 | action which is second in time is barred by collateral estoppel
| ||||||
6 | or the constitutional prohibition against double jeopardy.
| ||||||
7 | (1) In a contempt proceeding where the petition for a | ||||||
8 | rule to show
cause sets forth facts evidencing an immediate | ||||||
9 | danger that the
respondent will flee the jurisdiction, | ||||||
10 | conceal a child, or inflict physical
abuse on the | ||||||
11 | petitioner or minor children or on dependent adults in
| ||||||
12 | petitioner's care, the court may order the
attachment of | ||||||
13 | the respondent without prior service of the rule to show
| ||||||
14 | cause or the petition for a rule to show cause. Bond shall | ||||||
15 | be set unless
specifically denied in writing.
| ||||||
16 | (2) A petition for a rule to show cause for violation | ||||||
17 | of an order of
protection shall be treated as an expedited | ||||||
18 | proceeding.
| ||||||
19 | (c) Violation of custody , allocation of parental | ||||||
20 | responsibility, or support orders. A violation of remedies
| ||||||
21 | described in paragraphs (5), (6), (8), or (9) of subsection (b) | ||||||
22 | of Section
112A-14 may be enforced by any remedy provided by | ||||||
23 | Section 607.5 611 of
the Illinois Marriage and Dissolution of | ||||||
24 | Marriage Act. The court may
enforce any order for support | ||||||
25 | issued under paragraph (12) of subsection (b)
of Section | ||||||
26 | 112A-14 in the manner provided for under Parts
V and VII of the
|
| |||||||
| |||||||
1 | Illinois Marriage and Dissolution of Marriage Act.
| ||||||
2 | (d) Actual knowledge. An order of protection may be
| ||||||
3 | enforced pursuant to this Section if the respondent violates | ||||||
4 | the order
after respondent has actual knowledge of its contents
| ||||||
5 | as shown through one of the following means:
| ||||||
6 | (1) By service, delivery, or notice under Section | ||||||
7 | 112A-10.
| ||||||
8 | (2) By notice under Section 112A-11.
| ||||||
9 | (3) By service of an order of protection under Section | ||||||
10 | 112A-22.
| ||||||
11 | (4) By other means demonstrating actual knowledge of | ||||||
12 | the contents of the order.
| ||||||
13 | (e) The enforcement of an order of protection in civil or | ||||||
14 | criminal court
shall not be affected by either of the | ||||||
15 | following:
| ||||||
16 | (1) The existence of a separate, correlative order | ||||||
17 | entered under Section
112A-15.
| ||||||
18 | (2) Any finding or order entered in a conjoined | ||||||
19 | criminal proceeding.
| ||||||
20 | (f) Circumstances. The court, when determining whether or | ||||||
21 | not a
violation of an order of protection has occurred, shall | ||||||
22 | not require
physical manifestations of abuse on the person of | ||||||
23 | the victim.
| ||||||
24 | (g) Penalties.
| ||||||
25 | (1) Except as provided in paragraph (3) of this
| ||||||
26 | subsection, where the court finds the commission of a crime |
| |||||||
| |||||||
1 | or contempt of
court under subsections (a) or (b) of this | ||||||
2 | Section, the penalty shall be
the penalty that generally | ||||||
3 | applies in such criminal or contempt
proceedings, and may | ||||||
4 | include one or more of the following: incarceration,
| ||||||
5 | payment of restitution, a fine, payment of attorneys' fees | ||||||
6 | and costs, or
community service.
| ||||||
7 | (2) The court shall hear and take into account evidence | ||||||
8 | of any factors
in aggravation or mitigation before deciding | ||||||
9 | an appropriate penalty under
paragraph (1) of this | ||||||
10 | subsection.
| ||||||
11 | (3) To the extent permitted by law, the court is | ||||||
12 | encouraged to:
| ||||||
13 | (i) increase the penalty for the knowing violation | ||||||
14 | of
any order of protection over any penalty previously | ||||||
15 | imposed by any court
for respondent's violation of any | ||||||
16 | order of protection or penal statute
involving | ||||||
17 | petitioner as victim and respondent as defendant;
| ||||||
18 | (ii) impose a minimum penalty of 24 hours | ||||||
19 | imprisonment for respondent's
first violation of any | ||||||
20 | order of protection; and
| ||||||
21 | (iii) impose a minimum penalty of 48 hours | ||||||
22 | imprisonment for
respondent's second or subsequent | ||||||
23 | violation of an order of protection
| ||||||
24 | unless the court explicitly finds that an increased penalty | ||||||
25 | or that
period of imprisonment would be manifestly unjust.
| ||||||
26 | (4) In addition to any other penalties imposed for a |
| |||||||
| |||||||
1 | violation of an
order of protection, a criminal court may | ||||||
2 | consider evidence of any
violations of an order of | ||||||
3 | protection:
| ||||||
4 | (i) to increase, revoke or modify the bail bond on | ||||||
5 | an underlying
criminal charge pursuant to Section | ||||||
6 | 110-6;
| ||||||
7 | (ii) to revoke or modify an order of probation, | ||||||
8 | conditional discharge or
supervision, pursuant to | ||||||
9 | Section 5-6-4 of the Unified Code of Corrections;
| ||||||
10 | (iii) to revoke or modify a sentence of periodic | ||||||
11 | imprisonment, pursuant
to Section 5-7-2 of the Unified | ||||||
12 | Code of Corrections.
| ||||||
13 | (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
| ||||||
14 | Section 5-15. The Illinois Marriage and Dissolution of | ||||||
15 | Marriage Act is amended by changing Sections 102, 104, 105, | ||||||
16 | 107, 209, 219, 401, 402, 403, 404, 405, 409, 411, 413, 452, | ||||||
17 | 453, 501, 501.1, 502, 503, 504, 505, 505.1, 508, 510, 512, 513, | ||||||
18 | 602.3 and the heading of Part VI and by adding Sections 513.5, | ||||||
19 | 600, 601.2, 602.5, 602.7, 602.8, 602.9, 602.10, 603.5, 603.10, | ||||||
20 | 604.10, 606.5, 606.10, 607.5, 609.2, 610.5, and 612 as follows:
| ||||||
21 | (750 ILCS 5/102) (from Ch. 40, par. 102)
| ||||||
22 | Sec. 102. Purposes; Rules of Construction. This Act shall | ||||||
23 | be liberally
construed and applied to promote its underlying | ||||||
24 | purposes, which are to:
|
| |||||||
| |||||||
1 | (1) provide adequate procedures for the solemnization and | ||||||
2 | registration
of marriage;
| ||||||
3 | (2) strengthen and preserve the integrity of marriage and | ||||||
4 | safeguard family
relationships;
| ||||||
5 | (3) promote the amicable settlement of disputes that have | ||||||
6 | arisen between
parties to a marriage;
| ||||||
7 | (4) mitigate the potential harm to the spouses and their | ||||||
8 | children caused
by the process of an action brought under this | ||||||
9 | Act, and protect children from exposure to conflict and | ||||||
10 | violence legal dissolution of marriage ;
| ||||||
11 | (5) ensure predictable decision-making for the care of | ||||||
12 | children and for the allocation of parenting time and other | ||||||
13 | parental responsibilities, and avoid prolonged uncertainty by | ||||||
14 | expeditiously resolving issues involving children; | ||||||
15 | (6) recognize the right of children to a healthy | ||||||
16 | relationship with parents, and the responsibility of parents to | ||||||
17 | ensure such a relationship; | ||||||
18 | (7) acknowledge that the determination of children's best | ||||||
19 | interests, and the allocation of parenting time and significant | ||||||
20 | decision-making responsibilities, are among the paramount | ||||||
21 | responsibilities of our system of justice, and to that end: | ||||||
22 | (A) recognize children's right to a strong and healthy | ||||||
23 | relationship with parents, and parents' concomitant right | ||||||
24 | and responsibility to create and maintain such | ||||||
25 | relationships; | ||||||
26 | (B) recognize that, in the absence of domestic violence |
| |||||||
| |||||||
1 | or any other factor that the court expressly finds to be | ||||||
2 | relevant, proximity to, and frequent contact with, both | ||||||
3 | parents promotes healthy development of children; | ||||||
4 | (C) facilitate parental planning and agreement about | ||||||
5 | the children's upbringing and allocation of parenting time | ||||||
6 | and other parental responsibilities; | ||||||
7 | (D) continue existing parent-child relationships, and | ||||||
8 | secure the maximum involvement and cooperation of parents | ||||||
9 | regarding the physical, mental, moral, and emotional | ||||||
10 | well-being of the children during and after the litigation; | ||||||
11 | and | ||||||
12 | (E) promote or order parents to participate in programs | ||||||
13 | designed to educate parents to: | ||||||
14 | (i) minimize or eliminate rancor and the | ||||||
15 | detrimental effect of litigation in any proceeding | ||||||
16 | involving children; and | ||||||
17 | (ii) facilitate the maximum cooperation of parents | ||||||
18 | in raising their children;
| ||||||
19 | (8)
(5) make reasonable provision for support spouses and | ||||||
20 | minor children during and
after an underlying dissolution of | ||||||
21 | marriage, legal separation, parentage, or parental | ||||||
22 | responsibility allocation action litigation , including | ||||||
23 | provision for timely advances awards of interim fees and costs | ||||||
24 | to all attorneys, experts, and opinion witnesses including | ||||||
25 | guardians ad litem and children's representatives, to
achieve | ||||||
26 | substantial parity in parties' access to funds for pre-judgment |
| |||||||
| |||||||
1 | litigation costs in an action for dissolution of marriage ;
| ||||||
2 | (9)
(6) eliminate the consideration of marital misconduct | ||||||
3 | in the adjudication
of rights and duties incident to the legal
| ||||||
4 | dissolution of marriage, legal
separation and declaration of | ||||||
5 | invalidity of marriage; and
| ||||||
6 | (7) secure the maximum involvement and cooperation of both | ||||||
7 | parents regarding
the physical, mental, moral and emotional | ||||||
8 | well-being of the children during
and after the litigation; and
| ||||||
9 | (10)
(8) make provision for the preservation and | ||||||
10 | conservation of marital assets
during the litigation.
| ||||||
11 | (Source: P.A. 89-712, eff. 6-1-97.)
| ||||||
12 | (750 ILCS 5/104) (from Ch. 40, par. 104)
| ||||||
13 | Sec. 104.
Venue. ) The proceedings shall be had in the | ||||||
14 | county
where the plaintiff or defendant resides,
except as | ||||||
15 | otherwise
provided herein, but process may be directed to any | ||||||
16 | county in
the State. Objection to venue is barred if not made | ||||||
17 | within
such time as the defendant's response is
due. In no | ||||||
18 | event shall venue be deemed jurisdictional.
| ||||||
19 | In any case brought pursuant to this Act where neither the | ||||||
20 | petitioner nor respondent resides in the county in which the | ||||||
21 | initial pleading is filed, the petitioner shall file with the | ||||||
22 | initial pleading a written motion, which shall be set for | ||||||
23 | hearing and ruled upon before any other issue is taken up, | ||||||
24 | advising that the forum selected is not one of proper venue and | ||||||
25 | seeking an appropriate order from the court allowing a waiver |
| |||||||
| |||||||
1 | of the venue requirements of this Section. | ||||||
2 | (Source: P.A. 82-716.)
| ||||||
3 | (750 ILCS 5/105) (from Ch. 40, par. 105)
| ||||||
4 | Sec. 105.
Application of Civil Practice Law. )
(a) The | ||||||
5 | provisions
of the Civil Practice Law shall apply to all | ||||||
6 | proceedings under
this Act, except as otherwise provided in | ||||||
7 | this Act.
| ||||||
8 | (b) A proceeding for dissolution of marriage, legal | ||||||
9 | separation
or declaration of invalidity of marriage shall be | ||||||
10 | entitled "In re
the Marriage of ... and ...". A parental | ||||||
11 | responsibility allocation custody or support proceeding shall
| ||||||
12 | be entitled "In re the ( Parental Responsibility Custody ) | ||||||
13 | (Support) of ...".
| ||||||
14 | (c) The initial pleading in all proceedings under this Act | ||||||
15 | shall
be denominated a petition. A responsive pleading shall be | ||||||
16 | denominated
a response. If new matter by way of defense is | ||||||
17 | pleaded in the response, a reply may be filed by the | ||||||
18 | petitioner, but the failure to reply is not an admission of the | ||||||
19 | legal sufficiency of the new matter. All other pleadings under | ||||||
20 | this Act shall be denominated as
provided in the Civil Practice | ||||||
21 | Law.
| ||||||
22 | (d) As used in this Section, "pleadings" includes any | ||||||
23 | petition or motion filed in the dissolution of marriage case | ||||||
24 | which, if independently filed, would constitute a separate | ||||||
25 | cause of action, including, but not limited to, actions for |
| |||||||
| |||||||
1 | declaratory judgment, injunctive relief, and orders of | ||||||
2 | protection. Actions under this subsection are subject to | ||||||
3 | motions filed pursuant to Sections 2-615 and 2-619 of the Code | ||||||
4 | of Civil Procedure. | ||||||
5 | (Source: P.A. 82-783.)
| ||||||
6 | (750 ILCS 5/107) (from Ch. 40, par. 107)
| ||||||
7 | Sec. 107. Order of protection; status. Whenever relief is | ||||||
8 | sought under
Part V, Part VI or Part VII of this Act, the court | ||||||
9 | should inquire and parties shall advise the court , before | ||||||
10 | granting relief,
shall determine whether any order of | ||||||
11 | protection has previously been entered
in the instant | ||||||
12 | proceeding or any other proceeding in which any party, or a
| ||||||
13 | child of any party, or both, if relevant, has been designated | ||||||
14 | as either a petitioner,
respondent , or a protected person.
| ||||||
15 | (Source: P.A. 87-743.)
| ||||||
16 | (750 ILCS 5/209) (from Ch. 40, par. 209)
| ||||||
17 | (Text of Section after amendment by P.A. 98-597 )
| ||||||
18 | Sec. 209. Solemnization and Registration. ) | ||||||
19 | (a) A marriage may be solemnized by a judge of a court of | ||||||
20 | record, by a
retired judge of a court of record, unless the | ||||||
21 | retired judge was removed from
office by the Judicial Inquiry | ||||||
22 | Board, except that a retired judge shall not
receive any | ||||||
23 | compensation from the State, a county or any unit of local
| ||||||
24 | government in return for the solemnization of a marriage and |
| |||||||
| |||||||
1 | there shall be no
effect upon any pension benefits conferred by | ||||||
2 | the Judges Retirement System of
Illinois, by a judge of the | ||||||
3 | Court of Claims, by a county clerk in counties
having 2,000,000 | ||||||
4 | or more inhabitants, by a public official whose powers include
| ||||||
5 | solemnization of marriages, or in accordance with the | ||||||
6 | prescriptions of any
religious denomination, Indian Nation or | ||||||
7 | Tribe or Native Group, provided that
when such prescriptions | ||||||
8 | require an officiant, the officiant be in good standing
with | ||||||
9 | his or her religious denomination, Indian Nation or Tribe or | ||||||
10 | Native Group.
Either the person solemnizing the marriage, or, | ||||||
11 | if no individual acting alone
solemnized the marriage, both | ||||||
12 | parties to the marriage, shall complete the
marriage | ||||||
13 | certificate form and forward it to the county clerk within 10 | ||||||
14 | days
after such marriage is solemnized.
| ||||||
15 | (a-5) Nothing in this Act shall be construed to require any | ||||||
16 | religious denomination or Indian Nation or Tribe or Native | ||||||
17 | Group, or any minister, clergy, or officiant acting as a | ||||||
18 | representative of a religious denomination or Indian Nation or | ||||||
19 | Tribe or Native Group, to solemnize any marriage. Instead, any | ||||||
20 | religious denomination or Indian Nation or Tribe or Native | ||||||
21 | Group, or any minister, clergy, or officiant acting as a | ||||||
22 | representative of a religious denomination or Indian Nation or | ||||||
23 | Tribe or Native Group is free to choose which marriages it will | ||||||
24 | solemnize. Notwithstanding any other law to the contrary, a | ||||||
25 | refusal by a religious denomination or Indian Nation or Tribe | ||||||
26 | or Native Group, or any minister, clergy, or officiant acting |
| |||||||
| |||||||
1 | as a representative of a religious denomination or Indian | ||||||
2 | Nation or Tribe or Native Group to solemnize any marriage under | ||||||
3 | this Act shall not create or be the basis for any civil, | ||||||
4 | administrative, or criminal penalty, claim, or cause of action. | ||||||
5 | (a-10) No church, mosque, synagogue, temple, | ||||||
6 | nondenominational ministry, interdenominational or ecumenical | ||||||
7 | organization, mission organization, or other organization | ||||||
8 | whose principal purpose is the study, practice, or advancement | ||||||
9 | of religion is required to provide religious facilities for the | ||||||
10 | solemnization ceremony or celebration associated with the | ||||||
11 | solemnization ceremony of a marriage if the solemnization | ||||||
12 | ceremony or celebration associated with the solemnization | ||||||
13 | ceremony is in violation of its religious beliefs. An entity | ||||||
14 | identified in this subsection (a-10) shall be immune from any | ||||||
15 | civil, administrative, criminal penalty, claim, or cause of | ||||||
16 | action based on its refusal to provide religious facilities for | ||||||
17 | the solemnization ceremony or celebration associated with the | ||||||
18 | solemnization ceremony of a marriage if the solemnization | ||||||
19 | ceremony or celebration associated with the solemnization | ||||||
20 | ceremony is in violation of its religious beliefs. As used in | ||||||
21 | this subsection (a-10), "religious facilities" means | ||||||
22 | sanctuaries, parish halls, fellowship halls, and similar | ||||||
23 | facilities. "Religious facilities" does not include facilities | ||||||
24 | such as businesses, health care facilities, educational | ||||||
25 | facilities, or social service agencies. | ||||||
26 | (b) The solemnization of the marriage is not invalidated : |
| |||||||
| |||||||
1 | (1) by the
fact that the person solemnizing the marriage was | ||||||
2 | not legally qualified
to solemnize it, if a reasonable person | ||||||
3 | would believe the person solemnizing the marriage to be so | ||||||
4 | qualified; if either party to the marriage believed him or her | ||||||
5 | to be so
qualified or (2) by the fact that the marriage was | ||||||
6 | inadvertently solemnized in a county in Illinois other than the | ||||||
7 | county where the license was issued and filed .
| ||||||
8 | (c) Any marriage that meets the requirements of this | ||||||
9 | Section shall be presumed valid. | ||||||
10 | (Source: P.A. 98-597, eff. 6-1-14.)
| ||||||
11 | (750 ILCS 5/219) (from Ch. 40, par. 219)
| ||||||
12 | Sec. 219.
Offenses. ) Any official issuing a license with
| ||||||
13 | knowledge that the parties are thus prohibited from marrying | ||||||
14 | intermarrying
and any person authorized to celebrate marriage | ||||||
15 | who shall knowingly
celebrate such a marriage shall be guilty | ||||||
16 | of a Class B misdemeanor petty offense .
| ||||||
17 | (Source: P.A. 80-923.)
| ||||||
18 | (750 ILCS 5/401) (from Ch. 40, par. 401)
| ||||||
19 | Sec. 401. Dissolution of marriage.
| ||||||
20 | (a) The court shall enter a judgment of dissolution of | ||||||
21 | marriage when if at
the time the action was commenced one of | ||||||
22 | the spouses was a resident of this
State or was stationed in | ||||||
23 | this State while a member of the armed services,
and the | ||||||
24 | residence or military presence had been maintained for 90 days |
| |||||||
| |||||||
1 | next
preceding the commencement of the action or the making of | ||||||
2 | the finding : | ||||||
3 | Irreconcilable differences have caused the irretrievable | ||||||
4 | breakdown of the marriage and the court determines that efforts | ||||||
5 | at reconciliation have failed or that future attempts at | ||||||
6 | reconciliation would be impracticable and not in the best | ||||||
7 | interests of the family. | ||||||
8 | (a-5) If the parties are separated for 6 consecutive | ||||||
9 | months, which period may commence prior to or after the filing | ||||||
10 | of an action for dissolution of marriage under this Act, there | ||||||
11 | is an irrebuttable presumption that the requirement of | ||||||
12 | irreconcilable differences has been met. ;
provided, however, | ||||||
13 | that a finding of residence of a party in any judgment
entered | ||||||
14 | under this Act from January 1, 1982 through June 30, 1982 shall
| ||||||
15 | satisfy the former domicile requirements of this Act; and if | ||||||
16 | one of the
following grounds for dissolution has been proved:
| ||||||
17 | (1) That, without cause or provocation by the
| ||||||
18 | petitioner: the respondent was at the time of such | ||||||
19 | marriage, and
continues to be naturally impotent; the | ||||||
20 | respondent had a wife
or husband living at the time of the | ||||||
21 | marriage; the respondent
had committed adultery subsequent | ||||||
22 | to the marriage; the respondent has wilfully
deserted or | ||||||
23 | absented himself or herself from the petitioner for the | ||||||
24 | space
of one year, including any period during which | ||||||
25 | litigation may have pended
between the spouses for | ||||||
26 | dissolution of marriage or legal separation; the
|
| |||||||
| |||||||
1 | respondent has been guilty of habitual drunkenness for the | ||||||
2 | space of 2
years; the respondent has been guilty of gross | ||||||
3 | and confirmed habits caused
by the excessive use of | ||||||
4 | addictive drugs for the space of 2 years, or has
attempted | ||||||
5 | the life of the other by poison or other means showing | ||||||
6 | malice, or
has been guilty of extreme and repeated physical | ||||||
7 | or mental cruelty, or has
been convicted of a felony or | ||||||
8 | other infamous crime; or the respondent has
infected the | ||||||
9 | other with a sexually transmitted
disease. "Excessive use | ||||||
10 | of
addictive drugs", as used in this Section, refers to use | ||||||
11 | of an addictive
drug by a person when using the drug | ||||||
12 | becomes a controlling or a dominant
purpose of his life; or
| ||||||
13 | (2) That the spouses have lived separate and apart for | ||||||
14 | a continuous
period in excess of 2 years and irreconcilable | ||||||
15 | differences have caused the
irretrievable breakdown of the | ||||||
16 | marriage and the court determines that
efforts at | ||||||
17 | reconciliation have failed or that future attempts at
| ||||||
18 | reconciliation would be impracticable and not in the best | ||||||
19 | interests of the
family. If the spouses have lived separate | ||||||
20 | and apart for a continuous
period of not less than 6 months | ||||||
21 | next preceding the entry of the judgment
dissolving the | ||||||
22 | marriage, as evidenced by testimony or affidavits of the
| ||||||
23 | spouses, the requirement of living separate and apart for a | ||||||
24 | continuous
period in excess of 2 years may be waived upon | ||||||
25 | written stipulation of both
spouses filed with the court. | ||||||
26 | At any time after the parties cease to
cohabit, the |
| |||||||
| |||||||
1 | following periods shall be included in the period of | ||||||
2 | separation:
| ||||||
3 | (A) any period of cohabitation during which the | ||||||
4 | parties attempted in
good faith to reconcile and | ||||||
5 | participated in marriage counseling under the
guidance | ||||||
6 | of any of the following: a psychiatrist, a clinical | ||||||
7 | psychologist,
a clinical social worker, a marriage and | ||||||
8 | family therapist, a person
authorized to provide | ||||||
9 | counseling in accordance with the prescriptions of
any | ||||||
10 | religious denomination, or a person regularly engaged | ||||||
11 | in providing
family or marriage counseling; and
| ||||||
12 | (B) any period of cohabitation under written | ||||||
13 | agreement of the
parties to attempt to reconcile.
| ||||||
14 | In computing the period during which the spouses have lived
| ||||||
15 | separate and apart for purposes of this Section, periods during
| ||||||
16 | which the spouses were living separate and apart prior to
July | ||||||
17 | 1, 1984 are included.
| ||||||
18 | (b) Judgment shall not be entered unless, to the extent it
| ||||||
19 | has jurisdiction to do so, the court has considered, approved, | ||||||
20 | reserved
or made provision for the allocation of parental | ||||||
21 | responsibilities child custody , the support of any child of the
| ||||||
22 | marriage entitled to support, the maintenance of either spouse | ||||||
23 | and
the disposition of property. The court shall may enter a | ||||||
24 | judgment for dissolution
that reserves any of these issues | ||||||
25 | either upon (i) agreement of the
parties, or (ii) motion of | ||||||
26 | either party and a finding by the
court that appropriate |
| |||||||
| |||||||
1 | circumstances exist.
| ||||||
2 | The death of a party subsequent to entry of a judgment for | ||||||
3 | dissolution
but before judgment on reserved issues shall not | ||||||
4 | abate the proceedings.
| ||||||
5 | If any provision of this Section or its application shall | ||||||
6 | be adjudged
unconstitutional or invalid for any reason by any | ||||||
7 | court of competent
jurisdiction, that judgment shall not | ||||||
8 | impair, affect or invalidate any
other provision or application | ||||||
9 | of this Section, which shall remain in full
force and effect.
| ||||||
10 | (Source: P.A. 89-187, eff. 7-19-95.)
| ||||||
11 | (750 ILCS 5/402) (from Ch. 40, par. 402)
| ||||||
12 | Sec. 402. Legal Separation. ) | ||||||
13 | (a) Any person living separate and apart from his or her | ||||||
14 | spouse without
fault may have a remedy for reasonable support | ||||||
15 | and maintenance while they so live apart.
| ||||||
16 | (b) Such action shall be brought in the circuit court of | ||||||
17 | the county in
which the petitioner or respondent resides or in | ||||||
18 | which the parties last resided together
as husband and wife. In | ||||||
19 | the event the respondent cannot be found within
the State, the | ||||||
20 | action may be brought in the circuit court of the county
in | ||||||
21 | which the petitioner resides. Commencement of the action, | ||||||
22 | temporary
relief and trials shall be the same as in actions for | ||||||
23 | dissolution of marriage , except that temporary relief in an | ||||||
24 | action for legal separation shall be limited to the relief set | ||||||
25 | forth in subdivision (a)(1) and items (ii), (iii), and (iv) of |
| |||||||
| |||||||
1 | subdivision (a)(2) of Section 501. If the court deems it | ||||||
2 | appropriate to enter a judgment for legal separation, the court | ||||||
3 | shall consider the applicable factors in Section 504 in | ||||||
4 | awarding maintenance. If the court deems it appropriate to | ||||||
5 | enter a judgment for legal separation, the court may approve a | ||||||
6 | property settlement agreement that the parties have requested | ||||||
7 | the court to incorporate into the judgment, subject to the | ||||||
8 | following provisions: . | ||||||
9 | (1) the court may not value or allocate property in the | ||||||
10 | absence of such an agreement; | ||||||
11 | (2) the court may disapprove such an agreement only if | ||||||
12 | it finds that the agreement is unconscionable; and | ||||||
13 | (3) such an agreement is final and non-modifiable.
| ||||||
14 | (c) A proceeding or judgment for legal separation shall not | ||||||
15 | bar either
party from instituting an action for dissolution of | ||||||
16 | marriage, and if the
party so moving has met the requirements | ||||||
17 | of Section 401, a judgment for
dissolution shall be granted. | ||||||
18 | Absent an agreement set forth in a separation agreement that | ||||||
19 | provides for non-modifiable permanent maintenance, if a party | ||||||
20 | to a judgment for legal separation files an action for | ||||||
21 | dissolution of marriage, the issues of temporary and permanent | ||||||
22 | maintenance shall be decided de novo.
| ||||||
23 | (Source: P.A. 82-716.)
| ||||||
24 | (750 ILCS 5/403) (from Ch. 40, par. 403)
| ||||||
25 | Sec. 403.
Pleadings - Commencement - Abolition of Existing |
| |||||||
| |||||||
1 | Defenses
- Procedure. )
| ||||||
2 | (a) The complaint or petition for dissolution of marriage | ||||||
3 | or legal
separation shall be verified and shall minimally set | ||||||
4 | forth:
| ||||||
5 | (1) the age, occupation and residence of each party and | ||||||
6 | his length
of residence in this State;
| ||||||
7 | (2) the date of the marriage and the place at which it | ||||||
8 | was
registered;
| ||||||
9 | (2.5) whether a petition for dissolution of marriage is | ||||||
10 | pending in
any other county or state;
| ||||||
11 | (3) that the jurisdictional requirements of subsection | ||||||
12 | (a) of
Section 401 have been met and that irreconcilable | ||||||
13 | differences have caused the irretrievable breakdown of the | ||||||
14 | marriage; and that there exist grounds for dissolution of
| ||||||
15 | marriage or legal separation. The petitioner need only | ||||||
16 | allege the name
of the particular grounds relied upon, | ||||||
17 | which shall constitute a legally
sufficient allegation of | ||||||
18 | the grounds; and the respondent shall be
entitled to demand | ||||||
19 | a bill of particulars prior to trial setting forth
the | ||||||
20 | facts constituting the grounds, if he so chooses. The | ||||||
21 | petition must
also contain:
| ||||||
22 | (4) the names, ages and addresses of all living | ||||||
23 | children of the
marriage , and whether the wife is pregnant , | ||||||
24 | and, if there are children born of the marriage, the wife | ||||||
25 | shall allege whether she believes the husband is the father | ||||||
26 | of the children ;
|
| |||||||
| |||||||
1 | (5) any arrangements as to support, allocation of | ||||||
2 | parental responsibility, and parenting time custody and | ||||||
3 | visitation of the
children and maintenance of a spouse; and
| ||||||
4 | (6) the relief sought.
| ||||||
5 | (b) Either or both parties to the marriage may initiate the
| ||||||
6 | proceeding.
| ||||||
7 | (c) (Blank). The previously existing defense of | ||||||
8 | recrimination is abolished.
The defense of condonation is | ||||||
9 | abolished only as to condonations
occurring after a proceeding | ||||||
10 | is filed under this Act and after the
court has acquired | ||||||
11 | jurisdiction over the respondent.
| ||||||
12 | (d) The court may join additional parties necessary and | ||||||
13 | proper for
the exercise of its authority under this Act.
| ||||||
14 | (e) Contested trials shall be on a bifurcated basis with | ||||||
15 | the issue of whether irreconcilable differences have caused the | ||||||
16 | irretrievable breakdown of the marriage, as described in | ||||||
17 | Section 401, grounds
being tried first , regardless of whether | ||||||
18 | that issue is contested or uncontested . Upon the court | ||||||
19 | determining that irreconcilable differences have caused the | ||||||
20 | irretrievable breakdown of the marriage the grounds exist ,
the | ||||||
21 | court may allow additional time for the
parties to settle
| ||||||
22 | amicably the remaining issues before resuming the trial, or may
| ||||||
23 | proceed immediately to trial on the
remaining issues. The court | ||||||
24 | has the discretion to use the date of the trial or such other | ||||||
25 | date as agreed upon by the parties, or ordered by the court | ||||||
26 | within its discretion, for purposes of determining the value of |
| |||||||
| |||||||
1 | assets or property. In cases where the requirements of Section | ||||||
2 | 401 the grounds are uncontested and proved
as in cases of | ||||||
3 | default, the trial on all other remaining issues shall proceed
| ||||||
4 | immediately, if so ordered by the court or if the parties so | ||||||
5 | stipulate ,
issue on the pleadings notwithstanding . Except as | ||||||
6 | provided in Section 401, the court shall enter a judgment of | ||||||
7 | dissolution of marriage, including an order dissolving the | ||||||
8 | marriage, incorporation of a marital settlement agreement if | ||||||
9 | applicable, and any other appropriate findings or orders, only | ||||||
10 | at the conclusion of the case and not after hearing only the | ||||||
11 | testimony as to whether irreconcilable differences have caused | ||||||
12 | the irretrievable breakdown of the marriage.
| ||||||
13 | (f) (Blank). Even if no bill of particulars shall have been | ||||||
14 | filed demanding
the specification of the particular facts | ||||||
15 | underlying the allegation of
the grounds, the court shall | ||||||
16 | nonetheless require proper and sufficient
proof of the | ||||||
17 | existence of the grounds.
| ||||||
18 | (Source: P.A. 90-174, eff. 10-1-97.)
| ||||||
19 | (750 ILCS 5/404) (from Ch. 40, par. 404)
| ||||||
20 | Sec. 404. Conciliation ; mediation .
| ||||||
21 | (a) If the court concludes that there is a prospect of | ||||||
22 | reconciliation, the
court, at the request of either party, or | ||||||
23 | on its own motion, may order a
conciliation conference. The | ||||||
24 | conciliation conference and counseling shall take
place at the | ||||||
25 | established court conciliation service of that judicial |
| |||||||
| |||||||
1 | district
or at any similar service or facility where no court | ||||||
2 | conciliation service has
been established.
| ||||||
3 | (b) The facts adduced at any conciliation conference | ||||||
4 | resulting from a
referral hereunder, shall not be considered in | ||||||
5 | the adjudication of a pending
or subsequent action, nor shall | ||||||
6 | any report resulting from such conference
become part of the | ||||||
7 | record of the case unless the parties have stipulated
in | ||||||
8 | writing to the contrary.
| ||||||
9 | The court, upon good cause shown, may prohibit | ||||||
10 | conciliation , mediation or
other process that requires the | ||||||
11 | parties to meet and confer without counsel.
| ||||||
12 | (Source: P.A. 87-1255.)
| ||||||
13 | (750 ILCS 5/405) (from Ch. 40, par. 405)
| ||||||
14 | Sec. 405.
Hearing on Default - Notice. ) If the respondent | ||||||
15 | is in default,
the court shall proceed to hear the cause upon | ||||||
16 | testimony of petitioner taken
in open court, and in no case of | ||||||
17 | default shall the court grant a dissolution
of marriage or | ||||||
18 | legal separation or declaration of invalidity of marriage,
| ||||||
19 | unless the judge is satisfied that all proper means have been | ||||||
20 | taken to notify
the respondent of the pendency of the suit. | ||||||
21 | Whenever the judge is satisfied
that the interests of the | ||||||
22 | respondent require it, the court may order such
additional | ||||||
23 | notice as may be required. All of the provisions of the Code of | ||||||
24 | Civil Procedure relating to default hearings are applicable to | ||||||
25 | hearings on default.
|
| |||||||
| |||||||
1 | (Source: P.A. 80-923.)
| ||||||
2 | (750 ILCS 5/409) (from Ch. 40, par. 409)
| ||||||
3 | Sec. 409.
Proof of Foreign Marriage. ) A marriage which may | ||||||
4 | have been
celebrated or had in any
foreign state or country, | ||||||
5 | may be proved by the acknowledgment of the parties,
their | ||||||
6 | cohabitation, and
other evidence. Certified copies of records | ||||||
7 | of a marriage performed in any foreign state or country | ||||||
8 | obtained from an embassy or consulate may be admitted as an | ||||||
9 | exception to the hearsay rule circumstantial testimony .
| ||||||
10 | (Source: P.A. 80-923.)
| ||||||
11 | (750 ILCS 5/411) (from Ch. 40, par. 411)
| ||||||
12 | Sec. 411.
Commencement of Action. ) (a) Actions for | ||||||
13 | dissolution of
marriage or legal separation shall be commenced | ||||||
14 | as in other civil cases or,
at the option of petitioner, by | ||||||
15 | filing a praecipe for summons with the
clerk of the court and | ||||||
16 | paying the regular filing fees, in which latter
case, a | ||||||
17 | petition shall be filed within 6 months thereafter , or any | ||||||
18 | extension for
good cause shown granted by the court .
| ||||||
19 | (b) When a praecipe for summons is filed without the | ||||||
20 | petition, the summons
shall recite that petitioner has | ||||||
21 | commenced suit for dissolution of marriage
or legal separation | ||||||
22 | and shall require the respondent to file his or her
appearance | ||||||
23 | not later than 30 days from the day the summons is served and | ||||||
24 | to
plead to the petitioner's petition within 30 days from the |
| |||||||
| |||||||
1 | day the petition is filed.
| ||||||
2 | Until a petition has been filed, the court, pursuant to | ||||||
3 | subsections (c)
and (d) herein, may dismiss the suit, order the | ||||||
4 | filing of a petition,
or grant leave to the respondent to file | ||||||
5 | a petition in the nature of a
counter petition.
| ||||||
6 | After the filing of the petition, the party filing the same | ||||||
7 | shall, within
2 days, serve a copy thereof upon the other | ||||||
8 | party, in the manner provided
by rule of the Supreme Court for | ||||||
9 | service of notices in other civil cases.
| ||||||
10 | (c) Unless a respondent voluntarily files an appearance, a | ||||||
11 | praecipe
for summons filed without the petition shall be served | ||||||
12 | on the respondent
not later than 30 days after its issuance, | ||||||
13 | and upon failure to obtain
service upon the respondent within | ||||||
14 | the 30 day period, or any extension for
good cause shown | ||||||
15 | granted by the court, the court shall dismiss the suit.
| ||||||
16 | (d) An action for dissolution of marriage or legal | ||||||
17 | separation
commenced by the filing a praecipe for summons | ||||||
18 | without the petition may shall
be dismissed if unless a | ||||||
19 | petition for dissolution of marriage or legal
separation has | ||||||
20 | not been filed within 6 months after the commencement of the | ||||||
21 | action.
| ||||||
22 | (e) The filing of a praecipe for summons under this Section | ||||||
23 | constitutes the commencement of an action that serves as | ||||||
24 | grounds for involuntary dismissal under subdivision (a)(3) of | ||||||
25 | Section 2-619 of the Code of Civil Procedure of a subsequently | ||||||
26 | filed petition for dissolution of marriage or legal
separation |
| |||||||
| |||||||
1 | in another county. | ||||||
2 | (Source: P.A. 86-630.)
| ||||||
3 | (750 ILCS 5/413) (from Ch. 40, par. 413)
| ||||||
4 | Sec. 413. Judgment. ) | ||||||
5 | (a) A judgment of dissolution
of marriage or of legal | ||||||
6 | separation or of declaration of invalidity of marriage shall be | ||||||
7 | entered within 60 days of the closing of proofs; however, if | ||||||
8 | the court enters an order specifying good cause as to why the | ||||||
9 | court needs an additional 30 days, the judgment shall be | ||||||
10 | entered within 90 days of the closing of proofs, including any | ||||||
11 | hearing under subsection (j) of Section 503 of this Act and | ||||||
12 | submission of closing arguments. A judgment of dissolution
of | ||||||
13 | marriage or of legal separation or of declaration of invalidity | ||||||
14 | of marriage is final
when entered, subject to the right of | ||||||
15 | appeal. An appeal from the judgment
of dissolution of marriage | ||||||
16 | that does not challenge the finding as to grounds
does not | ||||||
17 | delay the finality
of that provision of the judgment which | ||||||
18 | dissolves the marriage, beyond the time for
appealing from that | ||||||
19 | provision, and either of the parties may remarry pending | ||||||
20 | appeal.
An order requiring maintenance or support of a spouse
| ||||||
21 | or a minor
child or children entered under this Act or any | ||||||
22 | other law of this State shall not be suspended or the | ||||||
23 | enforcement thereof stayed pending
the filing and resolution of | ||||||
24 | post-judgment motions or an appeal.
| ||||||
25 | (b) The clerk of the court shall give notice of the entry |
| |||||||
| |||||||
1 | of a judgment of dissolution
of marriage or legal separation or | ||||||
2 | a declaration of invalidity of marriage:
| ||||||
3 | (1) if the marriage is registered in this State, to the | ||||||
4 | county clerk of the county
where the marriage is | ||||||
5 | registered, who shall enter the fact of dissolution
of | ||||||
6 | marriage or legal
separation or declaration of invalidity | ||||||
7 | of marriage in the marriage registry;
and within 45 days | ||||||
8 | after the close
of the month in which the judgment is | ||||||
9 | entered, the
clerk shall forward
the certificate to the | ||||||
10 | Department of Public Health on a form furnished by the
| ||||||
11 | Department; or
| ||||||
12 | (2) if the marriage is registered in another | ||||||
13 | jurisdiction, to the
appropriate official of that | ||||||
14 | jurisdiction, with the request that he enter the fact of
| ||||||
15 | dissolution of marriage or legal separation or declaration | ||||||
16 | of invalidity
of marriage in the appropriate record.
| ||||||
17 | (c) Upon request by a wife whose marriage is dissolved or | ||||||
18 | declared
invalid, the court shall order her maiden name or a | ||||||
19 | former name restored.
| ||||||
20 | (d) A judgment of dissolution of marriage or legal | ||||||
21 | separation, if made, shall
be awarded to both of the parties, | ||||||
22 | and shall provide that it affects the
status previously
| ||||||
23 | existing between the parties in the manner adjudged.
| ||||||
24 | (Source: P.A. 96-1072, eff. 1-1-11.)
| ||||||
25 | (750 ILCS 5/452)
|
| |||||||
| |||||||
1 | Sec. 452. Petition. The parties to a dissolution proceeding | ||||||
2 | may file a
joint petition for simplified dissolution if they | ||||||
3 | certify that all of the
following conditions exist when the | ||||||
4 | proceeding is commenced:
| ||||||
5 | (a) Neither party is dependent on the other party for | ||||||
6 | support or each
party is willing to waive the right to | ||||||
7 | support; and the parties understand
that consultation with | ||||||
8 | attorneys may help them determine eligibility for
spousal | ||||||
9 | support.
| ||||||
10 | (b) Either party has met the residency requirement of | ||||||
11 | Section 401 of this
Act.
| ||||||
12 | (c) The requirements of Section 401 regarding | ||||||
13 | residence or military presence and proof of irreconcilable | ||||||
14 | differences have been met. Irreconcilable differences have | ||||||
15 | caused the irretrievable breakdown
of the marriage and the | ||||||
16 | parties have been separated 6 months or more and
efforts at | ||||||
17 | reconciliation have failed or future attempts at | ||||||
18 | reconciliation
would be impracticable and not in the best | ||||||
19 | interests of the family.
| ||||||
20 | (d) No children were born of the relationship of the | ||||||
21 | parties or
adopted by the parties during the marriage, and | ||||||
22 | the wife, to her knowledge,
is not pregnant by the husband.
| ||||||
23 | (e) The duration of the marriage does not exceed 8 | ||||||
24 | years.
| ||||||
25 | (f) Neither party has any interest in real property or | ||||||
26 | retirement benefits unless the retirement benefits are |
| |||||||
| |||||||
1 | exclusively held in individual retirement accounts and the | ||||||
2 | combined value of the accounts is less than $10,000 .
| ||||||
3 | (g) The parties waive any rights to maintenance.
| ||||||
4 | (h) The total fair market value of all marital | ||||||
5 | property, after
deducting all encumbrances, is less than | ||||||
6 | $50,000 $10,000 , the
combined gross annualized income from | ||||||
7 | all sources is less than
$60,000 $35,000 , and neither party | ||||||
8 | has a gross annualized income from all sources
in excess of | ||||||
9 | $30,000 $20,000 .
| ||||||
10 | (i) The parties have disclosed to each other all assets | ||||||
11 | and liabilities and their tax
returns for all years of the | ||||||
12 | marriage.
| ||||||
13 | (j) The parties have executed a written agreement | ||||||
14 | dividing all assets
in excess of $100 in value and | ||||||
15 | allocating responsibility for debts and
liabilities | ||||||
16 | between the parties.
| ||||||
17 | (Source: P.A. 90-731, eff. 7-1-99.)
| ||||||
18 | (750 ILCS 5/453)
| ||||||
19 | Sec. 453. Procedure; Judgment. The parties shall use the | ||||||
20 | forms , including a form for the affidavit required under | ||||||
21 | Section
454,
provided by the circuit court clerk, and the clerk | ||||||
22 | shall submit the
petition to the court. The court shall | ||||||
23 | expeditiously consider the cause.
Both parties shall appear in | ||||||
24 | person before the court and, if the court so
directs, testify. | ||||||
25 | The court, after examination of the petition and the parties
|
| |||||||
| |||||||
1 | and finding the agreement of the parties not unconscionable, | ||||||
2 | shall enter a
judgment granting the dissolution if the | ||||||
3 | requirements of this Part IV-A have
been met and the parties | ||||||
4 | have submitted the affidavit required under Section
454. No | ||||||
5 | transcript of proceedings shall be required.
| ||||||
6 | (Source: P.A. 88-39.)
| ||||||
7 | (750 ILCS 5/501) (from Ch. 40, par. 501)
| ||||||
8 | Sec. 501. Temporary Relief. ) In all proceedings under this | ||||||
9 | Act,
temporary relief shall be as follows:
| ||||||
10 | (a) Either party may petition or move for:
| ||||||
11 | (1) temporary maintenance or temporary support of a | ||||||
12 | child of the
marriage entitled to support, accompanied by | ||||||
13 | an affidavit as to the
factual basis for the relief | ||||||
14 | requested . One form of financial affidavit, as determined | ||||||
15 | by the Supreme Court, shall be used statewide. The | ||||||
16 | financial affidavit shall be supported by documentary | ||||||
17 | evidence including, but not limited to, income tax returns, | ||||||
18 | pay stubs, and banking statements. Unless the court | ||||||
19 | otherwise directs, any affidavit or supporting documentary | ||||||
20 | evidence submitted pursuant
to this paragraph shall not be | ||||||
21 | made
part of the public record of the proceedings but shall | ||||||
22 | be available to
the court or an appellate court in which | ||||||
23 | the proceedings are subject to
review, to the parties, | ||||||
24 | their
attorneys, and such other persons as the court
may | ||||||
25 | direct. Upon motion of a party, a court may hold a hearing |
| |||||||
| |||||||
1 | to determine whether and why there is a disparity between a | ||||||
2 | party's sworn affidavit and the supporting documentation. | ||||||
3 | If a party intentionally or recklessly files an inaccurate | ||||||
4 | or misleading financial affidavit, the court shall impose | ||||||
5 | significant penalties and sanctions including, but not | ||||||
6 | limited to, costs and attorney's fees ;
| ||||||
7 | (2) a temporary restraining order or preliminary | ||||||
8 | injunction, accompanied
by affidavit showing a
factual | ||||||
9 | basis for any of the following relief:
| ||||||
10 | (i) restraining any person from transferring, | ||||||
11 | encumbering,
concealing or otherwise disposing of any | ||||||
12 | property except in the usual
course of business or for | ||||||
13 | the necessities of life, and, if so
restrained, | ||||||
14 | requiring him to notify the moving party and his | ||||||
15 | attorney of
any proposed extraordinary expenditures | ||||||
16 | made after the order is issued; however, an order need | ||||||
17 | not include an exception for transferring, | ||||||
18 | encumbering,
or otherwise disposing of property in the | ||||||
19 | usual course of business or for the necessities of life | ||||||
20 | if the court enters appropriate orders that enable the | ||||||
21 | parties to pay their necessary
personal and business | ||||||
22 | expenses including, but not limited to, appropriate | ||||||
23 | professionals to assist the court pursuant to | ||||||
24 | subsection (l) of Section 503 to administer the payment | ||||||
25 | and accounting of such living and business expenses;
| ||||||
26 | (ii) enjoining a party from removing a child from |
| |||||||
| |||||||
1 | the jurisdiction
of the court;
| ||||||
2 | (iii) enjoining a party from striking or | ||||||
3 | interfering with the
personal liberty of the other | ||||||
4 | party or of any child; or
| ||||||
5 | (iv) providing other injunctive relief proper in | ||||||
6 | the circumstances;
or
| ||||||
7 | (3) other appropriate temporary relief including, in | ||||||
8 | the discretion of the court, ordering the purchase or sale | ||||||
9 | of assets and requiring that a party or parties borrow | ||||||
10 | funds in the appropriate circumstances .
| ||||||
11 | Issues concerning temporary maintenance or temporary | ||||||
12 | support of a child entitled to support shall be dealt with on a | ||||||
13 | summary basis based on financial affidavits, tax returns, pay | ||||||
14 | stubs, banking statements, and other
relevant documentation, | ||||||
15 | except an evidentiary hearing may be held upon a showing of | ||||||
16 | good cause. Under appropriate circumstances, the recipient may | ||||||
17 | be required to account for the use of funds awarded in the same | ||||||
18 | manner as may otherwise be required to justify the use or | ||||||
19 | expenditure of marital funds or property. If a party | ||||||
20 | intentionally or recklessly files an inaccurate or misleading | ||||||
21 | financial affidavit, the court shall impose significant | ||||||
22 | penalties and sanctions including, but not limited to, costs | ||||||
23 | and attorney's fees resulting from the improper | ||||||
24 | representation. | ||||||
25 | (b) The court may issue a temporary restraining order | ||||||
26 | without
requiring notice to the other party only if it finds, |
| |||||||
| |||||||
1 | on the basis of
the moving affidavit or other evidence, that | ||||||
2 | irreparable injury will
result to the moving party if no order | ||||||
3 | is issued until the time for
responding has elapsed.
| ||||||
4 | (c) A response hereunder may be filed within 21 days after | ||||||
5 | service
of notice of motion or at the time specified in the | ||||||
6 | temporary
restraining order.
| ||||||
7 | (c-1) As used in this subsection (c-1), "interim attorney's | ||||||
8 | fees and
costs" means attorney's fees and costs
assessed
from | ||||||
9 | time to time while a case is pending, in favor of the | ||||||
10 | petitioning party's
current counsel, for reasonable fees and | ||||||
11 | costs either already incurred or to be
incurred, and "interim | ||||||
12 | award" means an award of interim attorney's fees and
costs. | ||||||
13 | Interim awards shall be governed by the following:
| ||||||
14 | (1) Except for good cause shown, a proceeding for (or | ||||||
15 | relating to) interim
attorney's fees and costs in a | ||||||
16 | pre-judgment dissolution proceeding shall be | ||||||
17 | nonevidentiary and summary in nature. All hearings for or | ||||||
18 | relating to interim attorney's fees and costs under this | ||||||
19 | subsection shall be scheduled expeditiously by the court. | ||||||
20 | When a party files a petition for interim attorney's fees | ||||||
21 | and
costs supported by one or more
affidavits that | ||||||
22 | delineate relevant factors, the court (or a hearing | ||||||
23 | officer)
shall assess an interim award after affording the | ||||||
24 | opposing party a reasonable
opportunity to file a | ||||||
25 | responsive pleading. A responsive pleading shall set out
| ||||||
26 | the amount of each retainer or other payment or payments, |
| |||||||
| |||||||
1 | or both, previously
paid to the responding party's counsel | ||||||
2 | by or on behalf of the responding party. A responsive | ||||||
3 | pleading shall include costs incurred, and shall indicate | ||||||
4 | whether the costs are paid or unpaid.
In assessing an
| ||||||
5 | interim award, the court shall consider all relevant | ||||||
6 | factors, as presented,
that appear reasonable and | ||||||
7 | necessary, including to the extent applicable:
| ||||||
8 | (A) the income and property of each party, | ||||||
9 | including alleged marital
property within the sole | ||||||
10 | control of one party and alleged non-marital property
| ||||||
11 | within access to a party;
| ||||||
12 | (B) the needs of each party;
| ||||||
13 | (C) the realistic earning capacity of each party;
| ||||||
14 | (D) any impairment to present earning capacity of | ||||||
15 | either party,
including
age and physical and emotional | ||||||
16 | health;
| ||||||
17 | (E) the standard of living established during the | ||||||
18 | marriage;
| ||||||
19 | (F) the degree of complexity of the issues, | ||||||
20 | including allocation of parental responsibility | ||||||
21 | custody , valuation
or division (or both) of closely | ||||||
22 | held businesses, and tax planning, as well as
| ||||||
23 | reasonable needs for expert investigations or expert | ||||||
24 | witnesses, or both;
| ||||||
25 | (G) each party's access to relevant information;
| ||||||
26 | (H) the amount of the payment or payments made or |
| |||||||
| |||||||
1 | reasonably expected to
be made to the attorney for the | ||||||
2 | other party; and
| ||||||
3 | (I) any other factor that the court expressly finds | ||||||
4 | to be just and
equitable.
| ||||||
5 | (2) Any assessment of an interim award (including one | ||||||
6 | pursuant to an
agreed
order) shall be without prejudice to | ||||||
7 | any final allocation and without prejudice
as to any claim | ||||||
8 | or right of either party or any counsel of record at the | ||||||
9 | time
of the award. Any such claim or right may be presented | ||||||
10 | by the appropriate
party or counsel at a hearing on | ||||||
11 | contribution under subsection (j) of Section
503 or a | ||||||
12 | hearing on counsel's fees under subsection (c) of Section | ||||||
13 | 508. Unless
otherwise ordered by the court at the final | ||||||
14 | hearing between the parties or in a
hearing under | ||||||
15 | subsection (j) of Section 503 or subsection (c) of
Section | ||||||
16 | 508, interim awards, as well as the aggregate of all other | ||||||
17 | payments
by each party
to
counsel and related payments to | ||||||
18 | third parties, shall be deemed to have been
advances from | ||||||
19 | the parties' marital estate. Any portion of any interim | ||||||
20 | award
constituting an overpayment shall be remitted back to | ||||||
21 | the appropriate party or
parties, or, alternatively, to | ||||||
22 | successor counsel, as the court determines and
directs, | ||||||
23 | after notice in a form designated by the Supreme Court. An | ||||||
24 | order for the award of interim attorney's fees shall be a | ||||||
25 | standardized form order and labeled "Interim Fee Award | ||||||
26 | Order" .
|
| |||||||
| |||||||
1 | (3) In any proceeding under this subsection (c-1), the | ||||||
2 | court (or hearing
officer) shall assess an interim award | ||||||
3 | against an opposing party in an
amount necessary to enable | ||||||
4 | the petitioning party to participate adequately in
the | ||||||
5 | litigation, upon findings that the party from whom | ||||||
6 | attorney's fees and
costs are sought has the financial | ||||||
7 | ability to pay reasonable amounts and that
the party | ||||||
8 | seeking attorney's fees and costs lacks sufficient access | ||||||
9 | to assets
or income to pay reasonable amounts. In | ||||||
10 | determining an award, the
court shall consider whether | ||||||
11 | adequate participation in the litigation requires
| ||||||
12 | expenditure of more fees and costs for a party that is not | ||||||
13 | in control of assets
or relevant information. Except for | ||||||
14 | good cause shown, an interim award shall
not be less than | ||||||
15 | payments made or reasonably expected to be made to the | ||||||
16 | counsel
for the other party. If the court finds that both | ||||||
17 | parties
lack financial ability or access to assets or | ||||||
18 | income for reasonable attorney's
fees and costs, the court | ||||||
19 | (or hearing officer) shall enter an order that
allocates | ||||||
20 | available funds for each party's counsel, including | ||||||
21 | retainers or
interim payments, or both, previously paid, in | ||||||
22 | a manner that achieves
substantial parity between the | ||||||
23 | parties.
| ||||||
24 | (4) The changes to this Section 501 made by this | ||||||
25 | amendatory Act of 1996
apply to cases pending on or after | ||||||
26 | June 1, 1997, except as otherwise provided
in Section 508.
|
| |||||||
| |||||||
1 | (c-2) Allocation of use of marital residence. Where
there | ||||||
2 | is on file a verified complaint or verified petition seeking
| ||||||
3 | temporary eviction from the marital residence, the court may, | ||||||
4 | during the
pendency of the proceeding, only in cases where the | ||||||
5 | physical or mental well-being of either spouse or
his or her | ||||||
6 | children is jeopardized by occupancy of the marital residence | ||||||
7 | by both
spouses, and only upon due notice and full hearing, | ||||||
8 | unless waived by the
court on good cause shown, enter orders | ||||||
9 | granting the exclusive possession of the marital residence to | ||||||
10 | either spouse,
by eviction from, or restoration of, the marital | ||||||
11 | residence, until the final
determination of the cause. The | ||||||
12 | order may also provide for the nesting of children with the | ||||||
13 | children having exclusive possession of the residence and the | ||||||
14 | spouses alternating occupancy if the nesting arrangement is in | ||||||
15 | the children's best interests pursuant to the factors listed in | ||||||
16 | Section 602.7 of this Act. No such order shall in any manner | ||||||
17 | affect any
estate in homestead property of either party. In | ||||||
18 | entering orders under this subsection (c-2), the court shall | ||||||
19 | balance hardships to the parties. | ||||||
20 | (d) A temporary order entered under this Section:
| ||||||
21 | (1) does not prejudice the rights of the parties or the | ||||||
22 | child which
are to be adjudicated at subsequent hearings in | ||||||
23 | the proceeding;
| ||||||
24 | (2) may be revoked or modified before final judgment, | ||||||
25 | on a showing
by affidavit and upon hearing; and
| ||||||
26 | (3) terminates when the final judgment is entered or |
| |||||||
| |||||||
1 | when the
petition for dissolution of marriage or legal | ||||||
2 | separation or declaration
of invalidity of marriage is | ||||||
3 | dismissed.
| ||||||
4 | (e) The fees or costs of mediation under this Section shall
| ||||||
5 | be borne by the parties and may be assessed by the court as it | ||||||
6 | deems equitable without prejudice and are subject to | ||||||
7 | reallocation at the conclusion of the case. | ||||||
8 | (Source: P.A. 96-583, eff. 1-1-10.)
| ||||||
9 | (750 ILCS 5/501.1) (from Ch. 40, par. 501.1)
| ||||||
10 | Sec. 501.1. Dissolution action stay.
| ||||||
11 | (a) Upon service of a summons and petition or praecipe | ||||||
12 | filed
under the Illinois Marriage and Dissolution of Marriage | ||||||
13 | Act or upon
the filing of the respondent's appearance in the | ||||||
14 | proceeding, whichever first
occurs, a dissolution action stay | ||||||
15 | shall be in effect against both parties
and their agents and | ||||||
16 | employees , without bond or further notice, until a
final | ||||||
17 | judgement is entered, the proceeding is dismissed, or until | ||||||
18 | further
order of the court , :
| ||||||
19 | (1) restraining both parties from transferring, | ||||||
20 | encumbering, concealing,
destroying, spending, damaging, or in | ||||||
21 | any way disposing of any property,
without the consent of the | ||||||
22 | other party or an order of the court, except in
the usual | ||||||
23 | course of business, for the necessities of life, or for
| ||||||
24 | reasonable costs, expenses, and attorney's fees arising from | ||||||
25 | the
proceeding, as well as requiring each party to provide |
| |||||||
| |||||||
1 | written notice to
the other party and his or her attorney of | ||||||
2 | any proposed extraordinary
expenditure or transaction;
| ||||||
3 | (2) restraining both parties from physically abusing, | ||||||
4 | harassing,
intimidating, striking, or interfering with the | ||||||
5 | personal liberty of the
other party or the minor children of | ||||||
6 | either party . ; and
| ||||||
7 | (3) restraining both parties from removing any minor | ||||||
8 | child of either
party from the State of Illinois or from | ||||||
9 | concealing any such child from the
other party, without the | ||||||
10 | consent of the other party or an order of the court.
| ||||||
11 | The restraint provided in this subsection (a) does not | ||||||
12 | operate to make
unavailable any of the remedies provided in the | ||||||
13 | Illinois Domestic Violence Act
of 1986.
| ||||||
14 | A restraint of the parties' actions under this Section does | ||||||
15 | not
affect the rights of a bona fide purchaser or mortgagee | ||||||
16 | whose interest in
real property or whose beneficial interest in | ||||||
17 | real property under an
Illinois land trust was acquired before | ||||||
18 | the filing of a lis pendens
notice under Section 2-1901 of the | ||||||
19 | Code of Civil Procedure.
| ||||||
20 | (b) (Blank). Notice of any proposed extraordinary | ||||||
21 | expenditure or
transaction, as required by subsection (a), | ||||||
22 | shall be given as soon as
practicable, but not less than 7 days | ||||||
23 | before the proposed date
for the carrying out or commencement | ||||||
24 | of the carrying out of the
extraordinary expenditure or | ||||||
25 | transaction, except in an emergency, in
which event notice | ||||||
26 | shall be given as soon as practicable under the
circumstances. |
| |||||||
| |||||||
1 | If proper notice is given and if the party receiving the
notice | ||||||
2 | does not object by filing a petition for injunctive relief | ||||||
3 | under
the Code of Civil Procedure within 7 days of receipt of | ||||||
4 | the notice, the
carrying out of the proposed extraordinary | ||||||
5 | expenditure or transaction is
not a violation of the | ||||||
6 | dissolution action stay. The dissolution action
stay shall | ||||||
7 | remain in full force and effect against both parties for 14 | ||||||
8 | days
after the date of filing of a petition for injunctive | ||||||
9 | relief by the
objecting party (or a shorter period if the court | ||||||
10 | so orders); and no
extension beyond that 14 day period shall be | ||||||
11 | granted by the court. For
good cause shown, a party may file a | ||||||
12 | petition for a reduction in time with
respect to any 7 day | ||||||
13 | notice requirement under this subsection.
| ||||||
14 | (c) (Blank). A party making any extraordinary expenditure | ||||||
15 | or carrying out
any extraordinary transaction after a | ||||||
16 | dissolution action stay is in
effect shall account promptly to | ||||||
17 | the court and to the other party for all
of those expenditures | ||||||
18 | and transactions. This obligation to account applies
| ||||||
19 | throughout the pendency of the proceeding, irrespective of (i) | ||||||
20 | any notice
given by any party as to any proposed extraordinary | ||||||
21 | expenditure or
transaction, (ii) any filing of an objection and | ||||||
22 | petition under this
Section or the absence of any such filing, | ||||||
23 | or (iii) any court ruling as to
an issue presented to it by | ||||||
24 | either party.
| ||||||
25 | (d) (Blank). If the party making an extraordinary | ||||||
26 | expenditure or transaction
fails to provide proper notice or if |
| |||||||
| |||||||
1 | despite proper notice the other
party filed a petition and | ||||||
2 | prevailed on that petition, and the
extraordinary expenditure | ||||||
3 | or transaction results in a loss of income or
reduction in the | ||||||
4 | amount or in the value of property, there is a
presumption of | ||||||
5 | dissipation of property, equal to the amount of the loss or
| ||||||
6 | reduction, charged against the party for purposes of property
| ||||||
7 | distribution under Section 503.
| ||||||
8 | (e) In a proceeding filed under this Act, the summons shall | ||||||
9 | provide
notice of the entry of the automatic dissolution action | ||||||
10 | stay in a form as
required by applicable rules.
| ||||||
11 | (Source: P.A. 87-881; 88-24.)
| ||||||
12 | (750 ILCS 5/502) (from Ch. 40, par. 502)
| ||||||
13 | Sec. 502. Agreement. (a) To promote amicable settlement
of | ||||||
14 | disputes between
parties to a marriage attendant upon the | ||||||
15 | dissolution of their marriage,
the parties may enter
into an a | ||||||
16 | written or oral agreement containing provisions for
| ||||||
17 | disposition of any
property owned by either of them, | ||||||
18 | maintenance of either of them , and support,
parental | ||||||
19 | responsibility and parenting time allocation custody and | ||||||
20 | visitation
of their children , and support of their children as | ||||||
21 | provided in Section 513 after
the children attain majority. Any | ||||||
22 | agreement pursuant to this Section must be in writing, except | ||||||
23 | for good cause shown with the approval of the court, before | ||||||
24 | proceeding to an oral prove up .
| ||||||
25 | (b) The terms of the agreement, except those providing for |
| |||||||
| |||||||
1 | the support,
parental responsibility and parenting time | ||||||
2 | allocation custody and visitation of children, are binding upon | ||||||
3 | the court unless it finds, after
considering the economic | ||||||
4 | circumstances of the parties and any other relevant evidence
| ||||||
5 | produced by the parties, on their own motion or on request of | ||||||
6 | the court,
that the
agreement is unconscionable. The terms of | ||||||
7 | the agreement incorporated into the judgment are binding if | ||||||
8 | there is any conflict between the terms of the agreement and | ||||||
9 | any testimony made at an uncontested prove-up hearing on the | ||||||
10 | grounds or the substance of the agreement.
| ||||||
11 | (c) If the court finds the agreement unconscionable,
it may | ||||||
12 | request the parties to submit a revised agreement
or upon | ||||||
13 | hearing, may make orders
for the disposition of property, | ||||||
14 | maintenance, child support and other matters.
| ||||||
15 | (d) Unless the agreement provides to the contrary, its
| ||||||
16 | terms shall be set forth
in the judgment, and the parties shall | ||||||
17 | be ordered to perform under such
terms, or if the agreement
| ||||||
18 | provides that its terms shall not be set forth in the judgment, | ||||||
19 | the judgment shall
identify the agreement and state that the | ||||||
20 | court has approved its terms.
| ||||||
21 | (e) Terms of the agreement set forth in the judgment are | ||||||
22 | enforceable by
all remedies available for enforcement
of a | ||||||
23 | judgment, including contempt, and are enforceable as contract | ||||||
24 | terms.
| ||||||
25 | (f) Child Except for terms concerning the support, support | ||||||
26 | of children as provided in Section 513 after
the children |
| |||||||
| |||||||
1 | attain majority, and parental responsibility and parenting | ||||||
2 | time allocation of children may be modified upon a showing of a | ||||||
3 | substantial change in circumstances. The parties may provide | ||||||
4 | that maintenance is non-modifiable in amount, duration, or | ||||||
5 | both. If the parties do not provide that maintenance is | ||||||
6 | non-modifiable in amount, duration, or both, then those terms | ||||||
7 | are modifiable upon a substantial change of circumstances. | ||||||
8 | Property provisions of an agreement are never modifiable. The | ||||||
9 | custody or visitation of children,
the judgment may expressly | ||||||
10 | preclude or limit modification of other terms set forth in the
| ||||||
11 | judgment if the agreement so provides. Otherwise, terms
of an | ||||||
12 | agreement
set forth in the judgment are automatically modified | ||||||
13 | by modification of the judgment.
| ||||||
14 | (Source: P.A. 83-216.)
| ||||||
15 | (750 ILCS 5/503) (from Ch. 40, par. 503)
| ||||||
16 | Sec. 503. Disposition of property and debts .
| ||||||
17 | (a) For purposes of this Act, "marital property" means all | ||||||
18 | property , including debts and other obligations, acquired
by | ||||||
19 | either spouse subsequent to the marriage, except the following, | ||||||
20 | which is
known as "non-marital property":
| ||||||
21 | (1) property acquired by gift, legacy or descent or | ||||||
22 | property acquired in exchange for such property ;
| ||||||
23 | (2) property acquired in exchange for property | ||||||
24 | acquired before the
marriage or in exchange for property | ||||||
25 | acquired by gift, legacy or descent ;
|
| |||||||
| |||||||
1 | (3) property acquired by a spouse after a judgment of | ||||||
2 | legal separation;
| ||||||
3 | (4) property excluded by valid agreement of the | ||||||
4 | parties , including
a premarital agreement or a postnuptial | ||||||
5 | agreement ;
| ||||||
6 | (5) any judgment or property obtained by judgment | ||||||
7 | awarded to a spouse
from the other spouse except, however, | ||||||
8 | when a spouse is required to sue the other spouse in order | ||||||
9 | to obtain insurance coverage or otherwise recover from a | ||||||
10 | third party and the recovery is directly related to amounts | ||||||
11 | advanced by the marital estate, the judgment shall be | ||||||
12 | considered marital property ;
| ||||||
13 | (6) property acquired before the marriage , except as it | ||||||
14 | relates to retirement plans that may have both marital and | ||||||
15 | non-marital characteristics ;
| ||||||
16 | (6.5) all property acquired by a spouse by
the sole use | ||||||
17 | of non-marital property as collateral for a loan that then | ||||||
18 | is used to acquire property
during the marriage; to the | ||||||
19 | extent that the marital estate repays any portion of the | ||||||
20 | loan, it shall be considered a contribution from the | ||||||
21 | marital estate to the non-marital estate subject to | ||||||
22 | reimbursement;
| ||||||
23 | (7) the increase in value of non-marital property | ||||||
24 | acquired by a method listed in
paragraphs (1) through (6) | ||||||
25 | of this subsection , irrespective of whether the
increase | ||||||
26 | results from a contribution of marital property, |
| |||||||
| |||||||
1 | non-marital property,
the personal effort of a spouse, or | ||||||
2 | otherwise, subject to the right of
reimbursement provided | ||||||
3 | in subsection (c) of this Section; and
| ||||||
4 | (8) income from property acquired by a method listed in | ||||||
5 | paragraphs (1)
through (7) of this subsection if the income | ||||||
6 | is not attributable to the
personal effort of a spouse.
| ||||||
7 | Property acquired prior to a marriage that would otherwise | ||||||
8 | be non-marital property shall not be deemed to be marital | ||||||
9 | property solely because the property was acquired in | ||||||
10 | contemplation of marriage. The court shall make specific | ||||||
11 | factual findings as to its classification of assets as marital | ||||||
12 | or non-marital property, values, and other factual findings | ||||||
13 | supporting its property award. | ||||||
14 | (b)(1) For purposes of distribution of property pursuant to | ||||||
15 | this
Section , all property acquired by either spouse after the | ||||||
16 | marriage and before a
judgment of dissolution of marriage or | ||||||
17 | declaration of invalidity of marriage is presumed marital | ||||||
18 | property. This presumption includes ,
including non-marital | ||||||
19 | property transferred into some form of co-ownership
between the | ||||||
20 | spouses, is presumed to be marital property, regardless of | ||||||
21 | whether
title is held individually or by the spouses in some | ||||||
22 | form of co-ownership such
as joint tenancy, tenancy in common, | ||||||
23 | tenancy by the entirety, or community
property. A spouse may | ||||||
24 | overcome the The presumption of marital property is overcome by | ||||||
25 | a showing through clear and convincing evidence that
the | ||||||
26 | property was acquired by a method listed in subsection (a) of |
| |||||||
| |||||||
1 | this Section or was done for estate or tax planning purposes or | ||||||
2 | for other reasons that establish that the transfer was not | ||||||
3 | intended to be a gift .
| ||||||
4 | (2) For purposes of distribution of property pursuant to | ||||||
5 | this Section,
all pension benefits (including pension benefits | ||||||
6 | under the Illinois Pension
Code , defined benefit plans, defined | ||||||
7 | contribution plans and accounts, individual retirement | ||||||
8 | accounts, and non-qualified plans ) acquired by or participated | ||||||
9 | in by either spouse after the marriage and before a judgment of
| ||||||
10 | dissolution of marriage or declaration of invalidity of the | ||||||
11 | marriage are
presumed to be marital property , regardless of | ||||||
12 | which spouse participates in the
pension plan . A spouse may | ||||||
13 | overcome the The presumption that these pension benefits are | ||||||
14 | marital property
is overcome by a showing through clear and | ||||||
15 | convincing evidence that the pension benefits were acquired by | ||||||
16 | a method
listed in subsection (a) of this Section. The right to | ||||||
17 | a division of pension
benefits in just proportions under this | ||||||
18 | Section is enforceable under Section
1-119 of the Illinois | ||||||
19 | Pension Code.
| ||||||
20 | The value of pension benefits in a retirement system | ||||||
21 | subject to the Illinois
Pension Code shall be determined in | ||||||
22 | accordance with the valuation procedures
established by the | ||||||
23 | retirement system.
| ||||||
24 | The recognition of pension benefits as marital property and | ||||||
25 | the division of
those benefits pursuant to a Qualified Illinois | ||||||
26 | Domestic Relations Order shall
not be deemed to be a |
| |||||||
| |||||||
1 | diminishment, alienation, or impairment of those
benefits. The | ||||||
2 | division of pension benefits is an allocation of property in
| ||||||
3 | which each spouse has a species of common ownership.
| ||||||
4 | (3) For purposes of distribution of property under this | ||||||
5 | Section, all stock
options and restricted stock or similar form | ||||||
6 | of benefit granted to either spouse after the marriage and | ||||||
7 | before a judgment of
dissolution of marriage or declaration of | ||||||
8 | invalidity of marriage, whether
vested or non-vested or whether | ||||||
9 | their value is ascertainable, are presumed to
be marital | ||||||
10 | property. This presumption of marital property is overcome by a
| ||||||
11 | showing that the stock options or restricted stock or similar | ||||||
12 | form of benefit were acquired by a method listed in subsection
| ||||||
13 | (a) of this Section. The court shall allocate stock options and | ||||||
14 | restricted stock or similar form of benefit between the
parties | ||||||
15 | at the time of the judgment of dissolution of marriage or | ||||||
16 | declaration
of invalidity of marriage recognizing that the | ||||||
17 | value of the stock options and restricted stock or similar form | ||||||
18 | of benefit may
not be then determinable and that the actual | ||||||
19 | division of the options may not
occur until a future date. In | ||||||
20 | making the allocation between the parties, the
court shall | ||||||
21 | consider, in addition to the factors set forth in subsection | ||||||
22 | (d) of
this Section, the following:
| ||||||
23 | (i) All circumstances underlying the grant of the stock | ||||||
24 | option and restricted stock or similar form of benefit | ||||||
25 | including
but not limited to the vesting schedule, whether | ||||||
26 | the grant was for past, present, or future efforts, whether |
| |||||||
| |||||||
1 | the grant is designed to promote future performance,
or any | ||||||
2 | combination thereof.
| ||||||
3 | (ii) The length of time from the grant of the option to | ||||||
4 | the time the
option is exercisable.
| ||||||
5 | (b-5) As to any existing policy of life insurance insuring | ||||||
6 | the life of either spouse, or any interest in such policy, that | ||||||
7 | constitutes marital property, whether whole life, term life, | ||||||
8 | group term life, universal life, or other form of life
| ||||||
9 | insurance policy, and whether or not the value is | ||||||
10 | ascertainable, the court shall allocate ownership, death | ||||||
11 | benefits or the
right to assign death benefits, and the | ||||||
12 | obligation for premium payments, if any, equitably between the | ||||||
13 | parties at the
time of the judgment for dissolution or | ||||||
14 | declaration of invalidity of marriage. | ||||||
15 | (c) Commingled marital and non-marital property shall be | ||||||
16 | treated in
the following manner, unless otherwise agreed by the | ||||||
17 | spouses:
| ||||||
18 | (1)(A) If marital and non-marital property are | ||||||
19 | commingled by one estate being contributed into the other, | ||||||
20 | the following shall apply: | ||||||
21 | (i) If the contributed property loses its | ||||||
22 | identity, the contributed property transmutes to the | ||||||
23 | estate receiving the property, subject to the | ||||||
24 | provisions of paragraph (2) of this subsection (c). | ||||||
25 | (ii) If the contributed property retains its | ||||||
26 | identity, it does not transmute and remains property of |
| |||||||
| |||||||
1 | the contributing estate. | ||||||
2 | (B) If marital and non-marital property are commingled | ||||||
3 | into newly acquired property resulting in a loss of | ||||||
4 | identity of the contributing estates, the commingled | ||||||
5 | property shall be deemed transmuted to marital property, | ||||||
6 | subject to the provisions of paragraph (2) of this | ||||||
7 | subsection (c). | ||||||
8 | (2)(A) When one estate of property makes a contribution | ||||||
9 | to another estate of property, the contributing estate | ||||||
10 | shall be reimbursed from the estate receiving the | ||||||
11 | contribution notwithstanding any transmutation. No such | ||||||
12 | reimbursement shall be made with respect to a contribution | ||||||
13 | that is not traceable by clear and convincing evidence or | ||||||
14 | that was a gift. The court may provide for reimbursement | ||||||
15 | out of the marital property to be divided or by imposing a | ||||||
16 | lien against the non-marital property that received the | ||||||
17 | contribution. | ||||||
18 | (B) When a spouse contributes personal effort to | ||||||
19 | non-marital property, it shall be deemed a contribution | ||||||
20 | from the marital estate, which shall receive reimbursement | ||||||
21 | for the efforts if the efforts are significant and result | ||||||
22 | in substantial appreciation to the non-marital property | ||||||
23 | except that if the spouse has been properly compensated for | ||||||
24 | his or her efforts, it shall not be deemed a contribution | ||||||
25 | to the marital estate and there shall be no reimbursement | ||||||
26 | to the marital estate. The court may provide for |
| |||||||
| |||||||
1 | reimbursement out of the marital property to be divided or | ||||||
2 | by imposing a lien against the non-marital property which | ||||||
3 | received the contribution.
| ||||||
4 | (1) When marital and non-marital property are | ||||||
5 | commingled by contributing
one estate of property into | ||||||
6 | another resulting in a loss of identity of the
contributed | ||||||
7 | property, the classification of the contributed property | ||||||
8 | is
transmuted to the estate receiving the contribution, | ||||||
9 | subject to the provisions
of paragraph (2) of this | ||||||
10 | subsection; provided that if marital and non-marital
| ||||||
11 | property are commingled into newly acquired property | ||||||
12 | resulting in a loss
of identity of the contributing | ||||||
13 | estates, the commingled property shall be
deemed | ||||||
14 | transmuted to marital property, subject to the provisions | ||||||
15 | of paragraph
(2) of this subsection.
| ||||||
16 | (2) When one estate of property makes a contribution to | ||||||
17 | another estate
of property, or when a spouse contributes | ||||||
18 | personal effort to non-marital
property, the contributing | ||||||
19 | estate shall be reimbursed from the estate receiving
the | ||||||
20 | contribution notwithstanding any transmutation; provided, | ||||||
21 | that no such
reimbursement shall be made with respect to a | ||||||
22 | contribution which is not
retraceable by clear and | ||||||
23 | convincing evidence, or was a gift, or, in the
case of a | ||||||
24 | contribution of personal effort of a spouse to non-marital | ||||||
25 | property,
unless the effort is significant and results in | ||||||
26 | substantial appreciation
of the non-marital property. |
| |||||||
| |||||||
1 | Personal effort of a spouse shall be deemed
a contribution | ||||||
2 | by the marital estate. The court may provide for | ||||||
3 | reimbursement
out of the marital property to be divided or | ||||||
4 | by imposing a lien against the
non-marital property which | ||||||
5 | received the contribution.
| ||||||
6 | (d) In a proceeding for dissolution of marriage or | ||||||
7 | declaration of invalidity
of marriage, or in a proceeding for | ||||||
8 | disposition of property following
dissolution of marriage by a | ||||||
9 | court that which lacked personal jurisdiction over the
absent | ||||||
10 | spouse or lacked jurisdiction to dispose of the property, the | ||||||
11 | court
shall assign each spouse's non-marital property to that | ||||||
12 | spouse. It also shall
divide the marital property without | ||||||
13 | regard to marital misconduct in just
proportions considering | ||||||
14 | all relevant factors, including:
| ||||||
15 | (1) each party's the contribution of each party to the | ||||||
16 | acquisition, preservation, or
increase or decrease in | ||||||
17 | value of the marital or non-marital property, including
(i) | ||||||
18 | any such decrease attributable to a payment deemed to have | ||||||
19 | been an advance from the parties' marital estate under | ||||||
20 | subsection (c-1)(2) of Section 501 ; and (ii) the | ||||||
21 | contribution of a spouse as a homemaker or to the family | ||||||
22 | unit; and (iii) whether the contribution is after the | ||||||
23 | commencement of a proceeding for dissolution of marriage or | ||||||
24 | declaration of invalidity of marriage;
| ||||||
25 | (2) the dissipation by each party of the marital or | ||||||
26 | non-marital property, provided that a party's claim of |
| |||||||
| |||||||
1 | dissipation is subject to the following conditions:
| ||||||
2 | (i) a notice of intent to claim dissipation shall | ||||||
3 | be given no later than 60 days
before trial or 30 days | ||||||
4 | after discovery closes, whichever is later; | ||||||
5 | (ii) the notice of intent to claim dissipation | ||||||
6 | shall contain, at a minimum, a date or period of time | ||||||
7 | during which the marriage began undergoing an | ||||||
8 | irretrievable breakdown, an identification of the | ||||||
9 | property dissipated, and a date or period of time | ||||||
10 | during which the dissipation occurred; | ||||||
11 | (iii) the notice of intent to claim dissipation | ||||||
12 | shall be filed with the clerk of the court and be | ||||||
13 | served pursuant to applicable rules; | ||||||
14 | (iv) no dissipation shall be deemed to have | ||||||
15 | occurred prior to 5 years before the filing of the | ||||||
16 | petition for dissolution of marriage, or 3 years after | ||||||
17 | the party
claiming dissipation knew or should have | ||||||
18 | known of the dissipation;
| ||||||
19 | (3) the value of the property assigned to each spouse;
| ||||||
20 | (4) the duration of the marriage;
| ||||||
21 | (5) the relevant economic circumstances of each spouse | ||||||
22 | when the division
of property is to become effective, | ||||||
23 | including the desirability of awarding
the family home, or | ||||||
24 | the right to live therein for reasonable periods, to the
| ||||||
25 | spouse having the primary residence custody of the | ||||||
26 | children;
|
| |||||||
| |||||||
1 | (6) any obligations and rights arising from a prior | ||||||
2 | marriage
of either party;
| ||||||
3 | (7) any prenuptial or postnuptial antenuptial | ||||||
4 | agreement of the parties;
| ||||||
5 | (8) the age, health, station, occupation, amount and | ||||||
6 | sources of income,
vocational skills, employability, | ||||||
7 | estate, liabilities, and needs of each of the
parties;
| ||||||
8 | (9) the custodial provisions for any children;
| ||||||
9 | (10) whether the apportionment is in lieu of or in | ||||||
10 | addition to
maintenance;
| ||||||
11 | (11) the reasonable opportunity of each spouse for | ||||||
12 | future acquisition
of capital assets and income; and
| ||||||
13 | (12) the tax consequences of the property division upon | ||||||
14 | the
respective economic circumstances of the parties.
| ||||||
15 | (e) Each spouse has a species of common ownership in the | ||||||
16 | marital property
which vests at the time dissolution | ||||||
17 | proceedings are commenced and continues
only during the | ||||||
18 | pendency of the action. Any such interest in marital property
| ||||||
19 | shall not encumber that property so as to restrict its | ||||||
20 | transfer, assignment
or conveyance by the title holder unless | ||||||
21 | such title holder is specifically
enjoined from making such | ||||||
22 | transfer, assignment or conveyance.
| ||||||
23 | (f) In a proceeding for dissolution of marriage or | ||||||
24 | declaration of
invalidity of marriage or in a proceeding for | ||||||
25 | disposition of property
following dissolution of marriage by a | ||||||
26 | court that lacked personal
jurisdiction over the absent spouse |
| |||||||
| |||||||
1 | or lacked jurisdiction to dispose of
the property, the court, | ||||||
2 | in determining the value of the marital and
non-marital | ||||||
3 | property for purposes of dividing the property, has the | ||||||
4 | discretion to use the date of the trial or such other date as | ||||||
5 | agreed upon by the parties, or ordered by the court within its | ||||||
6 | discretion, for purposes of determining the value of assets or | ||||||
7 | property shall value the
property as of the date of trial or | ||||||
8 | some other date as close to the date
of trial as is | ||||||
9 | practicable .
| ||||||
10 | (g) The court if necessary to protect and promote the best | ||||||
11 | interests of the
children may set aside a portion of the | ||||||
12 | jointly or separately held
estates of the parties in a separate | ||||||
13 | fund or trust for the support,
maintenance, education, physical | ||||||
14 | and mental health, and general welfare of any minor, dependent,
| ||||||
15 | or incompetent child of the parties. In making a determination | ||||||
16 | under this
subsection, the court may consider, among other | ||||||
17 | things, the conviction of a
party of any of the offenses set | ||||||
18 | forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | ||||||
19 | 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, | ||||||
20 | 12-15, or 12-16, or Section 12-3.05 except for subdivision | ||||||
21 | (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal | ||||||
22 | Code of 2012 if the
victim is a
child of one or both of the | ||||||
23 | parties, and there is a need for, and cost of,
care, healing | ||||||
24 | and counseling for the child who is the victim of the crime.
| ||||||
25 | (h) Unless specifically directed by a reviewing court, or | ||||||
26 | upon good
cause shown, the court shall not on remand consider |
| |||||||
| |||||||
1 | any increase or
decrease in the value of any "marital" or | ||||||
2 | "non-marital" property occurring
since the assessment of such | ||||||
3 | property at the original trial or hearing, but
shall use only | ||||||
4 | that assessment made at the original trial or hearing.
| ||||||
5 | (i) The court may make such judgments affecting the marital | ||||||
6 | property
as may be just and may enforce such judgments by | ||||||
7 | ordering a sale of marital
property, with proceeds therefrom to | ||||||
8 | be applied as determined by the court.
| ||||||
9 | (j) After proofs have closed in the final hearing on all | ||||||
10 | other issues
between the parties (or in conjunction with the | ||||||
11 | final hearing, if all parties
so stipulate) and before judgment | ||||||
12 | is entered, a party's petition for
contribution to fees and | ||||||
13 | costs incurred in the proceeding shall be heard and
decided, in | ||||||
14 | accordance with the following provisions:
| ||||||
15 | (1) A petition for contribution, if not filed before | ||||||
16 | the final hearing
on other issues between the parties, | ||||||
17 | shall be filed no later than 14 30 days after
the closing | ||||||
18 | of proofs in the final hearing or within such other period | ||||||
19 | as the
court orders.
| ||||||
20 | (2) Any award of contribution to one party from the | ||||||
21 | other party shall be
based on the criteria for division of | ||||||
22 | marital property under this Section 503
and, if maintenance | ||||||
23 | has been awarded, on the criteria for an award of
| ||||||
24 | maintenance under Section 504.
| ||||||
25 | (3) The filing of a petition for contribution shall not | ||||||
26 | be deemed to
constitute a waiver of the attorney-client |
| |||||||
| |||||||
1 | privilege between the petitioning
party and current or | ||||||
2 | former counsel; and such a waiver shall not constitute a
| ||||||
3 | prerequisite to a hearing for contribution. If either | ||||||
4 | party's presentation on
contribution, however, includes | ||||||
5 | evidence within the scope of the
attorney-client | ||||||
6 | privilege, the disclosure or disclosures shall be narrowly
| ||||||
7 | construed and shall not be deemed by the court to | ||||||
8 | constitute a general waiver
of the privilege as to matters | ||||||
9 | beyond the scope of the presentation.
| ||||||
10 | (4) No finding on which a contribution award is based | ||||||
11 | or denied shall be
asserted against counsel or former | ||||||
12 | counsel for purposes of any hearing under
subsection (c) or | ||||||
13 | (e) of Section 508.
| ||||||
14 | (5) A contribution award (payable to either the | ||||||
15 | petitioning
party or the party's counsel, or jointly, as | ||||||
16 | the court determines) may be in
the form of either a set | ||||||
17 | dollar amount or a percentage of fees and costs (or a
| ||||||
18 | portion of fees and costs) to be subsequently agreed upon | ||||||
19 | by the petitioning
party and counsel or, alternatively, | ||||||
20 | thereafter determined in a hearing
pursuant to subsection | ||||||
21 | (c) of Section 508 or previously or thereafter
determined | ||||||
22 | in an independent proceeding under subsection (e) of | ||||||
23 | Section
508.
| ||||||
24 | (6) The changes to this Section 503 made by this | ||||||
25 | amendatory Act of 1996
apply to cases pending on or after | ||||||
26 | June 1, 1997, except as otherwise provided
in Section 508.
|
| |||||||
| |||||||
1 | (k) In determining the value of assets or property under | ||||||
2 | this Section, the court shall employ a fair market value | ||||||
3 | standard. The date of valuation for the purposes of division of | ||||||
4 | assets shall be the date of trial or such other date as agreed | ||||||
5 | by the parties or ordered by the court, within its discretion. | ||||||
6 | If the court grants a petition brought under Section 2-1401 of | ||||||
7 | the Code of Civil Procedure, then the court has the discretion | ||||||
8 | to use the date of the trial or such other date as agreed upon | ||||||
9 | by the parties, or ordered by the court within its discretion, | ||||||
10 | for purposes of determining the value of assets or property. | ||||||
11 | (l) The court may seek the advice of financial experts or | ||||||
12 | other professionals, whether or not employed by the court on a | ||||||
13 | regular basis. The advice given shall be in writing and made | ||||||
14 | available by the court to counsel. Counsel may examine as a | ||||||
15 | witness any professional consulted by the court designated as | ||||||
16 | the court's witness. Costs of a professional shall be allocated | ||||||
17 | by the court between the parties. | ||||||
18 | (m) The changes made to this Section by this amendatory Act | ||||||
19 | of the 97th General Assembly apply only to petitions for | ||||||
20 | dissolution of marriage filed on or after the effective date of | ||||||
21 | this amendatory Act of the 97th General Assembly. | ||||||
22 | (Source: P.A. 96-583, eff. 1-1-10; 96-1551, Article 1, Section | ||||||
23 | 985, eff. 7-1-11; 96-1551, Article 2, Section 1100, eff. | ||||||
24 | 7-1-11; 97-608, eff. 1-1-12; 97-941, eff. 1-1-13; 97-1109, eff. | ||||||
25 | 1-1-13; 97-1150, eff. 1-25-13.)
|
| |||||||
| |||||||
1 | (750 ILCS 5/504) (from Ch. 40, par. 504)
| ||||||
2 | Sec. 504. Maintenance.
| ||||||
3 | (a) In a proceeding for dissolution of marriage or legal | ||||||
4 | separation or
declaration of invalidity of marriage, or a | ||||||
5 | proceeding for maintenance
following dissolution of the | ||||||
6 | marriage by a court which lacked personal
jurisdiction over the | ||||||
7 | absent spouse, the court may grant a temporary or
permanent | ||||||
8 | maintenance award for either spouse in amounts and for periods | ||||||
9 | of
time as the court deems just, without regard to marital | ||||||
10 | misconduct , in
gross or for fixed or indefinite periods of | ||||||
11 | time, and the maintenance may
be paid from the income or | ||||||
12 | property of the other spouse after consideration
of all | ||||||
13 | relevant factors, including:
| ||||||
14 | (1) the income and property of each party, including | ||||||
15 | marital property
apportioned and non-marital property | ||||||
16 | assigned to the party seeking maintenance as well as all | ||||||
17 | financial obligations imposed on the parties
as a result of | ||||||
18 | the dissolution of marriage ;
| ||||||
19 | (2) the needs of each party;
| ||||||
20 | (3) the realistic present and the realistic future | ||||||
21 | earning capacity of each party;
| ||||||
22 | (4) any impairment of the present and future earning | ||||||
23 | capacity of the
party seeking maintenance due to that party | ||||||
24 | devoting time to domestic
duties or having forgone or | ||||||
25 | delayed education, training,
employment, or
career | ||||||
26 | opportunities due to the marriage . The court shall consider |
| |||||||
| |||||||
1 | any impairment of the realistic present or the realistic | ||||||
2 | future earning capacity of the party against
whom | ||||||
3 | maintenance is sought ;
| ||||||
4 | (5) the time necessary to enable the party seeking | ||||||
5 | maintenance to
acquire appropriate education, training, | ||||||
6 | and employment, and whether that
party is able to support | ||||||
7 | himself or herself through appropriate employment
or is the | ||||||
8 | custodian of a child making it appropriate that the | ||||||
9 | custodian not
seek employment;
| ||||||
10 | (6) the standard of living established during the | ||||||
11 | marriage;
| ||||||
12 | (7) the duration of the marriage;
| ||||||
13 | (8) the age, health, station, occupation, amount and | ||||||
14 | sources of income,
vocational skills, employability, | ||||||
15 | estate, liabilities, and needs of each of the
parties the | ||||||
16 | age and the physical and emotional condition of
both | ||||||
17 | parties ;
| ||||||
18 | (8.5) any parental responsibility arrangements;
| ||||||
19 | (9) the tax consequences of the property division upon | ||||||
20 | the respective
economic circumstances of the parties;
| ||||||
21 | (9.5) whether maintenance is in lieu of or in addition | ||||||
22 | to
the property allocation;
| ||||||
23 | (10) contributions and services by the party seeking | ||||||
24 | maintenance to
the education, training, career or career | ||||||
25 | potential, or license of the
other spouse;
| ||||||
26 | (10.5) contributions made to the marriage, including, |
| |||||||
| |||||||
1 | without limitation, domestic
duties, homemaker | ||||||
2 | contributions, and other financial and
non-financial | ||||||
3 | contribution to the marriage;
| ||||||
4 | (11) any valid agreement of the parties; and
| ||||||
5 | (12) any other factor that the court expressly finds to | ||||||
6 | be just and
equitable.
| ||||||
7 | The court shall make specific factual findings as to the | ||||||
8 | type, amount, nature, and duration of the maintenance. | ||||||
9 | (b) (Blank).
| ||||||
10 | (b-1) The court may order that the following types of | ||||||
11 | maintenance be paid: | ||||||
12 | (1) temporary maintenance under Section 501; | ||||||
13 | (2) rehabilitative maintenance for a period of time, | ||||||
14 | subject to a review; | ||||||
15 | (3) maintenance in gross; | ||||||
16 | (4) permanent maintenance; | ||||||
17 | (5) non-modifiable as to duration maintenance in | ||||||
18 | marriages that lasted 10 years or less at the time the | ||||||
19 | action was commenced. | ||||||
20 | For a marriage that lasted more than 10 years at the time | ||||||
21 | the action was commenced, a fixed-term maintenance award is | ||||||
22 | barred. | ||||||
23 | (b-2) Unless agreed to by the parties, an order for | ||||||
24 | unallocated maintenance and child support may not be entered on | ||||||
25 | or after the effective date of this amendatory Act of the 98th | ||||||
26 | General Assembly. This subsection (b-2) does not affect an |
| |||||||
| |||||||
1 | order for unallocated maintenance and child support that was | ||||||
2 | entered before the effective date of this amendatory Act of the | ||||||
3 | 98th General Assembly. | ||||||
4 | (b-5) Any maintenance obligation including any unallocated | ||||||
5 | maintenance and child support obligation, or any portion of any | ||||||
6 | support obligation, that becomes due and remains unpaid shall | ||||||
7 | accrue simple interest as set forth in Section 505 of this Act.
| ||||||
8 | (b-7) Any new or existing maintenance order including any | ||||||
9 | unallocated maintenance and child support order entered by the | ||||||
10 | court under this Section shall be deemed to be a series of | ||||||
11 | judgments against the person obligated to pay support | ||||||
12 | thereunder. Each such judgment to be in the amount of each | ||||||
13 | payment or installment of support and each such judgment to be | ||||||
14 | deemed entered as of the date the corresponding payment or | ||||||
15 | installment becomes due under the terms of the support order, | ||||||
16 | except no judgment shall arise as to any installment coming due | ||||||
17 | after the termination of maintenance as provided by Section 510 | ||||||
18 | of the Illinois Marriage and Dissolution of Marriage Act or the | ||||||
19 | provisions of any order for maintenance. Each such judgment | ||||||
20 | shall have the full force, effect and attributes of any other | ||||||
21 | judgment of this State, including the ability to be enforced. | ||||||
22 | Notwithstanding any other State or local law to the contrary, a | ||||||
23 | lien arises by operation of law against the real and personal | ||||||
24 | property of the obligor for each installment of overdue support | ||||||
25 | owed by the obligor. | ||||||
26 | (c) The court may grant and enforce the payment of |
| |||||||
| |||||||
1 | maintenance during
the pendency of an appeal as the court shall | ||||||
2 | deem reasonable and proper.
| ||||||
3 | (d) No maintenance shall accrue during the period in which | ||||||
4 | a party is
imprisoned for failure to comply with the court's | ||||||
5 | order for the payment of
such maintenance.
| ||||||
6 | (e) When maintenance is to be paid through the clerk of the | ||||||
7 | court in a
county of 1,000,000 inhabitants or less, the order | ||||||
8 | shall direct the obligor
to pay to the clerk, in addition to | ||||||
9 | the maintenance payments, all fees
imposed by the county board | ||||||
10 | under paragraph (3) of subsection (u) of
Section 27.1 of the | ||||||
11 | Clerks of Courts Act. Unless paid in cash or pursuant
to an | ||||||
12 | order for withholding, the payment of the fee shall be by a | ||||||
13 | separate
instrument from the support payment and shall be made | ||||||
14 | to the order of
the Clerk.
| ||||||
15 | (f) An award ordered by a court upon entry of a dissolution | ||||||
16 | judgment or upon entry of an award of maintenance following a | ||||||
17 | reservation of maintenance in a dissolution judgment may be | ||||||
18 | reasonably secured, in whole or in part, by life insurance on | ||||||
19 | the
payor's life on terms as to which the parties agree, or, if | ||||||
20 | they do not agree, on such terms determined by the court,
| ||||||
21 | subject to the following: | ||||||
22 | (1) With respect to existing life insurance, provided | ||||||
23 | the court is apprised through evidence,
stipulation, or | ||||||
24 | otherwise as to level of death benefits, premium, and other | ||||||
25 | relevant
data and makes findings relative thereto, the | ||||||
26 | court may allocate death benefits, the right
to assign |
| |||||||
| |||||||
1 | death benefits, or the obligation for future premium | ||||||
2 | payments between the
parties as it deems just. | ||||||
3 | (2) To the extent the court determines that its award | ||||||
4 | should be secured, in whole or in part,
by new life | ||||||
5 | insurance on the payor's life, the court may only order: | ||||||
6 | (i) that the payor cooperate on all appropriate | ||||||
7 | steps for the payee to obtain
such new life insurance; | ||||||
8 | and | ||||||
9 | (ii) that the payee, at his or her sole option and | ||||||
10 | expense, may obtain such new life
insurance on the | ||||||
11 | payor's life up to a maximum level of death benefit | ||||||
12 | coverage,
or descending death benefit coverage, as is | ||||||
13 | set by the court, such level not to exceed a reasonable
| ||||||
14 | amount in light of the court's award, with the payee or | ||||||
15 | the
payee's designee being the beneficiary of such life | ||||||
16 | insurance. | ||||||
17 | In determining the maximum level of death benefit coverage, | ||||||
18 | the court shall take into account all relevant facts and | ||||||
19 | circumstances, including the impact on access to life | ||||||
20 | insurance by the maintenance payor. If in resolving any | ||||||
21 | issues under paragraph (2) of this subsection (f) a court | ||||||
22 | reviews any submitted or proposed application for new | ||||||
23 | insurance on the life of a maintenance payor, the review | ||||||
24 | shall be in camera. | ||||||
25 | (3) (Blank). A judgment shall expressly set forth that | ||||||
26 | all death benefits paid under life insurance on
a payor's |
| |||||||
| |||||||
1 | life maintained or obtained pursuant to this subsection to | ||||||
2 | secure
maintenance are designated as excludable from the | ||||||
3 | gross income of the
maintenance payee under Section | ||||||
4 | 71(b)(1)(B) of the Internal Revenue Code, unless an
| ||||||
5 | agreement or stipulation of the parties otherwise | ||||||
6 | provides. | ||||||
7 | (4) Life insurance may be awarded only at the time of | ||||||
8 | the initial judgment. | ||||||
9 | (5) The payee shall have the sole obligation to pay the | ||||||
10 | premiums. | ||||||
11 | (6) All applications shall be made at the time of the | ||||||
12 | initial judgment and the
court shall be limited to an in | ||||||
13 | camera review of the application in determining whether the
| ||||||
14 | application was made in good faith. | ||||||
15 | (7) The court must consider the ability of the insured | ||||||
16 | spouse to obtain
additional insurance. | ||||||
17 | (Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12; | ||||||
18 | 97-813, eff. 7-13-12.)
| ||||||
19 | (750 ILCS 5/505) (from Ch. 40, par. 505)
| ||||||
20 | Sec. 505. Child support; contempt; penalties.
| ||||||
21 | (a) In a proceeding for dissolution of marriage, legal | ||||||
22 | separation,
declaration of invalidity of marriage, a | ||||||
23 | proceeding for child support
following dissolution of the | ||||||
24 | marriage by a court that lacked personal
jurisdiction over the | ||||||
25 | absent spouse, a proceeding for modification of a
previous |
| ||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||
1 | order for child support under Section 510 of this Act, or any
| |||||||||||||||||||||||||||||||||
2 | proceeding authorized under Section 501 or 601 of this Act, the | |||||||||||||||||||||||||||||||||
3 | court may
order either or both parents owing a duty of support | |||||||||||||||||||||||||||||||||
4 | to a child of the
marriage to pay an amount reasonable and | |||||||||||||||||||||||||||||||||
5 | necessary for the support of the child, without
regard to | |||||||||||||||||||||||||||||||||
6 | marital misconduct. The duty of support owed to a child
| |||||||||||||||||||||||||||||||||
7 | includes the obligation to provide for the reasonable and | |||||||||||||||||||||||||||||||||
8 | necessary
educational, physical, mental and emotional health | |||||||||||||||||||||||||||||||||
9 | needs of the child.
For purposes of this Section, the term | |||||||||||||||||||||||||||||||||
10 | "child" shall include any child under
age 18 and
any child | |||||||||||||||||||||||||||||||||
11 | under age 19 who is still attending high school. For purposes | |||||||||||||||||||||||||||||||||
12 | of this Section, the term "supporting parent" means the parent | |||||||||||||||||||||||||||||||||
13 | obligated to pay support to the other parent.
| |||||||||||||||||||||||||||||||||
14 | (1) The Court shall determine the minimum amount of | |||||||||||||||||||||||||||||||||
15 | support by using the
following guidelines:
| |||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||
24 | (2) The above guidelines shall be applied in each case | |||||||||||||||||||||||||||||||||
25 | unless the court
finds that a deviation from the guidelines | |||||||||||||||||||||||||||||||||
26 | is appropriate after considering the best interest of the |
| |||||||
| |||||||
1 | child in light of the evidence, including, but not limited | ||||||
2 | to, one or more of the following relevant
factors:
| ||||||
3 | (a) the financial resources and needs of the child;
| ||||||
4 | (b) the financial resources and needs of the | ||||||
5 | custodial parent;
| ||||||
6 | (c) the standard of living the child would have | ||||||
7 | enjoyed had the
marriage not been dissolved;
| ||||||
8 | (d) the physical, mental, and emotional needs of | ||||||
9 | the child;
| ||||||
10 | (d-5) the educational needs of the child; and
| ||||||
11 | (e) the financial resources and needs of the | ||||||
12 | supporting non-custodial parent.
| ||||||
13 | If the court deviates from the guidelines, the court's | ||||||
14 | finding
shall state the amount of support that would have | ||||||
15 | been required under the
guidelines, if determinable. The | ||||||
16 | court shall include the reason or reasons for
the variance | ||||||
17 | from the
guidelines.
| ||||||
18 | (2.5) The court, in its discretion, in addition to | ||||||
19 | setting child support pursuant to the guidelines and | ||||||
20 | factors, may order either or both parents owing a duty of | ||||||
21 | support to a child of the marriage to contribute to the | ||||||
22 | following expenses, if determined by the court to be | ||||||
23 | reasonable: | ||||||
24 | (a) health needs not covered by insurance; | ||||||
25 | (b) child care; | ||||||
26 | (c) education; and |
| |||||||
| |||||||
1 | (d) extracurricular activities.
| ||||||
2 | (3) "Net income" is defined as the total of all income | ||||||
3 | from all
sources, minus the following deductions:
| ||||||
4 | (a) Federal income tax (properly calculated | ||||||
5 | withholding or estimated
payments);
| ||||||
6 | (b) State income tax (properly calculated | ||||||
7 | withholding or estimated
payments);
| ||||||
8 | (c) Social Security (FICA payments);
| ||||||
9 | (d) Mandatory retirement contributions required by | ||||||
10 | law or as a
condition of employment;
| ||||||
11 | (e) Union dues;
| ||||||
12 | (f) Dependent and individual | ||||||
13 | health/hospitalization insurance premiums and premiums | ||||||
14 | for life insurance ordered by the court to reasonably | ||||||
15 | secure payment of ordered child support;
| ||||||
16 | (g) Prior obligations of support or maintenance | ||||||
17 | actually paid pursuant
to a court order;
| ||||||
18 | (h) Expenditures for repayment of debts that | ||||||
19 | represent reasonable and
necessary expenses for the | ||||||
20 | production of income, medical expenditures
necessary | ||||||
21 | to preserve life or health, reasonable expenditures | ||||||
22 | for the
benefit of the child and the other parent, | ||||||
23 | exclusive of gifts. The court
shall reduce net income | ||||||
24 | in determining the minimum amount of support to be
| ||||||
25 | ordered only for the period that such payments are due | ||||||
26 | and shall enter an
order containing provisions for its |
| |||||||
| |||||||
1 | self-executing modification upon
termination of such | ||||||
2 | payment period;
| ||||||
3 | (i) Foster care payments paid by the Department of | ||||||
4 | Children and Family Services for providing licensed | ||||||
5 | foster care to a foster child.
| ||||||
6 | (4) In cases where the court order provides for
| ||||||
7 | health/hospitalization insurance coverage pursuant to | ||||||
8 | Section 505.2 of
this Act, the premiums for that insurance, | ||||||
9 | or that portion of the premiums
for which the supporting | ||||||
10 | party is responsible in the case of insurance
provided | ||||||
11 | through an employer's health insurance plan where
the | ||||||
12 | employer pays a portion of the premiums, shall be | ||||||
13 | subtracted
from net income in determining the minimum | ||||||
14 | amount of support to be ordered.
| ||||||
15 | (4.5) In a proceeding for child support following | ||||||
16 | dissolution of the
marriage by a court that lacked personal | ||||||
17 | jurisdiction over the absent spouse,
and in which the court | ||||||
18 | is requiring payment of support for the period before
the | ||||||
19 | date an order for current support is entered, there is a | ||||||
20 | rebuttable
presumption
that the supporting party's net | ||||||
21 | income for the prior period was the same as his
or her net | ||||||
22 | income at the time the order for current support is | ||||||
23 | entered.
| ||||||
24 | (5) If the net income cannot be determined because of | ||||||
25 | default or any
other reason, the court shall order support | ||||||
26 | in an amount considered
reasonable in the particular case. |
| |||||||
| |||||||
1 | The final order in all cases shall
state the support level | ||||||
2 | in dollar amounts.
However, if the
court finds that the | ||||||
3 | child support amount cannot be expressed exclusively as a
| ||||||
4 | dollar amount because all or a portion of the payor's net | ||||||
5 | income is uncertain
as to source, time of payment, or | ||||||
6 | amount, the court may order a percentage
amount of support | ||||||
7 | in addition to a specific dollar amount and enter
such | ||||||
8 | other orders as may be necessary to determine and enforce, | ||||||
9 | on a timely
basis, the applicable support ordered.
| ||||||
10 | (6) If (i) the supporting non-custodial parent was | ||||||
11 | properly served with a request
for
discovery of financial | ||||||
12 | information relating to the supporting non-custodial | ||||||
13 | parent's
ability to
provide child support, (ii) the | ||||||
14 | supporting non-custodial parent failed to comply with the
| ||||||
15 | request,
despite having been ordered to do so by the court, | ||||||
16 | and (iii) the supporting non-custodial
parent is not | ||||||
17 | present at the hearing to determine support despite having
| ||||||
18 | received
proper notice, then any relevant financial | ||||||
19 | information concerning the
supporting non-custodial | ||||||
20 | parent's ability to provide child support that was obtained
| ||||||
21 | pursuant to
subpoena and proper notice shall be admitted | ||||||
22 | into evidence without the need to
establish any further | ||||||
23 | foundation for its admission.
| ||||||
24 | (a-5) In an action to enforce an order for support based on | ||||||
25 | the
respondent's failure
to make support payments as required | ||||||
26 | by the order, notice of proceedings to
hold the respondent in |
| |||||||
| |||||||
1 | contempt for that failure may be served on the
respondent by | ||||||
2 | personal service or by regular mail addressed to the | ||||||
3 | respondent's
last known address. The respondent's last known | ||||||
4 | address may be determined from
records of the clerk of the | ||||||
5 | court, from the Federal Case Registry of Child
Support Orders, | ||||||
6 | or by any other reasonable means.
| ||||||
7 | (b) Failure of either parent to comply with an order to pay | ||||||
8 | support shall
be punishable as in other cases of civil | ||||||
9 | contempt. In addition to other
penalties provided by law the | ||||||
10 | Court may, after finding the parent guilty
of contempt, order | ||||||
11 | that the parent be:
| ||||||
12 | (1) placed on probation with such conditions of | ||||||
13 | probation as the Court
deems advisable;
| ||||||
14 | (2) sentenced to periodic imprisonment for a period not | ||||||
15 | to exceed 6
months; provided, however, that the Court may | ||||||
16 | permit the parent to be
released for periods of time during | ||||||
17 | the day or night to:
| ||||||
18 | (A) work; or
| ||||||
19 | (B) conduct a business or other self-employed | ||||||
20 | occupation.
| ||||||
21 | The Court may further order any part or all of the earnings | ||||||
22 | of a parent
during a sentence of periodic imprisonment paid to | ||||||
23 | the Clerk of the Circuit
Court or to the parent having the | ||||||
24 | majority of residential responsibility custody or to the | ||||||
25 | guardian having the majority of residential responsibility | ||||||
26 | custody
of the children of the sentenced parent for the support |
| |||||||
| |||||||
1 | of said
children until further order of the Court.
| ||||||
2 | If a parent who is found guilty of contempt for failure to | ||||||
3 | comply with an order to pay support is a person who conducts a | ||||||
4 | business or who is self-employed, the court in addition to | ||||||
5 | other penalties provided by law may order that the parent do | ||||||
6 | one or more of the following: (i) provide to the court monthly | ||||||
7 | financial statements showing income and expenses from the | ||||||
8 | business or the self-employment; (ii) seek employment and | ||||||
9 | report periodically to the court with a diary, listing, or | ||||||
10 | other memorandum of his or her employment search efforts; or | ||||||
11 | (iii) report to the Department of Employment Security for job | ||||||
12 | search services to find employment that will be subject to | ||||||
13 | withholding for child support. | ||||||
14 | If there is a unity of interest and ownership sufficient to | ||||||
15 | render no
financial separation between a supporting | ||||||
16 | non-custodial parent and another person or
persons or business | ||||||
17 | entity, the court may pierce the ownership veil of the
person, | ||||||
18 | persons, or business entity to discover assets of the | ||||||
19 | supporting non-custodial
parent held in the name of that | ||||||
20 | person, those persons, or that business entity.
The following | ||||||
21 | circumstances are sufficient to authorize a court to order
| ||||||
22 | discovery of the assets of a person, persons, or business | ||||||
23 | entity and to compel
the application of any discovered assets | ||||||
24 | toward payment on the judgment for
support:
| ||||||
25 | (1) the supporting non-custodial parent and the | ||||||
26 | person, persons, or business entity
maintain records |
| |||||||
| |||||||
1 | together.
| ||||||
2 | (2) the supporting non-custodial parent and the | ||||||
3 | person, persons, or business entity
fail to maintain an | ||||||
4 | arm's length relationship between themselves with regard | ||||||
5 | to
any assets.
| ||||||
6 | (3) the supporting non-custodial parent transfers | ||||||
7 | assets to the person, persons,
or business entity with the | ||||||
8 | intent to perpetrate a fraud on the custodial
parent | ||||||
9 | receiving the support .
| ||||||
10 | With respect to assets which
are real property, no order | ||||||
11 | entered under this paragraph shall affect the
rights of bona | ||||||
12 | fide purchasers, mortgagees, judgment creditors, or other lien
| ||||||
13 | holders who acquire their interests in the property prior to | ||||||
14 | the time a notice
of lis pendens pursuant to the Code of Civil | ||||||
15 | Procedure or a copy of the order
is placed of record in the | ||||||
16 | office of the recorder of deeds for the county in
which the | ||||||
17 | real property is located.
| ||||||
18 | The court may also order in cases where the parent is 90 | ||||||
19 | days or more
delinquent in payment of support or has been | ||||||
20 | adjudicated in arrears in an
amount equal to 90 days obligation | ||||||
21 | or more, that the parent's Illinois driving
privileges be | ||||||
22 | suspended until the court
determines that the parent is in | ||||||
23 | compliance with the order of support.
The court may also order | ||||||
24 | that the parent be issued a family financial
responsibility | ||||||
25 | driving permit that would allow limited driving privileges for
| ||||||
26 | employment and medical purposes in accordance with Section |
| |||||||
| |||||||
1 | 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit | ||||||
2 | court shall certify the order
suspending the driving privileges | ||||||
3 | of the parent or granting the issuance of a
family financial | ||||||
4 | responsibility driving permit to the Secretary of State on
| ||||||
5 | forms prescribed by the Secretary. Upon receipt of the | ||||||
6 | authenticated
documents, the Secretary of State shall suspend | ||||||
7 | the parent's driving privileges
until further order of the | ||||||
8 | court and shall, if ordered by the court, subject to
the | ||||||
9 | provisions of Section 7-702.1 of the Illinois Vehicle Code, | ||||||
10 | issue a family
financial responsibility driving permit to the | ||||||
11 | parent.
| ||||||
12 | In addition to the penalties or punishment that may be | ||||||
13 | imposed under this
Section, any person whose conduct | ||||||
14 | constitutes a violation of Section 15 of the
Non-Support | ||||||
15 | Punishment Act may be prosecuted under that Act, and a person
| ||||||
16 | convicted under that Act may be sentenced in accordance with | ||||||
17 | that Act. The
sentence may include but need not be limited to a | ||||||
18 | requirement that the person
perform community service under | ||||||
19 | Section 50 of that Act or participate in a work
alternative | ||||||
20 | program under Section 50 of that Act. A person may not be | ||||||
21 | required
to participate in a work alternative program under | ||||||
22 | Section 50 of that Act if
the person is currently participating | ||||||
23 | in a work program pursuant to Section
505.1 of this Act.
| ||||||
24 | A support obligation, or any portion of a support | ||||||
25 | obligation, which becomes
due and remains unpaid as of the end | ||||||
26 | of each month, excluding the child support that was due for |
| |||||||
| |||||||
1 | that month to the extent that it was not paid in that month, | ||||||
2 | shall accrue simple interest as set forth in Section 12-109 of | ||||||
3 | the Code of Civil Procedure.
An order for support entered or | ||||||
4 | modified on or after January 1, 2006 shall
contain a statement | ||||||
5 | that a support obligation required under the order, or any
| ||||||
6 | portion of a support obligation required under the order, that | ||||||
7 | becomes due and
remains unpaid as of the end of each month, | ||||||
8 | excluding the child support that was due for that month to the | ||||||
9 | extent that it was not paid in that month, shall accrue simple | ||||||
10 | interest as set forth in Section 12-109 of the Code of Civil | ||||||
11 | Procedure. Failure to include the statement in the order for | ||||||
12 | support does
not affect the validity of the order or the | ||||||
13 | accrual of interest as provided in
this Section.
| ||||||
14 | (c) A one-time charge of 20% is imposable upon the amount | ||||||
15 | of
past-due child support owed on July 1, 1988 which has | ||||||
16 | accrued under a
support order entered by the court. The charge | ||||||
17 | shall be imposed in
accordance with the provisions of Section | ||||||
18 | 10-21 of the Illinois Public Aid
Code and shall be enforced by | ||||||
19 | the court upon petition.
| ||||||
20 | (d) Any new or existing support order entered by the court
| ||||||
21 | under this Section shall be deemed to be a series of judgments | ||||||
22 | against the
person obligated to pay support thereunder, each | ||||||
23 | such judgment to be in the
amount of each payment or | ||||||
24 | installment of support and each such judgment to
be deemed | ||||||
25 | entered as of the date the corresponding payment or installment
| ||||||
26 | becomes due under the terms of the support order. Each such |
| |||||||
| |||||||
1 | judgment shall
have the full force, effect and attributes of | ||||||
2 | any other judgment of this
State, including the ability to be | ||||||
3 | enforced.
Notwithstanding any other State or local law to the | ||||||
4 | contrary, a lien arises by operation of law against the real | ||||||
5 | and personal property of
the supporting noncustodial parent for | ||||||
6 | each installment of overdue support owed by the supporting
| ||||||
7 | noncustodial parent.
| ||||||
8 | (e) When child support is to be paid through the clerk of | ||||||
9 | the court in a
county of 1,000,000 inhabitants or less, the | ||||||
10 | order shall direct the obligor
to pay to the clerk, in addition | ||||||
11 | to the child support payments, all fees
imposed by the county | ||||||
12 | board under paragraph (3) of subsection (u) of
Section 27.1 of | ||||||
13 | the Clerks of Courts Act. Unless paid in cash or pursuant to
an | ||||||
14 | order for withholding, the payment of the fee shall be by a | ||||||
15 | separate
instrument from the support payment and shall be made | ||||||
16 | to the order of the
Clerk.
| ||||||
17 | (f) All orders for support, when entered or
modified, shall | ||||||
18 | include a provision requiring the obligor to notify
the court | ||||||
19 | and, in cases in which a party is receiving child and spouse
| ||||||
20 | services under Article X of the Illinois Public Aid Code, the
| ||||||
21 | Department of Healthcare and Family Services, within 7 days, | ||||||
22 | (i) of the name and address
of any new employer of the obligor, | ||||||
23 | (ii) whether the obligor has access to
health insurance | ||||||
24 | coverage through the employer or other group coverage and,
if | ||||||
25 | so, the policy name and number and the names of persons covered | ||||||
26 | under
the policy , except only the initials of any covered |
| |||||||
| |||||||
1 | minors shall be included , and (iii) of any new residential or | ||||||
2 | mailing address or telephone
number of the supporting | ||||||
3 | non-custodial parent. In any subsequent action to enforce a
| ||||||
4 | support order, upon a sufficient showing that a diligent effort | ||||||
5 | has been made
to ascertain the location of the supporting | ||||||
6 | non-custodial parent, service of process or
provision of notice | ||||||
7 | necessary in the case may be made at the last known
address of | ||||||
8 | the supporting non-custodial parent in any manner expressly | ||||||
9 | provided by the
Code of Civil Procedure or this Act, which | ||||||
10 | service shall be sufficient for
purposes of due process.
| ||||||
11 | (g) An order for support shall include a date on which the | ||||||
12 | current
support obligation terminates. The termination date | ||||||
13 | shall be no earlier than
the date on which the child covered by | ||||||
14 | the order will attain the age of
18. However, if the child will | ||||||
15 | not graduate from high school until after
attaining the age of | ||||||
16 | 18, then the termination date shall be no earlier than the
| ||||||
17 | earlier of the date on which the child's high school graduation | ||||||
18 | will occur or
the date on which the child will attain the age | ||||||
19 | of 19. The order for support
shall state that the termination | ||||||
20 | date does not apply to any arrearage that may
remain unpaid on | ||||||
21 | that date. Nothing in this subsection shall be construed to
| ||||||
22 | prevent the court from modifying the order or terminating the | ||||||
23 | order in the
event the child is otherwise emancipated.
| ||||||
24 | (g-5) If there is an unpaid arrearage or delinquency (as | ||||||
25 | those terms are defined in the Income Withholding for Support | ||||||
26 | Act) equal to at least one month's support obligation on the |
| |||||||
| |||||||
1 | termination date stated in the order for support or, if there | ||||||
2 | is no termination date stated in the order, on the date the | ||||||
3 | child attains the age of majority or is otherwise emancipated, | ||||||
4 | the periodic amount required to be paid for current support of | ||||||
5 | that child immediately prior to that date shall automatically | ||||||
6 | continue to be an obligation, not as current support but as | ||||||
7 | periodic payment toward satisfaction of the unpaid arrearage or | ||||||
8 | delinquency. That periodic payment shall be in addition to any | ||||||
9 | periodic payment previously required for satisfaction of the | ||||||
10 | arrearage or delinquency. The total periodic amount to be paid | ||||||
11 | toward satisfaction of the arrearage or delinquency may be | ||||||
12 | enforced and collected by any method provided by law for | ||||||
13 | enforcement and collection of child support, including but not | ||||||
14 | limited to income withholding under the Income Withholding for | ||||||
15 | Support Act. Each order for support entered or modified on or | ||||||
16 | after the effective date of this amendatory Act of the 93rd | ||||||
17 | General Assembly must contain a statement notifying the parties | ||||||
18 | of the requirements of this subsection. Failure to include the | ||||||
19 | statement in the order for support does not affect the validity | ||||||
20 | of the order or the operation of the provisions of this | ||||||
21 | subsection with regard to the order. This subsection shall not | ||||||
22 | be construed to prevent or affect the establishment or | ||||||
23 | modification of an order for support of a minor child or the | ||||||
24 | establishment or modification of an order for support of a | ||||||
25 | non-minor child or educational expenses under Section 513 of | ||||||
26 | this Act.
|
| |||||||
| |||||||
1 | (h) An order entered under this Section shall include a | ||||||
2 | provision requiring
the obligor to report to the obligee and to | ||||||
3 | the clerk of court within 10 days
each time the obligor obtains | ||||||
4 | new employment, and each time the obligor's
employment is | ||||||
5 | terminated for any reason. The report shall be in writing and
| ||||||
6 | shall, in the case of new employment, include the name and | ||||||
7 | address of the new
employer. Failure to report new employment | ||||||
8 | or the termination of current
employment, if coupled with | ||||||
9 | nonpayment of support for a period in excess of 60
days, is | ||||||
10 | indirect criminal contempt. For any obligor arrested for | ||||||
11 | failure to
report new employment bond shall be set in the | ||||||
12 | amount of the child support that
should have been paid during | ||||||
13 | the period of unreported employment. An order
entered under | ||||||
14 | this Section shall also include a provision requiring the | ||||||
15 | obligor
and obligee parents to advise each other of a change in | ||||||
16 | residence within 5 days
of the change except when the court | ||||||
17 | finds that the physical, mental, or
emotional health of a party | ||||||
18 | or that of a child, or both, would be
seriously endangered by | ||||||
19 | disclosure of the party's address.
| ||||||
20 | (i) The court does not lose the powers of contempt, | ||||||
21 | driver's license
suspension, or other child support | ||||||
22 | enforcement mechanisms, including, but
not limited to, | ||||||
23 | criminal prosecution as set forth in this Act, upon the
| ||||||
24 | emancipation of the minor child or children.
| ||||||
25 | (Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12; | ||||||
26 | 97-813, eff. 7-13-12; 97-878, eff. 8-2-12; 97-941, eff. 1-1-13; |
| |||||||
| |||||||
1 | 97-1029, eff. 1-1-13; 98-463, eff. 8-16-13.)
| ||||||
2 | (750 ILCS 5/508) (from Ch. 40, par. 508)
| ||||||
3 | Sec. 508. Attorney's Fees; Client's Rights and | ||||||
4 | Responsibilities Respecting
Fees and
Costs. | ||||||
5 | (a) The court from time to time, after due notice and | ||||||
6 | hearing, and after
considering the financial resources of the | ||||||
7 | parties, may order any party to
pay a reasonable amount for his | ||||||
8 | own or the other party's costs and
attorney's fees. Interim | ||||||
9 | attorney's fees and costs may be awarded from the
opposing | ||||||
10 | party, in a pre-judgment dissolution proceeding in accordance | ||||||
11 | with subsection (c-1) of Section 501 and in any other | ||||||
12 | proceeding under this subsection. At the
conclusion of any | ||||||
13 | pre-judgment dissolution proceeding under this subsection, | ||||||
14 | contribution to attorney's fees and costs may be
awarded from | ||||||
15 | the opposing party in accordance with subsection (j) of Section
| ||||||
16 | 503 and in any other proceeding under this subsection. Fees and | ||||||
17 | costs may be awarded in any proceeding to counsel from a former | ||||||
18 | client in
accordance with subsection (c) of
this Section.
| ||||||
19 | Awards may be made in connection with the following:
| ||||||
20 | (1) The maintenance or defense of any proceeding under | ||||||
21 | this Act.
| ||||||
22 | (2) The enforcement or modification of any order or | ||||||
23 | judgment
under this Act.
| ||||||
24 | (3) The defense of an appeal of any order or judgment | ||||||
25 | under
this Act, including the defense of appeals of |
| |||||||
| |||||||
1 | post-judgment orders.
| ||||||
2 | (3.1) The prosecution of any claim on appeal (if the | ||||||
3 | prosecuting party
has
substantially prevailed).
| ||||||
4 | (4) The maintenance or defense of a petition brought | ||||||
5 | under
Section 2-1401 of the Code of Civil Procedure seeking | ||||||
6 | relief from a
final order or judgment under this Act. Fees | ||||||
7 | incurred with respect to motions under
Section 2-1401 of | ||||||
8 | the Code of Civil Procedure may be granted only if the
| ||||||
9 | underlying motion is granted.
| ||||||
10 | (5) The costs and legal services of an attorney | ||||||
11 | rendered in
preparation of the commencement of the | ||||||
12 | proceeding brought under this Act.
| ||||||
13 | (6) Ancillary litigation incident to, or reasonably | ||||||
14 | connected with, a
proceeding under this Act.
| ||||||
15 | (7) Costs and attorney's fees incurred in an action | ||||||
16 | under the Hague Convention on the Civil Aspects of | ||||||
17 | International Child Abduction. | ||||||
18 | All petitions for or relating to interim fees and costs | ||||||
19 | under this subsection shall be accompanied by an affidavit as | ||||||
20 | to the factual basis for the relief requested and all hearings | ||||||
21 | relative to any such petition shall be scheduled expeditiously | ||||||
22 | by the court. All provisions for contribution under this | ||||||
23 | subsection shall also be subject to paragraphs (3), (4), and | ||||||
24 | (5) of subsection (j) of Section 503. | ||||||
25 | The court may order that the award of attorney's fees and | ||||||
26 | costs
(including an interim or contribution award) shall be |
| |||||||
| |||||||
1 | paid directly to the
attorney, who may enforce the order in his | ||||||
2 | or her name, or that it shall be
paid to
the appropriate party. | ||||||
3 | Judgment may be entered and enforcement had
accordingly. Except | ||||||
4 | as otherwise provided in subdivision (e)(1) of this
Section, | ||||||
5 | subsection (c) of this Section
is exclusive as to the right of | ||||||
6 | any counsel
(or
former counsel) of record to petition a court | ||||||
7 | for an award and judgment for
final fees and costs during the | ||||||
8 | pendency of a proceeding under this Act.
| ||||||
9 | A petition for temporary attorney's fees in a post-judgment | ||||||
10 | case shall be heard on a non-evidentiary,
summary basis. | ||||||
11 | (b) In every proceeding for the enforcement of an order or | ||||||
12 | judgment
when the court finds that the failure to comply with | ||||||
13 | the order or judgment
was without compelling cause or | ||||||
14 | justification, the court shall order the
party against
whom the | ||||||
15 | proceeding is brought to pay promptly the costs and reasonable
| ||||||
16 | attorney's
fees of the prevailing party.
If non-compliance is | ||||||
17 | with respect to a discovery order, the non-compliance is
| ||||||
18 | presumptively without compelling cause or justification, and | ||||||
19 | the presumption
may only be rebutted by clear and convincing | ||||||
20 | evidence. If at any time a court
finds that a hearing under | ||||||
21 | this Act was precipitated or conducted for any
improper | ||||||
22 | purpose, the court shall allocate fees and costs of all parties | ||||||
23 | for
the hearing to the party or counsel found to have acted | ||||||
24 | improperly. Improper
purposes include, but are not limited to, | ||||||
25 | harassment, unnecessary
delay, or other acts needlessly | ||||||
26 | increasing the cost of litigation.
|
| |||||||
| |||||||
1 | (c) Final hearings for attorney's fees and costs against an | ||||||
2 | attorney's own
client, pursuant to a Petition for Setting Final | ||||||
3 | Fees and Costs of either a
counsel or a client, shall be | ||||||
4 | governed by the following:
| ||||||
5 | (1) No petition of a counsel of record may be filed | ||||||
6 | against a client
unless the filing counsel previously has | ||||||
7 | been granted leave to withdraw as
counsel of record or has | ||||||
8 | filed a motion for leave to withdraw as counsel. On
receipt
| ||||||
9 | of a petition of a client under this subsection (c), the | ||||||
10 | counsel of record
shall promptly file a motion for leave to | ||||||
11 | withdraw as counsel. If the client
and the counsel of
| ||||||
12 | record agree, however, a hearing on the motion for leave to | ||||||
13 | withdraw as counsel
filed pursuant to this
subdivision | ||||||
14 | (c)(1) may be deferred until completion of any alternative | ||||||
15 | dispute
resolution procedure under subdivision (c)(4). As | ||||||
16 | to any
Petition for Setting Final Fees and Costs against a | ||||||
17 | client or counsel over whom
the court has not obtained
| ||||||
18 | jurisdiction, a separate summons shall issue. Whenever a | ||||||
19 | separate summons is
not required, original notice as to a | ||||||
20 | Petition for Setting Final Fees and Costs
may be given, and | ||||||
21 | documents
served, in accordance with Illinois Supreme | ||||||
22 | Court Rules 11 and 12.
| ||||||
23 | (2) No final hearing under this subsection (c) is | ||||||
24 | permitted
unless: (i) the
counsel and the client had | ||||||
25 | entered into a written engagement agreement at the
time the | ||||||
26 | client retained the counsel (or reasonably soon |
| |||||||
| |||||||
1 | thereafter) and the
agreement
meets the requirements of | ||||||
2 | subsection (f); (ii) the written engagement agreement
is | ||||||
3 | attached to an affidavit of counsel that is filed with the | ||||||
4 | petition or with
the
counsel's response to a client's | ||||||
5 | petition; (iii) judgment in any contribution
hearing on | ||||||
6 | behalf of the client has been entered or the right to a | ||||||
7 | contribution
hearing under subsection (j) of Section 503 | ||||||
8 | has been waived; (iv) the counsel
has withdrawn as
counsel | ||||||
9 | of record; and (v) the petition seeks adjudication of all | ||||||
10 | unresolved
claims for fees and costs between the counsel | ||||||
11 | and the client. Irrespective of a
Petition for Setting | ||||||
12 | Final Fees and Costs being heard in conjunction with an
| ||||||
13 | original proceeding under this Act, the relief requested | ||||||
14 | under a Petition for
Setting Final Fees and Costs | ||||||
15 | constitutes a distinct cause of action. A pending
but | ||||||
16 | undetermined
Petition for Setting Final Fees and Costs | ||||||
17 | shall not affect appealability of
any judgment or other | ||||||
18 | adjudication in the original proceeding.
| ||||||
19 | (3) The determination of reasonable attorney's fees | ||||||
20 | and costs either under
this
subsection (c), whether | ||||||
21 | initiated by a counsel or a client, or in an
independent | ||||||
22 | proceeding for services within the scope of subdivisions | ||||||
23 | (1)
through (5) of subsection (a), is within the sound | ||||||
24 | discretion of the trial
court. The court shall first | ||||||
25 | consider the written engagement agreement and, if
the court | ||||||
26 | finds that the former client and the filing counsel, |
| |||||||
| |||||||
1 | pursuant to
their written engagement agreement, entered | ||||||
2 | into a contract which meets
applicable requirements of | ||||||
3 | court rules and addresses all material terms, then
the | ||||||
4 | contract shall be enforceable in accordance with its terms, | ||||||
5 | subject to the
further requirements of this subdivision | ||||||
6 | (c)(3). Before ordering enforcement,
however, the court
| ||||||
7 | shall consider the performance pursuant to the contract. | ||||||
8 | Any amount awarded
by the court must be found to be fair | ||||||
9 | compensation for the services, pursuant
to the contract, | ||||||
10 | that the court finds were reasonable and necessary. Quantum
| ||||||
11 | meruit principles shall govern any award for legal services | ||||||
12 | performed that is
not based on the terms of the written | ||||||
13 | engagement agreement (except that, if a
court expressly | ||||||
14 | finds in a particular case that aggregate billings to a | ||||||
15 | client
were unconscionably excessive, the court in its | ||||||
16 | discretion may reduce the award
otherwise determined | ||||||
17 | appropriate or deny fees altogether).
| ||||||
18 | (4) No final hearing under this subsection (c) is | ||||||
19 | permitted unless any
controversy
over fees and costs (that | ||||||
20 | is not otherwise subject to some form of alternative
| ||||||
21 | dispute resolution) has first been submitted to mediation, | ||||||
22 | arbitration, or any
other court approved alternative | ||||||
23 | dispute resolution procedure, except as
follows:
| ||||||
24 | (A) In any circuit court for a single county with a | ||||||
25 | population in excess
of
1,000,000, the requirement of | ||||||
26 | the controversy being submitted to an alternative
|
| |||||||
| |||||||
1 | dispute resolution procedure is mandatory unless the | ||||||
2 | client and the counsel
both affirmatively opt out of | ||||||
3 | such procedures; or
| ||||||
4 | (B) In any other circuit court, the requirement of | ||||||
5 | the controversy being
submitted to an alternative | ||||||
6 | dispute resolution procedure is mandatory only if
| ||||||
7 | neither the client nor the counsel affirmatively opts | ||||||
8 | out of such
procedures.
| ||||||
9 | After completion of any such procedure (or after one or | ||||||
10 | both sides has
opted
out of such procedures), if the | ||||||
11 | dispute is unresolved, any pending motion
for leave to | ||||||
12 | withdraw as counsel shall be promptly granted and a final | ||||||
13 | hearing
under this subsection
(c) shall be expeditiously | ||||||
14 | set and completed.
| ||||||
15 | (5) A petition (or a praecipe for fee hearing without | ||||||
16 | the petition) shall
be
filed no later than the end of the | ||||||
17 | period in which it is permissible to file a
motion pursuant | ||||||
18 | to Section 2-1203 of the Code of Civil Procedure. A | ||||||
19 | praecipe
for fee hearing shall be dismissed if a Petition | ||||||
20 | for Setting Final Fees and
Costs is not filed within 60 | ||||||
21 | days after the filing of the praecipe. A counsel
who | ||||||
22 | becomes a party by filing a Petition for Setting Final Fees | ||||||
23 | and Costs, or
as a result of the client
filing a Petition | ||||||
24 | for Setting Final Fees and Costs, shall not be entitled to
| ||||||
25 | exercise the right to a
substitution of a judge without | ||||||
26 | cause under subdivision (a)(2) of Section
2-1001 of the |
| |||||||
| |||||||
1 | Code of Civil Procedure. Each of the foregoing deadlines | ||||||
2 | for the filing of a praecipe or a petition shall be:
| ||||||
3 | (A) tolled if a motion is filed under Section 2-1203 of | ||||||
4 | the Code of Civil Procedure, in which instance a petition | ||||||
5 | (or a praecipe) shall be filed no later than 30 days | ||||||
6 | following disposition of all Section 2-1203 motions; or | ||||||
7 | (B) tolled if a notice of appeal is filed, in which | ||||||
8 | instance a petition (or praecipe) shall be filed no later | ||||||
9 | than 30 days following the date jurisdiction on the issue | ||||||
10 | appealed is returned to the trial court. | ||||||
11 | If a praecipe has been timely filed, then by timely filed | ||||||
12 | written stipulation between counsel and client (or former | ||||||
13 | client), the deadline for the filing of a petition may be | ||||||
14 | extended for a period of up to one year. | ||||||
15 | (d) A consent judgment, in favor of a current counsel of | ||||||
16 | record against his
or her own client for a specific amount in a | ||||||
17 | marital settlement agreement,
dissolution judgment, or any | ||||||
18 | other instrument involving the other litigant, is
prohibited. A | ||||||
19 | consent judgment between client and counsel, however, is
| ||||||
20 | permissible if it is entered pursuant to a verified petition | ||||||
21 | for entry of
consent judgment, supported by an affidavit of the | ||||||
22 | counsel of record that
includes the counsel's representation | ||||||
23 | that the client has been provided an itemization of the billing | ||||||
24 | or billings to the client, detailing
hourly costs, time spent, | ||||||
25 | and tasks performed, and by an affidavit of the
client | ||||||
26 | acknowledging receipt of that documentation, awareness
of the |
| |||||||
| |||||||
1 | right to a hearing, the right to be represented by counsel | ||||||
2 | (other than
counsel to whom the consent judgment is in favor), | ||||||
3 | and the right to be present
at
the time of presentation of the | ||||||
4 | petition, and agreement to the terms of the
judgment. The | ||||||
5 | petition may be filed at any time during which it is | ||||||
6 | permissible
for counsel of record to file a petition (or a | ||||||
7 | praecipe) for a final fee
hearing, except that no such petition | ||||||
8 | for entry of consent judgment may be
filed before adjudication | ||||||
9 | (or waiver) of the client's right to contribution
under | ||||||
10 | subsection (j) of Section 503 or filed after the filing of a
| ||||||
11 | petition (or a praecipe) by counsel of record for a fee hearing | ||||||
12 | under
subsection (c) if the petition (or praecipe) remains | ||||||
13 | pending. No consent
security arrangement between a client and a | ||||||
14 | counsel of record, pursuant to
which assets of a client are | ||||||
15 | collateralized to secure payment of legal fees or
costs, is | ||||||
16 | permissible unless approved in advance by the court as being
| ||||||
17 | reasonable under the circumstances.
| ||||||
18 | (e) Counsel may pursue an award and judgment against a | ||||||
19 | former client for
legal
fees and costs in an independent | ||||||
20 | proceeding in the following circumstances:
| ||||||
21 | (1) While a case under this Act is still pending, a | ||||||
22 | former counsel may pursue
such an award and judgment at any | ||||||
23 | time subsequent to 90 days after the entry of
an order | ||||||
24 | granting counsel leave to withdraw; and
| ||||||
25 | (2) After the close of the period during which a | ||||||
26 | petition (or praecipe)
may be filed under subdivision |
| |||||||
| |||||||
1 | (c)(5), if no such petition (or praecipe) for
the
counsel | ||||||
2 | remains pending, any counsel or former counsel may pursue | ||||||
3 | such an award
and judgment in an independent proceeding.
| ||||||
4 | In an independent proceeding, the prior applicability of this | ||||||
5 | Section
shall in no way be deemed to have diminished any other | ||||||
6 | right of any counsel (or
former counsel) to pursue an award and | ||||||
7 | judgment for legal fees and costs on the
basis of remedies that | ||||||
8 | may otherwise exist under applicable law; and the limitations | ||||||
9 | period for breach of contract shall apply. In an
independent | ||||||
10 | proceeding under subdivision (e)(1) in which the former counsel | ||||||
11 | had
represented a former client in a dissolution case that is | ||||||
12 | still pending, the former
client may bring
in his or her spouse | ||||||
13 | as a third-party defendant, provided on or before the
final | ||||||
14 | date for filing a petition (or praecipe) under subsection (c), | ||||||
15 | the party
files an appropriate third-party complaint under | ||||||
16 | Section 2-406 of the Code of
Civil Procedure. In any such case, | ||||||
17 | any judgment later obtained by the
former counsel shall be | ||||||
18 | against both spouses or ex-spouses, jointly and
severally | ||||||
19 | (except that, if a hearing under subsection (j) of Section 503 | ||||||
20 | has
already been concluded and the court hearing the | ||||||
21 | contribution issue has imposed
a percentage allocation between | ||||||
22 | the parties as to
fees and costs otherwise being adjudicated in | ||||||
23 | the independent proceeding, the
allocation
shall be applied | ||||||
24 | without deviation by the court in the independent proceeding
| ||||||
25 | and a separate judgment shall be entered against each spouse | ||||||
26 | for the
appropriate
amount). After the period for the |
| |||||||
| |||||||
1 | commencement of a proceeding under
subsection (c), the | ||||||
2 | provisions of this Section (other than the standard set
forth | ||||||
3 | in subdivision (c)(3) and the terms respecting consent security
| ||||||
4 | arrangements in subsection (d) of this Section 508) shall be | ||||||
5 | inapplicable.
| ||||||
6 | The changes made by this amendatory Act of the 94th General | ||||||
7 | Assembly are declarative of existing law.
| ||||||
8 | (f) Unless the Supreme Court by rule addresses the matters | ||||||
9 | set out in this
subsection (f), a written engagement agreement | ||||||
10 | within the scope
of subdivision (c)(2) shall have appended to | ||||||
11 | it verbatim the following
Statement:
| ||||||
12 | "STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
| ||||||
13 | (1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement | ||||||
14 | agreement, prepared
by the counsel, shall clearly address the | ||||||
15 | objectives of representation and
detail the fee arrangement, | ||||||
16 | including all material terms. If fees are to be
based on | ||||||
17 | criteria apart from, or in addition to, hourly rates, such | ||||||
18 | criteria
(e.g., unique time demands and/or utilization of | ||||||
19 | unique expertise) shall be
delineated. The client shall receive | ||||||
20 | a copy of the written engagement
agreement and any additional | ||||||
21 | clarification requested and is advised not to
sign any such | ||||||
22 | agreement which the client finds to be unsatisfactory or does
| ||||||
23 | not understand.
| ||||||
24 | (2) REPRESENTATION. Representation will commence upon the | ||||||
25 | signing of the
written engagement agreement. The counsel will |
| |||||||
| |||||||
1 | provide competent
representation, which requires legal | ||||||
2 | knowledge, skill, thoroughness and
preparation to handle those | ||||||
3 | matters set forth in the written engagement
agreement. Once | ||||||
4 | employed, the counsel will act with reasonable diligence and
| ||||||
5 | promptness, as well as use his best efforts on behalf of the | ||||||
6 | client, but he
cannot guarantee results. The counsel will abide | ||||||
7 | by the client's decision
concerning the objectives of | ||||||
8 | representation, including whether or not to accept
an offer of | ||||||
9 | settlement, and will endeavor to explain any matter to the | ||||||
10 | extent
reasonably necessary to permit the client to make | ||||||
11 | informed decisions regarding
representation. During the course | ||||||
12 | of representation and afterwards, the
counsel
may not use or | ||||||
13 | reveal a client's confidence or secrets, except as required or
| ||||||
14 | permitted by law.
| ||||||
15 | (3) COMMUNICATION. The counsel will keep the client | ||||||
16 | reasonably informed
about the status of representation and will | ||||||
17 | promptly respond to reasonable
requests for information, | ||||||
18 | including any reasonable request for an estimate
respecting | ||||||
19 | future costs of the representation or an appropriate portion of | ||||||
20 | it.
The client shall be truthful in all discussions with the | ||||||
21 | counsel and provide
all information or documentation required | ||||||
22 | to enable the counsel to provide
competent representation. | ||||||
23 | During representation, the client is entitled to
receive all | ||||||
24 | pleadings and substantive documents prepared on behalf of the
| ||||||
25 | client and every document received from any other counsel of | ||||||
26 | record. At the
end of the representation and on written request |
| |||||||
| |||||||
1 | from the client, the counsel
will return to the client all | ||||||
2 | original documents and exhibits. In the event
that the counsel | ||||||
3 | withdraws from representation, or is discharged by the client,
| ||||||
4 | the counsel will turn over to the substituting counsel (or, if | ||||||
5 | no
substitutions, to the client) all original documents and | ||||||
6 | exhibits together with
complete copies of all pleadings and | ||||||
7 | discovery within thirty (30) days of the
counsel's withdrawal | ||||||
8 | or discharge.
| ||||||
9 | (4) ETHICAL CONDUCT. The counsel cannot be required to | ||||||
10 | engage in conduct
which is illegal, unethical, or fraudulent. | ||||||
11 | In matters involving minor
children, the counsel may refuse to | ||||||
12 | engage in conduct which, in the counsel's
professional | ||||||
13 | judgment, would be contrary to the best interest of the | ||||||
14 | client's
minor child or children. A counsel who cannot | ||||||
15 | ethically abide by his client's
directions shall be allowed to | ||||||
16 | withdraw from representation.
| ||||||
17 | (5) FEES. The counsel's fee for services may not be | ||||||
18 | contingent upon the
securing of a dissolution of marriage or , | ||||||
19 | upon being allocated parental responsibility obtaining | ||||||
20 | custody, or be based upon
the amount of maintenance, child | ||||||
21 | support, or property settlement received,
except as | ||||||
22 | specifically permitted under Supreme Court rules. The
counsel | ||||||
23 | may not require a non-refundable retainer fee, but must remit | ||||||
24 | back any
overpayment at the end of the representation. The | ||||||
25 | counsel may enter into a
consensual security arrangement with | ||||||
26 | the client whereby assets of the client
are pledged to secure |
| |||||||
| |||||||
1 | payment of legal fees or costs, but only if the counsel
first | ||||||
2 | obtains approval of the Court. The counsel will prepare and | ||||||
3 | provide the
client with an itemized billing statement detailing | ||||||
4 | hourly rates (and/or other
criteria), time spent, tasks | ||||||
5 | performed, and costs incurred on a regular basis,
at least | ||||||
6 | quarterly. The client should review each billing statement | ||||||
7 | promptly
and address any objection or error in a timely manner. | ||||||
8 | The client will not be
billed for time spent to explain or | ||||||
9 | correct a billing statement. If an
appropriately detailed | ||||||
10 | written estimate is submitted to a client as to future
costs | ||||||
11 | for a counsel's representation or a portion of the contemplated | ||||||
12 | services
(i.e., relative to specific steps recommended by the | ||||||
13 | counsel in the estimate)
and, without objection from the | ||||||
14 | client, the counsel then performs the
contemplated services, | ||||||
15 | all such services are presumptively reasonable and
necessary, | ||||||
16 | as well as to be deemed pursuant to the client's direction. In | ||||||
17 | an
appropriate case, the client may pursue contribution to his | ||||||
18 | or her fees and
costs from the other party.
| ||||||
19 | (6) DISPUTES. The counsel-client relationship is regulated | ||||||
20 | by the Illinois
Rules of Professional Conduct (Article VIII of | ||||||
21 | the Illinois Supreme Court
Rules), and any dispute shall be | ||||||
22 | reviewed under the terms of such Rules."
| ||||||
23 | (g) The changes to this Section 508 made by this amendatory | ||||||
24 | Act of 1996
apply to cases pending on or after June 1, 1997, | ||||||
25 | except as follows:
| ||||||
26 | (1) Subdivisions (c)(1) and (c)(2) of this Section 508, |
| |||||||
| |||||||
1 | as well as
provisions of subdivision (c)(3) of this Section | ||||||
2 | 508 pertaining to written
engagement agreements, apply | ||||||
3 | only to
cases filed on or after June 1, 1997.
| ||||||
4 | (2) The following do not apply in the case of a hearing | ||||||
5 | under this Section
that began before June 1, 1997:
| ||||||
6 | (A) Subsection (c-1) of Section 501.
| ||||||
7 | (B) Subsection (j) of Section 503.
| ||||||
8 | (C) The changes to this Section 508 made by this | ||||||
9 | amendatory Act of 1996
pertaining to the final setting | ||||||
10 | of fees.
| ||||||
11 | (Source: P.A. 96-583, eff. 1-1-10.)
| ||||||
12 | (750 ILCS 5/510) (from Ch. 40, par. 510)
| ||||||
13 | Sec. 510. Modification and termination of provisions for
| ||||||
14 | maintenance, support, educational expenses, and property | ||||||
15 | disposition.
| ||||||
16 | (a) Except as otherwise provided in paragraph (f) of | ||||||
17 | Section 502 and
in subsection (b), clause (3) of Section 505.2, | ||||||
18 | the provisions of any
judgment respecting maintenance or | ||||||
19 | support may be modified only as to
installments accruing | ||||||
20 | subsequent to due notice by the moving party of the
filing of | ||||||
21 | the motion for modification. An order for child
support may be | ||||||
22 | modified as follows:
| ||||||
23 | (1) upon a showing of a substantial change in | ||||||
24 | circumstances; and
| ||||||
25 | (2) without the necessity of showing a substantial |
| |||||||
| |||||||
1 | change in
circumstances, as follows:
| ||||||
2 | (A) upon a showing of an inconsistency of at least | ||||||
3 | 20%, but no
less than $10 per month, between the amount | ||||||
4 | of the existing order and the
amount of child support | ||||||
5 | that results from application of the guidelines
| ||||||
6 | specified in Section 505 of this Act unless the | ||||||
7 | inconsistency is due to the
fact that the amount of the | ||||||
8 | existing order resulted from a deviation from the
| ||||||
9 | guideline amount and there has not been a change in the | ||||||
10 | circumstances that
resulted in that deviation; or
| ||||||
11 | (B) upon a showing of a need to provide for the | ||||||
12 | health care needs
of the child under the order through | ||||||
13 | health insurance or other means. In no
event shall the | ||||||
14 | eligibility for or receipt of medical assistance be | ||||||
15 | considered
to meet the need to provide for the child's | ||||||
16 | health care needs.
| ||||||
17 | The provisions of subparagraph (a)(2)(A) shall apply only
| ||||||
18 | in cases in which a party is receiving child support
| ||||||
19 | enforcement services from the Department of Healthcare and | ||||||
20 | Family Services under
Article X of the Illinois Public Aid | ||||||
21 | Code, and only when at least 36
months have elapsed since the | ||||||
22 | order for child support was entered or last
modified.
| ||||||
23 | (a-5) An order for maintenance may be modified or | ||||||
24 | terminated only upon a
showing of a substantial change in | ||||||
25 | circumstances. In all such proceedings, as
well as in | ||||||
26 | proceedings in which maintenance is being reviewed, the court |
| |||||||
| |||||||
1 | shall
consider the applicable factors set forth in subsection | ||||||
2 | (a) of Section 504 and
the following factors:
| ||||||
3 | (1) any change in the employment status of either party | ||||||
4 | and whether the
change has been made
in good faith;
| ||||||
5 | (2) the efforts, if any, made by the party receiving | ||||||
6 | maintenance to become
self-supporting, and
the | ||||||
7 | reasonableness of the efforts where they are appropriate;
| ||||||
8 | (3) any impairment of the present and future earning | ||||||
9 | capacity of either
party;
| ||||||
10 | (4) the tax consequences of the maintenance payments | ||||||
11 | upon the respective
economic
circumstances of the parties;
| ||||||
12 | (5) the duration of the maintenance payments | ||||||
13 | previously paid (and
remaining to be paid) relative
to the | ||||||
14 | length of the marriage;
| ||||||
15 | (6) the property, including retirement benefits, | ||||||
16 | awarded to each party
under the judgment of
dissolution of | ||||||
17 | marriage, judgment of legal separation, or judgment of
| ||||||
18 | declaration of invalidity of
marriage and the present | ||||||
19 | status of the property;
| ||||||
20 | (7) the increase or decrease in each party's income | ||||||
21 | since the prior
judgment or order from which
a review, | ||||||
22 | modification, or termination is being sought;
| ||||||
23 | (8) the property acquired and currently owned by each | ||||||
24 | party after the
entry of the judgment of
dissolution of | ||||||
25 | marriage, judgment of legal separation, or judgment of
| ||||||
26 | declaration of invalidity of
marriage; and
|
| |||||||
| |||||||
1 | (9) any other factor that the court expressly finds to | ||||||
2 | be just and
equitable.
| ||||||
3 | (b) The provisions as to property disposition may not be | ||||||
4 | revoked or
modified,
unless the court finds the existence of | ||||||
5 | conditions that justify the
reopening of a judgment under the | ||||||
6 | laws of this State.
| ||||||
7 | (c) Unless otherwise agreed by the parties in a written | ||||||
8 | agreement
set forth in the judgment or otherwise approved by | ||||||
9 | the court, the obligation
to pay future maintenance is | ||||||
10 | terminated upon the death of either party, or
the remarriage of | ||||||
11 | the party receiving maintenance, or if the party
receiving | ||||||
12 | maintenance cohabits with another person on a resident,
| ||||||
13 | continuing conjugal basis. Any obligation of a payor party for | ||||||
14 | premium payments respecting insurance on such party's life | ||||||
15 | imposed under subsection (f) of Section 504 is also terminated | ||||||
16 | on the occurrence of any of the foregoing events, unless | ||||||
17 | otherwise agreed by the parties. Any termination of an | ||||||
18 | obligation for maintenance as a result of the death of the | ||||||
19 | payor party, however, shall be inapplicable to any right of the | ||||||
20 | other party or such other party's designee to receive a death | ||||||
21 | benefit under such insurance on the payor party's life. A party | ||||||
22 | receiving maintenance must advise the payor
of his or her | ||||||
23 | intention to marry at least 30 days before the remarriage, | ||||||
24 | unless the decision is made
within said time period. In that | ||||||
25 | event, he or she must notify the other party within 72 hours of
| ||||||
26 | getting married. Failure to notify the payor as required by |
| |||||||
| |||||||
1 | this subsection allows any subsequent petition for termination | ||||||
2 | to be made retroactive, to the date of marriage, with | ||||||
3 | reimbursement permitted for the amount paid prior to | ||||||
4 | notification. | ||||||
5 | (c-5) The court shall make specific factual findings as to | ||||||
6 | the reason for the modification as well as the amount, nature, | ||||||
7 | and duration of the modified maintenance reward.
| ||||||
8 | (d) Unless otherwise provided in this Act, or as agreed in | ||||||
9 | writing or
expressly
provided in the
judgment, provisions for | ||||||
10 | the support of a child are terminated by emancipation
of the
| ||||||
11 | child, or if the child has attained the age of 18 and is still | ||||||
12 | attending
high school,
provisions for the support of the child | ||||||
13 | are terminated upon the date that the
child
graduates from high | ||||||
14 | school or the date the child attains the age of 19,
whichever | ||||||
15 | is
earlier, but not by the death of a parent obligated to | ||||||
16 | support or educate the
child.
An existing obligation to pay for | ||||||
17 | support
or educational expenses, or both, is not terminated by | ||||||
18 | the death of a
parent. When a parent obligated to pay support | ||||||
19 | or educational
expenses, or both, dies, the amount of support | ||||||
20 | or educational expenses, or
both, may be enforced, modified, | ||||||
21 | revoked or commuted to a lump sum payment,
as equity may | ||||||
22 | require, and that determination may be provided for at the
time | ||||||
23 | of the dissolution of the marriage or thereafter.
| ||||||
24 | (e) The right to petition for support or educational | ||||||
25 | expenses, or both,
under Sections 505 and 513 is not | ||||||
26 | extinguished by the death of a parent.
Upon a petition filed |
| |||||||
| |||||||
1 | before or after a parent's death, the court may award
sums of | ||||||
2 | money out of the decedent's estate for the child's support or
| ||||||
3 | educational expenses, or both, as equity may require. The time | ||||||
4 | within
which a claim may be filed against the estate of a | ||||||
5 | decedent under Sections
505 and 513 and subsection (d) and this | ||||||
6 | subsection shall be governed by the
provisions of the Probate | ||||||
7 | Act of 1975, as a barrable, noncontingent claim.
| ||||||
8 | (f) A petition to modify or terminate child support, | ||||||
9 | allocation of parental responsibilities custody , or
visitation | ||||||
10 | shall not delay any child support enforcement litigation or
| ||||||
11 | supplementary proceeding on behalf of the obligee, including, | ||||||
12 | but not limited
to, a petition for a rule to show cause, for | ||||||
13 | non-wage garnishment, or for a
restraining order.
| ||||||
14 | (Source: P.A. 97-608, eff. 1-1-12.)
| ||||||
15 | (750 ILCS 5/512) (from Ch. 40, par. 512)
| ||||||
16 | Sec. 512. Post-Judgment Venue. ) After 30 days from the | ||||||
17 | entry
of a judgment of dissolution of marriage or legal | ||||||
18 | separation or the last modification
thereof, any further | ||||||
19 | proceedings to enforce or modify the judgment
shall be as | ||||||
20 | follows:
| ||||||
21 | (a) If the respondent does not then reside within this | ||||||
22 | State,
further proceedings shall be had either in the judicial | ||||||
23 | circuit
wherein the moving party resides or where the judgment | ||||||
24 | was
entered or last modified.
| ||||||
25 | (b) If one or both of the parties then resides in the |
| |||||||
| |||||||
1 | judicial
circuit wherein the judgment was entered or last | ||||||
2 | modified, further
proceedings shall be had in the judicial | ||||||
3 | circuit that last
exercised jurisdiction in the matter; | ||||||
4 | provided, however, that
the court may in its discretion, | ||||||
5 | transfer matters involving a
change in the allocation of | ||||||
6 | parental responsibility child custody to the judicial circuit | ||||||
7 | where the minor
or dependent child resides.
| ||||||
8 | (c) If neither party then resides in the judicial circuit
| ||||||
9 | wherein the judgment was entered or last modified, further
| ||||||
10 | proceedings shall be had in that circuit or in the judicial
| ||||||
11 | circuit wherein either party resides or where the respondent
is | ||||||
12 | actively employed ; provided, however, that the court may,
in | ||||||
13 | its discretion, transfer matters involving a change in the | ||||||
14 | allocation of parental responsibility child
custody to the | ||||||
15 | judicial circuit where the minor or dependent child resides.
| ||||||
16 | (d) Objection to venue is waived if not made within such | ||||||
17 | time
as the respondent's answer is due. Counter relief shall be | ||||||
18 | heard
and determined by the court hearing any matter already | ||||||
19 | pending.
| ||||||
20 | (Source: P.A. 80-923.)
| ||||||
21 | (750 ILCS 5/513) (from Ch. 40, par. 513)
| ||||||
22 | Sec. 513. Educational Expenses Support for a Non-minor | ||||||
23 | Child Children and Educational Expenses .
| ||||||
24 | (a) The court may award sums of money out of the property | ||||||
25 | and income of
either or both parties or the estate of a |
| |||||||
| |||||||
1 | deceased parent, as equity may
require, for the educational | ||||||
2 | expenses support of any the child or children of the parties . | ||||||
3 | Unless otherwise agreed to by the parties, all educational | ||||||
4 | expenses which are the subject of a petition brought pursuant | ||||||
5 | to this Section shall be incurred no later than the student's | ||||||
6 | 23rd birthday. | ||||||
7 | (b) Regardless of whether an award has been made under | ||||||
8 | subsection (a), the court may require both parties and the | ||||||
9 | child to complete the Free Application for Federal Student Aid | ||||||
10 | (FAFSA) and other financial aid forms and to submit any form of | ||||||
11 | that type prior to the designated submission deadline for the | ||||||
12 | form. The court may require either or both parties to provide | ||||||
13 | funds for the child so as to pay for the cost of up to 5 college | ||||||
14 | applications, the cost of 2 standardized college entrance | ||||||
15 | examinations, and the cost of one standardized college entrance | ||||||
16 | examination preparatory course. | ||||||
17 | (c) The authority under this Section to make provision for | ||||||
18 | educational expenses extends not only to periods of college | ||||||
19 | education or vocational or professional or other training after | ||||||
20 | graduation from high school, but also to any period during | ||||||
21 | which the child of the parties is still attending high school, | ||||||
22 | even though he or she attained the age of 19. | ||||||
23 | (d) Educational expenses may include, but shall not be | ||||||
24 | limited to, the following: | ||||||
25 | (1) except for good cause shown, the actual cost of the | ||||||
26 | child's post-secondary expenses, including tuition and |
| |||||||
| |||||||
1 | fees, provided that the cost for tuition and fees does not | ||||||
2 | exceed the amount of tuition and fees paid by a student at | ||||||
3 | the University of Illinois at Urbana-Champaign for the same | ||||||
4 | academic year; | ||||||
5 | (2) except for good cause shown, the actual costs of | ||||||
6 | the child's housing expenses, whether on-campus and | ||||||
7 | off-campus, provided that the housing expenses do not | ||||||
8 | exceed the cost for the same academic year of a | ||||||
9 | double-occupancy student room, with a standard meal plan, | ||||||
10 | in a residence hall operated by the University of Illinois | ||||||
11 | at Urbana-Champaign; | ||||||
12 | (3) the actual costs of the child's medical expenses, | ||||||
13 | including medical insurance, and dental expenses; and | ||||||
14 | (4) the reasonable living expenses of the child during | ||||||
15 | the academic year and periods of recess: | ||||||
16 | (A) if the child is a resident student attending a | ||||||
17 | post-secondary educational program; or | ||||||
18 | (B) if the child is living with one party at that | ||||||
19 | party's home and attending a post-secondary | ||||||
20 | educational program as a non-resident student, in | ||||||
21 | which case the living expenses include an amount that | ||||||
22 | pays for the reasonable cost of the child's food, | ||||||
23 | utilities, and transportation. | ||||||
24 | (e) Sums may be ordered payable to the child, to either | ||||||
25 | party, or to the educational institution, directly or through a | ||||||
26 | special account or trust created for that purpose, as the court |
| |||||||
| |||||||
1 | sees fit. | ||||||
2 | (f) If educational expenses are ordered payable, each party | ||||||
3 | and the child shall sign any consent necessary for the | ||||||
4 | educational institution to provide a supporting party with | ||||||
5 | access to the child's academic transcripts, records, and grade | ||||||
6 | reports. The consent shall not apply to any non-academic | ||||||
7 | records. Failure to execute the required consent may be a basis | ||||||
8 | for a modification or termination of any order entered under | ||||||
9 | this Section. Unless the court specifically finds that the | ||||||
10 | child's safety would be jeopardized, each party is entitled to | ||||||
11 | know the name of the educational institution the child attends. | ||||||
12 | (g) The authority under this Section to make provision for | ||||||
13 | educational expenses terminates when the child: fails to | ||||||
14 | maintain a cumulative "C" grade point average, except in the | ||||||
15 | event of illness or other good cause shown; attains the age of | ||||||
16 | 23; receives a baccalaureate degree; or marries. A child's | ||||||
17 | enlisting in the armed forces, being incarcerated, or becoming | ||||||
18 | pregnant does not terminate the court's authority to make | ||||||
19 | provisions for the educational expenses for the child under | ||||||
20 | this Section. | ||||||
21 | (h) An account established prior to the dissolution that is | ||||||
22 | to be used for the child's post-secondary education, that is an | ||||||
23 | account in a state tuition program under Section 529 of the | ||||||
24 | Internal Revenue Code, or that is some other college savings | ||||||
25 | plan, is to be considered by the court to be a resource of the | ||||||
26 | child, provided that any post-judgment contribution made by a |
| |||||||
| |||||||
1 | party to such an account is to be considered a contribution | ||||||
2 | from that party. | ||||||
3 | (i) The child is not a third party beneficiary to the | ||||||
4 | settlement agreement or judgment between the parties after | ||||||
5 | trial and is not entitled to file a petition for contribution. | ||||||
6 | If the parties' settlement agreement describes the manner in | ||||||
7 | which a child's educational expenses will be paid, or if the | ||||||
8 | court makes an award pursuant to this Section, then the parties | ||||||
9 | are responsible pursuant to that agreement or award for the | ||||||
10 | child's educational expenses, but in no event shall the court | ||||||
11 | consider the child a third party beneficiary of that provision. | ||||||
12 | In the event of the death of a party who would have the right to | ||||||
13 | file a petition for contribution, the child of the party may | ||||||
14 | file a petition for contribution. | ||||||
15 | who have
attained majority in the following instances:
| ||||||
16 | (1) When the child is mentally or physically disabled | ||||||
17 | and not otherwise
emancipated, an application for support | ||||||
18 | may be made before or after the child
has attained | ||||||
19 | majority.
| ||||||
20 | (2) The court may also make provision for the | ||||||
21 | educational expenses of the
child or children of the | ||||||
22 | parties, whether of minor or majority age, and an
| ||||||
23 | application for educational expenses may be made before or | ||||||
24 | after the child has
attained majority, or after the death | ||||||
25 | of either parent. The authority under
this Section to make | ||||||
26 | provision for educational expenses extends not only to
|
| |||||||
| |||||||
1 | periods of college education or professional or other | ||||||
2 | training after graduation
from high school, but also to any | ||||||
3 | period during which the child of the parties
is still | ||||||
4 | attending high school, even though he or she attained the | ||||||
5 | age of
19.
The educational expenses may include, but shall | ||||||
6 | not be limited to, room, board,
dues, tuition, | ||||||
7 | transportation, books, fees, registration and application | ||||||
8 | costs,
medical expenses including medical insurance, | ||||||
9 | dental expenses, and living
expenses during the school year | ||||||
10 | and periods of recess, which sums may be
ordered payable to | ||||||
11 | the child, to either parent, or to the educational
| ||||||
12 | institution, directly or through a special account or trust | ||||||
13 | created for
that purpose, as the court sees fit.
| ||||||
14 | If educational expenses are ordered payable, each | ||||||
15 | parent and the child
shall
sign any consents necessary for | ||||||
16 | the educational institution to provide the
supporting | ||||||
17 | parent with access to the child's academic transcripts, | ||||||
18 | records, and
grade reports. The consents shall not apply to | ||||||
19 | any non-academic records.
Failure to execute the required | ||||||
20 | consent may be a basis for a modification or
termination of | ||||||
21 | any order entered under this Section. Unless the court | ||||||
22 | specifically finds that the child's safety would be | ||||||
23 | jeopardized, each parent is entitled to know the name of | ||||||
24 | the educational institution the child attends. This | ||||||
25 | amendatory Act of the 95th General Assembly applies to all | ||||||
26 | orders entered under this paragraph (2) on or after the |
| |||||||
| |||||||
1 | effective date of this amendatory Act of the 95th General | ||||||
2 | Assembly.
| ||||||
3 | The authority under this Section to make provision for | ||||||
4 | educational
expenses, except where the child is mentally or | ||||||
5 | physically disabled and not
otherwise emancipated, | ||||||
6 | terminates when the child receives
a baccalaureate degree.
| ||||||
7 | (j) (b) In making awards under this Section paragraph (1) | ||||||
8 | or (2) of subsection (a) , or
pursuant to a petition or motion | ||||||
9 | to decrease, modify, or terminate any such
award, the court | ||||||
10 | shall consider all relevant factors that appear reasonable
and | ||||||
11 | necessary, including:
| ||||||
12 | (1) The present and future financial resources of both | ||||||
13 | parties to meet their needs, including, but not limited to, | ||||||
14 | savings for retirement The financial resources of both | ||||||
15 | parents .
| ||||||
16 | (2) The standard of living the child would have enjoyed | ||||||
17 | had the marriage not been dissolved . The court may consider | ||||||
18 | factors that are just and equitable .
| ||||||
19 | (3) The financial resources of the child.
| ||||||
20 | (4) The child's academic performance.
| ||||||
21 | (k) Relief under this Section is retroactive only to the | ||||||
22 | date of filing of a petition, and shall not apply to | ||||||
23 | enforcement under this Section by either of the parties. | ||||||
24 | (Source: P.A. 95-954, eff. 8-29-08.)
| ||||||
25 | (750 ILCS 5/513.5 new) |
| |||||||
| |||||||
1 | Sec. 513.5. Support for a non-minor child with a | ||||||
2 | disability. | ||||||
3 | (a) The court may award sums of money out of the property | ||||||
4 | and income of either or both parties or the estate of a | ||||||
5 | deceased parent, as equity may require, for the support of a | ||||||
6 | child of the parties who has attained majority when the child | ||||||
7 | is mentally or physically disabled and not otherwise | ||||||
8 | emancipated. The sums awarded may be paid to one of the | ||||||
9 | parents, to a trust created by the parties for the benefit of | ||||||
10 | the non-minor child with a disability, or irrevocably to a | ||||||
11 | special needs trust, established by the parties and for the | ||||||
12 | sole benefit of the non-minor child with a disability, pursuant | ||||||
13 | to subdivisions (d)(4)(A) or (d)(4)(C) of 42 U.S.C. 1396p, | ||||||
14 | Section 15.1 of the Trusts and Trustees Act, and applicable | ||||||
15 | provisions of the Social Security Administration Program | ||||||
16 | Operating Manual System. An application for support for a | ||||||
17 | non-minor disabled child may be made before or after the child | ||||||
18 | has attained majority. Unless an application for educational | ||||||
19 | expenses is made for a mentally or physically disabled child | ||||||
20 | under Section 513, the disability that is the basis for the | ||||||
21 | application for support must have arisen while the child was | ||||||
22 | eligible for support under Section 505 or 513 of this Act. | ||||||
23 | (b) In making awards under this Section, or pursuant to a | ||||||
24 | petition or motion to decrease, modify, or terminate any such | ||||||
25 | award, the court shall consider all relevant factors that | ||||||
26 | appear reasonable and necessary, including: |
| |||||||
| |||||||
1 | (1) the present and future financial resources of both | ||||||
2 | parties to meet their needs, including, but not limited to, | ||||||
3 | savings for retirement; | ||||||
4 | (2) the standard of living the child would have enjoyed | ||||||
5 | had the marriage not been dissolved. The court may consider | ||||||
6 | factors that are just and equitable; | ||||||
7 | (3) the financial resources of the child; and | ||||||
8 | (4) any financial or other resource provided to or for | ||||||
9 | the child including, but not limited to, any Supplemental | ||||||
10 | Security Income, any home-based support provided pursuant | ||||||
11 | to the Home-Based Support Services Law for Mentally | ||||||
12 | Disabled Adults, and any other State, federal, or local | ||||||
13 | benefit available to the non-minor disabled child. | ||||||
14 | (c) As used in this Section: | ||||||
15 | A "disabled" individual means an individual who has a | ||||||
16 | physical or
mental impairment that substantially limits a major | ||||||
17 | life activity, has a record
of such an impairment, or is | ||||||
18 | regarded as having such an impairment. | ||||||
19 | "Disability" means a mental or physical impairment that | ||||||
20 | substantially limits a major life activity. | ||||||
21 | (750 ILCS 5/Pt. VI heading) | ||||||
22 | PART VI
| ||||||
23 | ALLOCATION OF PARENTAL RESPONSIBILITIES
CUSTODY
| ||||||
24 | (750 ILCS 5/600 new) |
| |||||||
| |||||||
1 | Sec. 600. Definitions. For purposes of this Part VI: | ||||||
2 | (a) "Abuse" has the meaning ascribed to that term in | ||||||
3 | Section 103 of the Illinois Domestic Violence Act of 1986. | ||||||
4 | (b) "Allocation judgment" means a judgment allocating | ||||||
5 | parental responsibilities. | ||||||
6 | (c) "Caretaking functions" means tasks that involve | ||||||
7 | interaction with a child or that direct, arrange, and supervise | ||||||
8 | the interaction with and care of a child provided by others, or | ||||||
9 | for obtaining the resources allowing for the provision of these | ||||||
10 | functions. The term includes, but is not limited to, the | ||||||
11 | following: | ||||||
12 | (1) satisfying a child's nutritional needs; managing a | ||||||
13 | child's bedtime and wake-up routines; caring for a child | ||||||
14 | when the child is sick or injured; being attentive to a | ||||||
15 | child's personal hygiene needs, including washing, | ||||||
16 | grooming, and dressing; playing with a child and ensuring | ||||||
17 | the child attends scheduled extracurricular activities; | ||||||
18 | protecting a child's physical safety; and providing | ||||||
19 | transportation for a child; | ||||||
20 | (2) directing a child's various developmental needs, | ||||||
21 | including the acquisition of motor and language skills, | ||||||
22 | toilet training, self-confidence, and maturation; | ||||||
23 | (3) providing discipline, giving instruction in | ||||||
24 | manners, assigning and supervising chores, and performing | ||||||
25 | other tasks that attend to a child's needs for behavioral | ||||||
26 | control and self-restraint; |
| |||||||
| |||||||
1 | (4) ensuring the child attends school, including | ||||||
2 | remedial and special services appropriate to the child's | ||||||
3 | needs and interests, communicating with teachers and | ||||||
4 | counselors, and supervising homework; | ||||||
5 | (5) helping a child develop and maintain appropriate | ||||||
6 | interpersonal relationships with peers, siblings, and | ||||||
7 | other family members; | ||||||
8 | (6) ensuring the child attends medical appointments | ||||||
9 | and is available for medical follow-up and meeting the | ||||||
10 | medical needs of the child in the home; | ||||||
11 | (7) providing moral and ethical guidance for a child; | ||||||
12 | and | ||||||
13 | (8) arranging alternative care for a child by a family | ||||||
14 | member, babysitter, or other child care provider or | ||||||
15 | facility, including investigating such alternatives, | ||||||
16 | communicating with providers, and supervising such care. | ||||||
17 | (d) "Parental responsibilities" means both parenting time | ||||||
18 | and significant decision-making responsibilities with respect | ||||||
19 | to a child. | ||||||
20 | (e) "Parenting time" means the time during which a parent | ||||||
21 | is responsible for exercising caretaking functions and | ||||||
22 | non-significant decision-making responsibilities with respect | ||||||
23 | to the child. | ||||||
24 | (f) "Parenting plan" means a written agreement that | ||||||
25 | allocates significant decision-making responsibilities, | ||||||
26 | parenting time, or both. |
| |||||||
| |||||||
1 | (g) "Relocation" means: | ||||||
2 | (1) a change of residence from the child's current | ||||||
3 | primary residence located in the county of Cook, DuPage, | ||||||
4 | Kane, Lake, McHenry, or Will to a new residence that is | ||||||
5 | more than 25 miles from the child's current residence; | ||||||
6 | (2) a change of residence from the child's current | ||||||
7 | primary residence located in a county not listed in | ||||||
8 | paragraph (1) to a location within the borders of this | ||||||
9 | State that is more than 50 miles from the child's current | ||||||
10 | primary residence; | ||||||
11 | (3)
a change of residence from the child's current | ||||||
12 | primary residence to a residence outside the borders of | ||||||
13 | this State that is more than 25 miles from the current | ||||||
14 | primary residence; or | ||||||
15 | (4) a change of residence from the child's current | ||||||
16 | primary residence to a residence outside the borders of | ||||||
17 | this State that is no more than 25 miles from the child's | ||||||
18 | current primary residence, regardless of the county of the | ||||||
19 | child's current primary residence. | ||||||
20 | (h) "Religious upbringing" means the choice of religion or | ||||||
21 | denomination of a religion, religious schooling, religious | ||||||
22 | training, or participation in religious customs or practices. | ||||||
23 | (i) "Residential responsibility" means the amount of time a | ||||||
24 | child spends in a parent's care.
| ||||||
25 | (j) "Restriction of parenting time" means any limitation or | ||||||
26 | condition placed on parenting time, including supervision. |
| |||||||
| |||||||
1 | (k) "Right of first refusal" has the meaning provided in | ||||||
2 | subsection (b) of Section 602.3 of this Act. | ||||||
3 | (l) "Significant decision-making" means deciding issues of | ||||||
4 | long-term importance in the life of a child. | ||||||
5 | (m) "Step-parent" means a person married to a child's | ||||||
6 | parent, including a person married to the child's parent | ||||||
7 | immediately prior to the parent's death. | ||||||
8 | (n) "Supervision" means the presence of a third party | ||||||
9 | during a parent's exercise of parenting time. | ||||||
10 | (750 ILCS 5/601.2 new) | ||||||
11 | Sec. 601.2. Jurisdiction; commencement of proceeding.
| ||||||
12 | (a) A court of this State that is competent to allocate | ||||||
13 | parental responsibilities has jurisdiction to make such an | ||||||
14 | allocation in original or modification proceedings as provided | ||||||
15 | in Section 201 of the Uniform Child-Custody Jurisdiction and | ||||||
16 | Enforcement Act as adopted by this State. | ||||||
17 | (b) A proceeding for allocation of parental | ||||||
18 | responsibilities with respect to a child is commenced in the | ||||||
19 | court: | ||||||
20 | (1) by filing a petition for dissolution of marriage or | ||||||
21 | legal separation or declaration of invalidity of marriage; | ||||||
22 | (2) by filing a petition for allocation of parental | ||||||
23 | responsibilities with respect to the child in the county in | ||||||
24 | which the child resides; | ||||||
25 | (3) by a person other than a parent, by filing a |
| |||||||
| |||||||
1 | petition for
allocation of parental responsibilities in | ||||||
2 | the county in which the child is permanently resident
or | ||||||
3 | found, but only if he or she is not in the physical custody | ||||||
4 | of one of his
or her parents;
| ||||||
5 | (4) by a step-parent, by filing a petition, if all of | ||||||
6 | the following
circumstances are met:
| ||||||
7 | (A) the parent having the majority of residential | ||||||
8 | responsibility is deceased or is disabled and cannot | ||||||
9 | perform
the duties of a parent to the child;
| ||||||
10 | (B) the step-parent provided for the care, | ||||||
11 | control, and welfare of the
child prior to the | ||||||
12 | initiation of proceedings for allocation of parental | ||||||
13 | responsibilities;
| ||||||
14 | (C) the child wishes to live with the step-parent; | ||||||
15 | and
| ||||||
16 | (D) it is alleged to be in the best interests and | ||||||
17 | welfare of the
child to live with the step-parent as | ||||||
18 | provided in Section 602.5 of this Act; or | ||||||
19 | (5) when one of the parents is deceased, by a | ||||||
20 | grandparent who is a parent or step-parent of a deceased | ||||||
21 | parent, by filing a petition, if one or more of the | ||||||
22 | following existed at the time of the parent's death: | ||||||
23 | (A) the surviving parent had been absent from the | ||||||
24 | marital abode for more than one month without the | ||||||
25 | spouse knowing his or her whereabouts; | ||||||
26 | (B) the surviving parent was in State or federal |
| |||||||
| |||||||
1 | custody; or | ||||||
2 | (C) the surviving parent had: (i) received | ||||||
3 | supervision for or been convicted of any violation of | ||||||
4 | Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | ||||||
5 | 11-1.70, 12C-5, 12C-10, 12C-35, 12C-40, 12C-45, 18-6, | ||||||
6 | 19-6, or Article 12 of the Criminal Code of 1961 or the | ||||||
7 | Criminal Code of 2012 directed towards the deceased | ||||||
8 | parent or the child; or (ii) received supervision or | ||||||
9 | been convicted of violating an order of protection | ||||||
10 | entered under Section 217, 218, or 219 of the Illinois | ||||||
11 | Domestic Violence Act of 1986 for the protection of the | ||||||
12 | deceased parent or the child.
| ||||||
13 | (c) When a proceeding for allocation of parental | ||||||
14 | responsibilities is commenced, the party commencing the action | ||||||
15 | must, at least 30 days before any hearing on the petition, | ||||||
16 | serve a written notice and a copy of the petition on the | ||||||
17 | child's parent and on any party previously appearing in any | ||||||
18 | prior proceeding for allocation of parental responsibilities | ||||||
19 | with respect to the child. Nothing in this Section shall | ||||||
20 | preclude a party in a proceeding for allocation of parental | ||||||
21 | responsibilities from moving for a temporary order under | ||||||
22 | Section 602.5. | ||||||
23 | (750 ILCS 5/602.3) | ||||||
24 | Sec. 602.3. Care of minor children; right of first refusal. | ||||||
25 | (a) If the court awards joint allocation of parental |
| |||||||
| |||||||
1 | responsibilities custody under Section 602.5 602.1 or | ||||||
2 | parenting time visitation rights under Section 607 602.7 or | ||||||
3 | 602.8 , the court may consider, consistent with the
best | ||||||
4 | interests interest of the child as defined in Sections 602.5 | ||||||
5 | and 602.7 Section 602 , whether to award to
one or both of the | ||||||
6 | parties the right of first refusal to provide child care for
| ||||||
7 | the minor child or children during the other parent's normal | ||||||
8 | parenting
time, unless the need for child care is attributable | ||||||
9 | to an emergency. | ||||||
10 | (b) As used in this Section, "right of first refusal" means | ||||||
11 | that if a party
intends to leave the minor child or children | ||||||
12 | with a substitute child-care provider for
a significant period | ||||||
13 | of time, that party must first offer the other party an
| ||||||
14 | opportunity to personally care for the minor child or children. | ||||||
15 | The parties
may agree to a right of first refusal that is | ||||||
16 | consistent with the best interests
interest of the minor child | ||||||
17 | or children. If there is no agreement and
the court determines | ||||||
18 | that a right of first refusal is in the best interests interest | ||||||
19 | of
the minor child or children, the court shall consider and | ||||||
20 | make
provisions in its order for: | ||||||
21 | (1) the length and kind of child-care requirements | ||||||
22 | invoking the right
of first refusal; | ||||||
23 | (2) notification to the other parent and for his or her
| ||||||
24 | response; | ||||||
25 | (3) transportation requirements; and | ||||||
26 | (4) any other action necessary to protect and promote |
| |||||||
| |||||||
1 | the best
interest of the minor child or children. | ||||||
2 | (c) The right of first refusal may be enforced under | ||||||
3 | Section 607.5 607.1 of this Act. | ||||||
4 | (d) The right of first refusal is terminated upon the | ||||||
5 | termination of the allocation of parental responsibilities or | ||||||
6 | parenting time custody or visitation rights .
| ||||||
7 | (Source: P.A. 98-462, eff. 1-1-14.) | ||||||
8 | (750 ILCS 5/602.5 new) | ||||||
9 | Sec. 602.5. Allocation of parental responsibilities: | ||||||
10 | decision-making. | ||||||
11 | (a) Generally. The court shall allocate decision-making | ||||||
12 | responsibilities according to the child's best interests. | ||||||
13 | Nothing in this Act requires that each parent be allocated | ||||||
14 | decision-making responsibilities. | ||||||
15 | (b) Allocation of significant decision-making | ||||||
16 | responsibilities. Unless the parents otherwise agree in | ||||||
17 | writing on an allocation of significant decision-making | ||||||
18 | responsibilities, the court shall make the determination. The | ||||||
19 | court shall allocate to one or both of the parents the | ||||||
20 | significant decision-making responsibility for each | ||||||
21 | significant issue affecting the child. Those significant | ||||||
22 | issues shall include, without limitation, the following: | ||||||
23 | (1) Education, including the choice of schools and | ||||||
24 | tutors. | ||||||
25 | (2) Health, including all decisions relating to the |
| |||||||
| |||||||
1 | medical, dental, and psychological needs of the child and | ||||||
2 | to the treatments arising or resulting from those needs. | ||||||
3 | (3) Religion, subject to the following provisions: | ||||||
4 | (A) The court shall allocate parental | ||||||
5 | responsibility for the child's religious upbringing in | ||||||
6 | accordance with any express or implied agreement | ||||||
7 | between the parents. | ||||||
8 | (B) The court shall consider evidence of the | ||||||
9 | parents' past conduct as to the child's religious | ||||||
10 | upbringing in allocating parental responsibilities | ||||||
11 | consistent with demonstrated past conduct in the | ||||||
12 | absence of an express or implied agreement between the | ||||||
13 | parents. | ||||||
14 | (C) The court shall not allocate any aspect of the | ||||||
15 | child's religious upbringing if it determines that the | ||||||
16 | parents do not or did not have an express or implied | ||||||
17 | agreement for such religious upbringing or that there | ||||||
18 | is insufficient evidence to demonstrate a course of | ||||||
19 | conduct regarding the child's religious upbringing | ||||||
20 | that could serve as a basis for any such order. | ||||||
21 | (4) Extracurricular activities. | ||||||
22 | (c) Determination of child's best interests. In | ||||||
23 | determining the child's best interests for purposes of | ||||||
24 | allocating significant decision-making responsibilities, the | ||||||
25 | court shall consider all relevant factors, including, without | ||||||
26 | limitation, the following: |
| |||||||
| |||||||
1 | (1) the wishes of a child who is sufficiently mature to | ||||||
2 | express reasoned and independent preferences as to | ||||||
3 | significant decisions; | ||||||
4 | (2) the child's adjustment to his or her home, school, | ||||||
5 | and community; | ||||||
6 | (3) the mental and physical health of all individuals | ||||||
7 | involved; | ||||||
8 | (4) the ability of the parents to cooperate to make | ||||||
9 | decisions, or the level of conflict between the parties | ||||||
10 | that may affect their ability to share decision-making; | ||||||
11 | (5) the level of each parent's participation in past | ||||||
12 | significant decision-making with respect to the child; | ||||||
13 | (6) any prior agreement or course of conduct between | ||||||
14 | the parents relating to decision-making with respect to the | ||||||
15 | child;
| ||||||
16 | (7) the wishes of the parents; | ||||||
17 | (8) the child's needs in light of economic, physical, | ||||||
18 | or other circumstances; | ||||||
19 | (9) the distance between the parents' residences, the | ||||||
20 | cost and difficulty of transporting the child, each | ||||||
21 | parent's and the child's daily schedules, and the ability | ||||||
22 | of the parents to cooperate in the arrangement; | ||||||
23 | (10) whether a restriction on decision-making is | ||||||
24 | appropriate under Section 603.10;
| ||||||
25 | (11) the willingness and ability of each parent to | ||||||
26 | facilitate and encourage a close and continuing |
| |||||||
| |||||||
1 | relationship between the other parent and the child; | ||||||
2 | (12) the physical violence or threat of physical | ||||||
3 | violence by the child's parent, whether directed against | ||||||
4 | the child or directed against another person; | ||||||
5 | (13) the occurrence of ongoing or repeated abuse, | ||||||
6 | including, but not limited to, abuse as defined by the | ||||||
7 | Illinois Domestic Violence Act of 1986 and the Abused and | ||||||
8 | Neglected Child Reporting Act; | ||||||
9 | (14) whether one of the parents is a sex offender, and | ||||||
10 | if so, the exact nature of the offense and what, if any, | ||||||
11 | treatment in which the parent has successfully | ||||||
12 | participated; and
| ||||||
13 | (15) any other factor that the court expressly finds to | ||||||
14 | be relevant.
| ||||||
15 | (d) A parent shall have sole responsibility for making | ||||||
16 | routine decisions with respect to the child and for emergency | ||||||
17 | decisions affecting the child's health and safety during that | ||||||
18 | parent's parenting time. | ||||||
19 | (e) In allocating significant decision-making | ||||||
20 | responsibilities, the court shall not consider conduct of a | ||||||
21 | parent that does not affect that parent's relationship to the | ||||||
22 | child. | ||||||
23 | (750 ILCS 5/602.7 new)
| ||||||
24 | Sec. 602.7. Parenting time. | ||||||
25 | (a) Best interests. The court shall allocate parenting time |
| |||||||
| |||||||
1 | according to the child's best interests.
| ||||||
2 | (b) Allocation of parenting time. Unless the parents | ||||||
3 | present a mutually agreed written parenting plan and that plan | ||||||
4 | is approved by the court, the court shall allocate parenting | ||||||
5 | time. It is presumed both parents are fit and the court shall | ||||||
6 | not place any restrictions on parenting time as defined in | ||||||
7 | Section 600 and described in Section 603.10, unless it finds by | ||||||
8 | a preponderance of the evidence that a parent's exercise of | ||||||
9 | parenting time would seriously endanger the child's physical, | ||||||
10 | mental, moral, or emotional health. | ||||||
11 | In determining the child's best interests for purposes of | ||||||
12 | allocating parenting time, the court shall consider all | ||||||
13 | relevant factors, including, without limitation, the | ||||||
14 | following: | ||||||
15 | (1) the wishes of each parent seeking parenting time; | ||||||
16 | (2) the wishes of a child who is sufficiently mature to | ||||||
17 | express reasoned and independent preferences as to | ||||||
18 | parenting time; | ||||||
19 | (3) the amount of time each parent spent performing | ||||||
20 | caretaking functions with respect to the child in the 24 | ||||||
21 | months preceding the filing of any petition for allocation | ||||||
22 | of parental responsibilities or, if the child is under 2 | ||||||
23 | years of age, since the child's birth; | ||||||
24 | (4) any prior agreement or course of conduct between | ||||||
25 | the parents relating to caretaking functions with respect | ||||||
26 | to the child; |
| |||||||
| |||||||
1 | (5) the interaction and interrelationship of the child | ||||||
2 | with his or her parents and siblings and with any other | ||||||
3 | person who may significantly affect the child's best | ||||||
4 | interests; | ||||||
5 | (6) the child's adjustment to his or her home, school, | ||||||
6 | and community; | ||||||
7 | (7) the mental and physical health of all individuals | ||||||
8 | involved; | ||||||
9 | (8) the child's needs in light of economic, physical, | ||||||
10 | or other circumstances; | ||||||
11 | (9) the distance between the parents' residences, the | ||||||
12 | cost and difficulty of transporting the child, each | ||||||
13 | parent's and the child's daily schedules, and the ability | ||||||
14 | of the parents to cooperate in the arrangement; | ||||||
15 | (10) whether a restriction on parenting time is | ||||||
16 | appropriate; | ||||||
17 | (11) the physical violence or threat of physical | ||||||
18 | violence by a parent, whether directed against the child or | ||||||
19 | directed against another person; | ||||||
20 | (12) the willingness and ability of each parent to | ||||||
21 | place the needs of the child ahead of his or her own needs; | ||||||
22 | (13) the willingness and ability of each parent to | ||||||
23 | facilitate and encourage a close and continuing | ||||||
24 | relationship between the other parent and the child; | ||||||
25 | (14) the occurrence of abuse, including, but not | ||||||
26 | limited to, abuse as defined in the Illinois Domestic |
| |||||||
| |||||||
1 | Violence Act of 1986 and the Abused and Neglected Child | ||||||
2 | Reporting Act, whether against the child or another person; | ||||||
3 | (15) whether one of the parents is a convicted sex | ||||||
4 | offender or lives with a convicted sex offender and, if so, | ||||||
5 | the exact nature of the offense and what if any treatment | ||||||
6 | the offender has successfully participated in; the parties | ||||||
7 | are entitled to a hearing on the issues raised in this | ||||||
8 | paragraph (15); | ||||||
9 | (16) the terms of a parent's military family-care plan | ||||||
10 | that a parent must complete before deployment if a parent | ||||||
11 | is a member of the United States Armed Forces who is being | ||||||
12 | deployed; and | ||||||
13 | (17) any other factor that the court expressly finds to | ||||||
14 | be relevant. | ||||||
15 | (c) In allocating parenting time, the court shall not | ||||||
16 | consider conduct of a parent that does not affect that parent's | ||||||
17 | relationship to the child.
| ||||||
18 | (d) A parent who is not allocated parenting time is not | ||||||
19 | entitled to access to the child's school or health care records | ||||||
20 | unless a court finds that it is in the child's best interests | ||||||
21 | to provide those records to the parent. | ||||||
22 | (e) Upon motion, the court may allow a parent who is | ||||||
23 | deployed or who has orders to be deployed as a member of the | ||||||
24 | United States Armed Forces to designate a person known to the | ||||||
25 | child to exercise reasonable substitute parenting time on | ||||||
26 | behalf of the deployed parent, if the court determines that |
| |||||||
| |||||||
1 | substitute parenting time is in the best interests of the | ||||||
2 | child. In determining whether substitute parenting time is in | ||||||
3 | the best interests of the child, the court shall consider all | ||||||
4 | of the relevant factors listed in subsection (b) of this | ||||||
5 | Section and apply those factors to the person designated as a | ||||||
6 | substitute for the deployed parent for parenting time purposes. | ||||||
7 | (750 ILCS 5/602.8 new) | ||||||
8 | Sec. 602.8. Parenting time by parents not allocated | ||||||
9 | parental responsibilities. | ||||||
10 | (a) A parent who has established parentage under the laws | ||||||
11 | of this State and who is not granted parental responsibilities | ||||||
12 | of a child is entitled to reasonable parenting time with the | ||||||
13 | child, subject to subsections (d) and (e) of Section 603.10 of | ||||||
14 | this Act, unless the court finds, after a hearing, that the | ||||||
15 | parenting time would seriously endanger the child's mental, | ||||||
16 | moral, or physical health or significantly impair the child's | ||||||
17 | emotional development. The order setting forth parenting time | ||||||
18 | shall be in the child's best interests pursuant to the factors | ||||||
19 | set forth in subsection (b) of Section 602.7 of this Section. | ||||||
20 | (b) The court may modify an order granting or denying | ||||||
21 | parenting time pursuant to Section 610.5 of this Act. The court | ||||||
22 | may restrict parenting time, and modify an order restricting | ||||||
23 | parenting time, pursuant to Section 603.10 of this Act. | ||||||
24 | (c) If the street address of the parent allocated parental | ||||||
25 | responsibilities is not identified, pursuant to Section 708 of |
| |||||||
| |||||||
1 | this Act, the court shall require the parties to identify | ||||||
2 | reasonable alternative arrangements for parenting time by a | ||||||
3 | parent not allocated parental responsibilities, including but | ||||||
4 | not limited to parenting time of the minor child at the | ||||||
5 | residence of another person or at a local public or private | ||||||
6 | facility. | ||||||
7 | (750 ILCS 5/602.9 new) | ||||||
8 | Sec. 602.9. Visitation by certain non-parents. | ||||||
9 | (a) As used in this Section: | ||||||
10 | (1) "electronic communication" means time that a | ||||||
11 | grandparent, great-grandparent, sibling, or step-parent | ||||||
12 | spends with a child during which the child is not in the | ||||||
13 | person's actual physical custody, but which is facilitated | ||||||
14 | by the use of communication tools such as the telephone, | ||||||
15 | electronic mail, instant messaging, video conferencing or | ||||||
16 | other wired or wireless technologies via the Internet, or | ||||||
17 | another medium of communication; | ||||||
18 | (2) "sibling" means a brother or sister either of the | ||||||
19 | whole blood or the half blood, stepbrother, or stepsister | ||||||
20 | of the minor child; | ||||||
21 | (3) "step-parent" means a person married to a child's | ||||||
22 | parent, including a person married to the child's parent | ||||||
23 | immediately prior to the parent's death; and | ||||||
24 | (4) "visitation" means in-person time spent between a | ||||||
25 | child and the child's grandparent, great-grandparent, |
| |||||||
| |||||||
1 | sibling, or step-parent. In appropriate circumstances, | ||||||
2 | visitation may include electronic communication under | ||||||
3 | conditions and at times determined by the court. | ||||||
4 | (b) General provisions. | ||||||
5 | (1) An appropriate person, as identified in subsection | ||||||
6 | (c) of this Section, may bring an action in circuit court | ||||||
7 | by petition, or by filing a petition in a pending | ||||||
8 | dissolution proceeding or any other proceeding that | ||||||
9 | involves parental responsibilities, parenting time, or | ||||||
10 | visitation issues regarding the child, requesting | ||||||
11 | visitation with the child pursuant to this Section. If | ||||||
12 | there is not a pending proceeding involving parental | ||||||
13 | responsibilities, parenting time, or visitation with the | ||||||
14 | child, the petition for visitation with the child must be | ||||||
15 | filed in the county in which the child resides. Notice of | ||||||
16 | the petition shall be given as provided in subsection (c) | ||||||
17 | of Section 601.2 of this Act. | ||||||
18 | (2) This Section does not apply to a child: | ||||||
19 | (A) in whose interests a petition is pending under | ||||||
20 | Section 2-13 of the Juvenile Court Act of 1987; or | ||||||
21 | (B) in whose interests a petition to adopt by an | ||||||
22 | unrelated person is pending under the Adoption Act; or | ||||||
23 | (C) who has been voluntarily surrendered by the | ||||||
24 | parent or parents, except for a surrender to the | ||||||
25 | Department of Children and Family Services or a foster | ||||||
26 | care facility; or |
| |||||||
| |||||||
1 | (D) who has been previously adopted by an | ||||||
2 | individual or individuals who are not related to the | ||||||
3 | biological parents of the child or who is the subject | ||||||
4 | of a pending adoption petition by an individual or | ||||||
5 | individuals who are not related to the biological | ||||||
6 | parents of the child. | ||||||
7 | (3) A petition for visitation may be filed under this | ||||||
8 | Section only if there has been an unreasonable denial of | ||||||
9 | visitation by a parent and the denial has caused the child | ||||||
10 | undue mental, physical, or emotional harm. | ||||||
11 | (4) There is a rebuttable presumption that a fit | ||||||
12 | parent's actions and decisions regarding grandparent, | ||||||
13 | great-grandparent, sibling, or step-parent visitation are | ||||||
14 | not harmful to the child's mental, physical, or emotional | ||||||
15 | health. The burden is on the party filing a petition under | ||||||
16 | this Section to prove that the parent's actions and | ||||||
17 | decisions regarding visitation will cause undue harm to the | ||||||
18 | child's mental, physical, or emotional health. | ||||||
19 | (5) In determining whether to grant visitation, the | ||||||
20 | court shall consider the following: | ||||||
21 | (A) the preference of the child, taking into | ||||||
22 | account the child's age and maturity and ability to | ||||||
23 | express independent preferences as to decision-making; | ||||||
24 | (B) the mental and physical health of the child; | ||||||
25 | (C) the mental and physical health of the | ||||||
26 | grandparent, great-grandparent, sibling, or |
| |||||||
| |||||||
1 | step-parent; | ||||||
2 | (D) the length and quality of the prior | ||||||
3 | relationship between the child and the grandparent, | ||||||
4 | great-grandparent, sibling, or step-parent; | ||||||
5 | (E) the good faith of the party in filing the | ||||||
6 | petition; | ||||||
7 | (F) the good faith of the person denying | ||||||
8 | visitation; | ||||||
9 | (G) the quantity of the visitation time requested | ||||||
10 | and the potential adverse impact that visitation would | ||||||
11 | have on the child's customary activities; | ||||||
12 | (H) any other fact that establishes that the loss | ||||||
13 | of the relationship between the petitioner and the | ||||||
14 | child is likely to unduly harm the child's mental, | ||||||
15 | physical, or emotional health; and | ||||||
16 | (I) whether visitation can be structured in way to | ||||||
17 | minimize the child's exposure to conflicts between the | ||||||
18 | adults. | ||||||
19 | (6) Any visitation rights granted under this Section | ||||||
20 | before the filing of a petition for adoption of the child | ||||||
21 | shall automatically terminate by operation of law upon the | ||||||
22 | entry of an order terminating parental rights or granting | ||||||
23 | the adoption of the child, whichever is earlier. If the | ||||||
24 | person or persons who adopted the child are related to the | ||||||
25 | child, as defined by Section 1 of the Adoption Act, any | ||||||
26 | person who was related to the child as grandparent, |
| |||||||
| |||||||
1 | great-grandparent, or sibling prior to the adoption shall | ||||||
2 | have standing to bring an action under this Section | ||||||
3 | requesting visitation with the child. | ||||||
4 | (7) The court may order visitation rights for the | ||||||
5 | grandparent, great-grandparent, sibling, or step-parent | ||||||
6 | that include reasonable access without requiring overnight | ||||||
7 | or possessory visitation. | ||||||
8 | (c) Visitation by grandparents, great-grandparents, | ||||||
9 | step-parents, and siblings. | ||||||
10 | (1) Grandparents, great-grandparents, step-parents, | ||||||
11 | and siblings of a minor child who is one year old or older | ||||||
12 | may bring a petition for visitation and electronic | ||||||
13 | communication under this Section if there is an | ||||||
14 | unreasonable denial of visitation by a parent that causes | ||||||
15 | undue mental, physical, or emotional harm to the child and | ||||||
16 | if at least one of the following conditions exists: | ||||||
17 | (A) the child's other parent is deceased or has | ||||||
18 | been missing for at least 90 days. For the purposes of | ||||||
19 | this subsection a parent is considered to be missing if | ||||||
20 | the parent's location has not been determined and the | ||||||
21 | parent has been reported as missing to a law | ||||||
22 | enforcement agency; or | ||||||
23 | (B) a parent of the child is incompetent as a | ||||||
24 | matter of law; or | ||||||
25 | (C) a parent has been incarcerated in jail or | ||||||
26 | prison for a period in excess of 90 days immediately |
| |||||||
| |||||||
1 | prior to the filing of the petition; or | ||||||
2 | (D) the child's mother and father have been granted | ||||||
3 | a dissolution of marriage or have been legally | ||||||
4 | separated from each other or there is pending a | ||||||
5 | dissolution proceeding involving a parent of the child | ||||||
6 | or another court proceeding involving parental | ||||||
7 | responsibilities, parenting time, or visitation of the | ||||||
8 | child (other than any adoption proceeding of an | ||||||
9 | unrelated child or a proceeding under Article II of the | ||||||
10 | Juvenile Court Act of 1987) and at least one parent | ||||||
11 | does not object to the grandparent, great-grandparent, | ||||||
12 | step-parent, or sibling having visitation with the | ||||||
13 | child. The visitation of the grandparent, | ||||||
14 | great-grandparent, step-parent, or sibling must not | ||||||
15 | diminish the parenting time of the parent who is not | ||||||
16 | related to the grandparent, great-grandparent, | ||||||
17 | step-parent, or sibling seeking visitation; or | ||||||
18 | (E) the child is born to parents who are not | ||||||
19 | married to each other, the parents are not living | ||||||
20 | together, and the petitioner is a grandparent, | ||||||
21 | great-grandparent, step-parent, or sibling of the | ||||||
22 | child, and parentage has been established by a court of | ||||||
23 | competent jurisdiction. | ||||||
24 | (2) In addition to the factors set forth in subdivision | ||||||
25 | (b)(5) of this Section, the court should consider: | ||||||
26 | (A) whether the child resided with the petitioner |
| |||||||
| |||||||
1 | for at least 6 consecutive months with or without a | ||||||
2 | parent present; | ||||||
3 | (B) whether the child had frequent and regular | ||||||
4 | contact or visitation with the petitioner for at least | ||||||
5 | 12 consecutive months; and | ||||||
6 | (C) whether the grandparent, great-grandparent, | ||||||
7 | sibling, or step-parent was a primary caretaker of the | ||||||
8 | child for a period of not less than 6 consecutive | ||||||
9 | months within the 24-month period immediately | ||||||
10 | preceding the commencement of the proceeding. | ||||||
11 | (3) Any order granting visitation privileges with the | ||||||
12 | child to a grandparent or great-grandparent who is related | ||||||
13 | to the child through a parent whose contact with the child | ||||||
14 | is prohibited or restricted shall contain the following | ||||||
15 | provision: | ||||||
16 | "If the (grandparent or great-grandparent, whichever | ||||||
17 | is applicable) who has been granted visitation privileges | ||||||
18 | under this order uses the visitation privileges to | ||||||
19 | facilitate contact between the child and the child's parent | ||||||
20 | whose contact with the child has been prohibited or | ||||||
21 | restricted, the visitation privileges granted under this | ||||||
22 | order shall be permanently revoked." | ||||||
23 | (4) A petition for visitation privileges may not be | ||||||
24 | filed pursuant to this subsection (c) by the parents or | ||||||
25 | grandparents of a parent of the child if parentage between | ||||||
26 | the child and the related parent has not been legally |
| |||||||
| |||||||
1 | established. | ||||||
2 | (d) Modification of visitation orders. | ||||||
3 | (1) Unless by stipulation of the parties, no motion to | ||||||
4 | modify a grandparent, great-grandparent, sibling, or | ||||||
5 | step-parent visitation order may be made earlier than 2 | ||||||
6 | years after the date the order was filed, unless the court | ||||||
7 | permits it to be made on the basis of affidavits that there | ||||||
8 | is reason to believe the child's present environment may | ||||||
9 | endanger seriously the child's mental, physical, or | ||||||
10 | emotional health. | ||||||
11 | (2) The court shall not modify an order that grants | ||||||
12 | visitation to a grandparent, great-grandparent, sibling, | ||||||
13 | or step-parent unless it finds by clear and convincing | ||||||
14 | evidence, upon the basis of facts that have arisen since | ||||||
15 | the prior visitation order or that were unknown to the | ||||||
16 | court at the time of entry of the prior visitation order, | ||||||
17 | that a change has occurred in the circumstances of the | ||||||
18 | child or his or her parent, and that the modification is | ||||||
19 | necessary to protect the mental, physical, or emotional | ||||||
20 | health of the child. The court shall state in its decision | ||||||
21 | specific findings of fact in support of its modification or | ||||||
22 | termination of the grandparent, great-grandparent, | ||||||
23 | sibling, or step-parent visitation. A child's parent may | ||||||
24 | always petition to modify visitation upon changed | ||||||
25 | circumstances when necessary to promote the child's best | ||||||
26 | interests. |
| |||||||
| |||||||
1 | (3) Notice of a motion requesting modification of a | ||||||
2 | visitation order shall be provided as set forth in | ||||||
3 | subsection (c) of Section 601.2 of this Act. | ||||||
4 | (4) Attorney's fees and costs shall be assessed against | ||||||
5 | a party seeking modification of the visitation order if the | ||||||
6 | court finds that the modification action is vexatious and | ||||||
7 | constitutes harassment. | ||||||
8 | (5) If any court has entered an order prohibiting a | ||||||
9 | parent of a child from any contact with a child or | ||||||
10 | restricting the parent's contact with the child, the | ||||||
11 | following provisions shall apply: | ||||||
12 | (A) If an order has been entered granting | ||||||
13 | visitation privileges with the child to a grandparent | ||||||
14 | or great-grandparent who is related to the child | ||||||
15 | through the parent whose contact with the child is | ||||||
16 | prohibited or restricted, the visitation privileges of | ||||||
17 | the grandparent or great-grandparent may be revoked | ||||||
18 | if: | ||||||
19 | (i) a court has entered an order prohibiting | ||||||
20 | the parent from any contact with the child, and the | ||||||
21 | grandparent or great-grandparent is found to have | ||||||
22 | used his or her visitation privileges to | ||||||
23 | facilitate contact between the child and the | ||||||
24 | parent; or | ||||||
25 | (ii) a court has entered an order restricting | ||||||
26 | the parent's contact with the child, and the |
| |||||||
| |||||||
1 | grandparent or great-grandparent is found to have | ||||||
2 | used his or her visitation privileges to | ||||||
3 | facilitate contact between the child and the | ||||||
4 | parent in a manner that violates the terms of the | ||||||
5 | order restricting the parent's contact with the | ||||||
6 | child. | ||||||
7 | Nothing in this paragraph (5) limits the authority of | ||||||
8 | the court to enforce its orders in any manner permitted by | ||||||
9 | law. | ||||||
10 | (e) No child's grandparent, great-grandparent, sibling, or | ||||||
11 | step-parent who was convicted of any offense involving an | ||||||
12 | illegal sex act perpetrated upon a victim less than 18 years of | ||||||
13 | age including, but not limited to, offenses for violations of | ||||||
14 | Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, | ||||||
15 | or Article 12 of the Criminal Code of 1961 or the Criminal Code | ||||||
16 | of 2012, is entitled to visitation while incarcerated or while | ||||||
17 | on parole, probation, conditional discharge, periodic | ||||||
18 | imprisonment, or mandatory supervised release for that | ||||||
19 | offense, and upon discharge from incarceration for a | ||||||
20 | misdemeanor offense or upon discharge from parole, probation, | ||||||
21 | conditional discharge, periodic imprisonment, or mandatory | ||||||
22 | supervised release for a felony offense. Visitation shall be | ||||||
23 | denied until the person successfully completes a treatment | ||||||
24 | program approved by the court. Upon completion of treatment, | ||||||
25 | the court may deny visitation based on the factors listed in | ||||||
26 | subdivision (b)(5) of Section 607 of this Act. |
| |||||||
| |||||||
1 | (f) No child's grandparent, great-grandparent, sibling, or | ||||||
2 | step-parent may be granted visitation under this Section if he | ||||||
3 | or she has been convicted of first degree murder of a parent, | ||||||
4 | grandparent, great-grandparent, or sibling of the child who is | ||||||
5 | the subject of the visitation request. Pursuant to a motion to | ||||||
6 | modify visitation, the court shall revoke visitation rights | ||||||
7 | previously granted to any person who would otherwise be | ||||||
8 | entitled to petition for visitation rights under this Section, | ||||||
9 | if the person has been convicted of first degree murder of a | ||||||
10 | parent, grandparent, great-grandparent, or sibling of the | ||||||
11 | child who is the subject of the visitation order. Until an | ||||||
12 | order is entered pursuant to this subsection, no person may | ||||||
13 | visit, with the child present, a person who has been convicted | ||||||
14 | of first degree murder of the parent, grandparent, | ||||||
15 | great-grandparent, or sibling of the child without the consent | ||||||
16 | of the child's parent, other than a parent convicted of first | ||||||
17 | degree murder as set forth herein, or legal guardian. | ||||||
18 | (750 ILCS 5/602.10 new) | ||||||
19 | Sec. 602.10. Parenting plan. | ||||||
20 | (a) Filing of parenting plan. All parents, within 120 days | ||||||
21 | after service or filing of any petition for allocation of | ||||||
22 | parental responsibilities, must file with the court, either | ||||||
23 | jointly or separately, a proposed parenting plan. The time | ||||||
24 | period for filing a parenting plan may be extended by the court | ||||||
25 | for good cause shown. |
| |||||||
| |||||||
1 | (b) No parenting plan filed. In the absence of filing of | ||||||
2 | one or more parenting plans, the court must conduct an | ||||||
3 | evidentiary hearing to allocate parental responsibilities.
| ||||||
4 | (c) Mediation. The court shall order mediation to assist | ||||||
5 | the parents in formulating or modifying a parenting plan or in | ||||||
6 | implementing a parenting plan. Costs under this subsection | ||||||
7 | shall be allocated between the parties pursuant to the | ||||||
8 | applicable statute or Supreme Court Rule.
| ||||||
9 | (d) Parents' agreement on parenting plan. The parents may | ||||||
10 | agree on a parenting plan at any time. The parenting plan must | ||||||
11 | be in writing and signed by both parents. The parents must | ||||||
12 | submit the parenting plan to the court for approval within 120 | ||||||
13 | days after service of a petition for allocation of parental | ||||||
14 | responsibilities, parenting time, or the filing of an | ||||||
15 | appearance, except for good cause shown. If the court does not | ||||||
16 | approve the parenting plan, the court shall make express | ||||||
17 | findings of the reason or reasons for its refusal to approve | ||||||
18 | the plan. The court, on its own motion, may conduct an | ||||||
19 | evidentiary hearing to determine whether the parenting plan is | ||||||
20 | in the child's best interests.
| ||||||
21 | (e) Parents cannot agree on parenting plan. When parents | ||||||
22 | fail to submit an agreed parenting plan, each parent must file | ||||||
23 | and submit a written, signed parenting plan to the court within | ||||||
24 | 120 days after the filing of an appearance, except for good | ||||||
25 | cause shown. The determination of residential parenting time | ||||||
26 | should be based on the child's best interests. The filing of |
| |||||||
| |||||||
1 | the plan may be excused by the court if: | ||||||
2 | (1) the parties have commenced mediation for the | ||||||
3 | purpose of formulating a parenting plan; or | ||||||
4 | (2) the parents have agreed in writing to extend the | ||||||
5 | time for filing a proposed plan and the court has approved | ||||||
6 | such an extension; or | ||||||
7 | (3) the court orders otherwise for good cause shown.
| ||||||
8 | (f) Parenting plan contents. At a minimum, a parenting plan | ||||||
9 | must set forth the following: | ||||||
10 | (1) an allocation of significant decision-making | ||||||
11 | responsibilities; | ||||||
12 | (2) provisions for the child's living arrangements and | ||||||
13 | for each parent's parenting time, including either: | ||||||
14 | (A) a schedule that designates in which parent's | ||||||
15 | home the minor child will reside on given days; or | ||||||
16 | (B) a formula or method for determining such a | ||||||
17 | schedule in sufficient detail to be enforced in a | ||||||
18 | subsequent proceeding; | ||||||
19 | (3) a mediation provision addressing any proposed | ||||||
20 | revisions or disputes, except that this provision is not | ||||||
21 | required if one parent is allocated all significant | ||||||
22 | decision-making responsibilities; | ||||||
23 | (4) each parent's right of access to medical, dental, | ||||||
24 | and psychological records (subject to the Mental Health and | ||||||
25 | Developmental Disabilities Confidentiality Act), child | ||||||
26 | care records, and school and extracurricular records, |
| |||||||
| |||||||
1 | reports, and schedules, unless expressly denied by a court | ||||||
2 | order or denied under subsection (g) of Section 602.5; | ||||||
3 | (5) a designation of the parent who will be denominated | ||||||
4 | as the parent with the majority of the residential | ||||||
5 | responsibility for purposes of Section 606.10;
| ||||||
6 | (6) the child's residential address for school | ||||||
7 | enrollment purposes only; | ||||||
8 | (7) each parent's residence address and phone number, | ||||||
9 | and each parent's place of employment and employment | ||||||
10 | address and phone number; | ||||||
11 | (8) a requirement that a parent changing his or her | ||||||
12 | residence provide at least 60 days prior written notice of | ||||||
13 | the change to any other parent under the parenting plan or | ||||||
14 | allocation judgment, unless such notice is impracticable | ||||||
15 | or unless otherwise ordered by the court. If such notice is | ||||||
16 | impracticable, written notice shall be given at the | ||||||
17 | earliest date practicable. At a minimum, the notice shall | ||||||
18 | set forth the following: | ||||||
19 | (A) the intended date of the change of residence; | ||||||
20 | and | ||||||
21 | (B) the address of the new residence; | ||||||
22 | (9) provisions requiring each parent to notify the | ||||||
23 | other of emergencies, health care, travel plans, or other | ||||||
24 | significant child-related issues; | ||||||
25 | (10) transportation arrangements between the parents; | ||||||
26 | (11) provisions for communications with the child |
| |||||||
| |||||||
1 | during the other parent's parenting time; | ||||||
2 | (12) provisions for resolving issues arising from a | ||||||
3 | parent's future relocation, if applicable; | ||||||
4 | (13) provisions for future modifications of the | ||||||
5 | parenting plan, if specified events occur; | ||||||
6 | (14) provisions for the exercise of the right of first | ||||||
7 | refusal, if so desired, that are consistent with the best | ||||||
8 | interests of the minor child; provisions in the plan for | ||||||
9 | the exercise of the right of first refusal must include: | ||||||
10 | (i) the length and kind of child-care requirements | ||||||
11 | invoking the right of first refusal; | ||||||
12 | (ii) notification to the other parent and for his | ||||||
13 | or her response; | ||||||
14 | (iii) transportation requirements; and | ||||||
15 | (iv) any other provision related to the exercise of | ||||||
16 | the right of first refusal necessary to protect and | ||||||
17 | promote the best interests of the minor child; and | ||||||
18 | (15) any other provision that addresses the child's | ||||||
19 | best interests or that will otherwise facilitate | ||||||
20 | cooperation between the parents. | ||||||
21 | The personal information under items (6), (7), and (8) of | ||||||
22 | this subsection is not required if there is evidence of or the | ||||||
23 | parenting plan states that there is a history of domestic | ||||||
24 | violence or abuse, or it is shown that the release of the | ||||||
25 | information is not in the child's or parent's best interests. | ||||||
26 | (g) The court shall conduct a trial or hearing to determine |
| |||||||
| |||||||
1 | a plan which it finds to be in the best interests of the child | ||||||
2 | and maximizes the child's relationship and access to both | ||||||
3 | parents. The court shall take the parenting plans into | ||||||
4 | consideration when determining parenting time and | ||||||
5 | responsibilities at trial or hearing. | ||||||
6 | (h) The court may consider, consistent with the best | ||||||
7 | interests of the child as defined in Section 602.7 of this Act, | ||||||
8 | whether to award to one or both of the parties the right of | ||||||
9 | first refusal in accordance with Section 602.3 of this Act. | ||||||
10 | (750 ILCS 5/603.5 new) | ||||||
11 | Sec. 603.5. Temporary orders. | ||||||
12 | (a) A court may order a temporary allocation of parental | ||||||
13 | responsibilities in the child's best interests before the entry | ||||||
14 | of a final allocation judgment. Any temporary allocation shall | ||||||
15 | be made in accordance with the standards set forth in Sections | ||||||
16 | 602.5 and 602.7: (i) after a hearing; or (ii) if there is no | ||||||
17 | objection, on the basis of a parenting plan that, at a minimum, | ||||||
18 | complies with subsection (f) of Section 602.10. | ||||||
19 | (b) A temporary order allocating parental responsibilities | ||||||
20 | shall be deemed vacated when the action in which it was granted | ||||||
21 | is dismissed, unless a parent moves to continue the action for | ||||||
22 | allocation of parental responsibilities filed under Section | ||||||
23 | 601.5. | ||||||
24 | (750 ILCS 5/603.10 new) |
| |||||||
| |||||||
1 | Sec. 603.10. Restriction of parental responsibilities. | ||||||
2 | (a) After a hearing, if the court finds by a preponderance | ||||||
3 | of the evidence that a parent engaged in any conduct that | ||||||
4 | seriously endangered the child's mental, moral, or physical | ||||||
5 | health or that significantly impaired the child's emotional | ||||||
6 | development, the court shall enter orders as necessary to | ||||||
7 | protect the child. Such orders may include, but are not limited | ||||||
8 | to, orders for one or more of the following: | ||||||
9 | (1) a reduction, elimination, or other adjustment of | ||||||
10 | the parent's decision-making responsibilities or parenting | ||||||
11 | time, or both decision-making responsibilities and | ||||||
12 | parenting time; | ||||||
13 | (2) supervision, including ordering the Department of | ||||||
14 | Children and Family Services to exercise continuing | ||||||
15 | supervision under Section 5 of the Children and Family | ||||||
16 | Services Act to ensure compliance with the allocation | ||||||
17 | judgment; | ||||||
18 | (3) requiring the exchange of the child between the | ||||||
19 | parents through an intermediary or in a protected setting; | ||||||
20 | (4) restraining a parent's communication with or | ||||||
21 | proximity to the other parent or the child; | ||||||
22 | (5) requiring a parent to abstain from possessing or | ||||||
23 | consuming alcohol or non-prescribed drugs while exercising | ||||||
24 | parenting time with the child and within a specified period | ||||||
25 | immediately preceding the exercise of parenting time; | ||||||
26 | (6) restricting the presence of specific persons while |
| |||||||
| |||||||
1 | a parent is exercising parenting time with the child; | ||||||
2 | (7) requiring a parent to post a bond to secure the | ||||||
3 | return of the child following the parent's exercise of | ||||||
4 | parenting time or to secure other performance required by | ||||||
5 | the court; | ||||||
6 | (8) requiring a parent to complete a treatment program | ||||||
7 | for perpetrators of abuse, for drug or alcohol abuse, or | ||||||
8 | for other behavior that is the basis for restricting | ||||||
9 | parental responsibilities under this Section; and | ||||||
10 | (9) any other constraints or conditions that the court | ||||||
11 | deems necessary to provide for the child's safety or | ||||||
12 | welfare. | ||||||
13 | (b) The court may modify an order restricting parental | ||||||
14 | responsibilities if, after a hearing, the court finds by a | ||||||
15 | preponderance of the evidence that a modification is in the | ||||||
16 | child's best interests based on (i) a change of circumstances | ||||||
17 | that occurred after the entry of an order restricting parental | ||||||
18 | responsibilities; or (ii) conduct of which the court was | ||||||
19 | previously unaware that seriously endangers the child. In | ||||||
20 | determining whether to modify an order under this subsection, | ||||||
21 | the court must consider factors that include, but need not be | ||||||
22 | limited to, the following: | ||||||
23 | (1) abuse, neglect, or abandonment of the child as | ||||||
24 | determined by any findings of the Department of Children | ||||||
25 | and Family Services, including an indicated report filed | ||||||
26 | under the Abused and Neglected Child Reporting Act; |
| |||||||
| |||||||
1 | (2) abusing or allowing abuse of another person that | ||||||
2 | had an impact upon the child; | ||||||
3 | (3) use of drugs, alcohol, or any other substance in a | ||||||
4 | way that interferes with the parent's ability to perform | ||||||
5 | caretaking functions with respect to the child; and | ||||||
6 | (4) persistent continuing interference with the other | ||||||
7 | parent's access to the child, except for actions taken with | ||||||
8 | a reasonable, good-faith belief that they are necessary to | ||||||
9 | protect the child's safety pending adjudication of the | ||||||
10 | facts underlying that belief, provided that the | ||||||
11 | interfering parent initiates a proceeding to determine | ||||||
12 | those facts as soon as practicable. | ||||||
13 | (c) An order granting parenting time to a parent or other | ||||||
14 | person may be revoked by the court if that parent is found to | ||||||
15 | have knowingly used his or her parenting time to facilitate | ||||||
16 | contact between the child and a parent who has been barred from | ||||||
17 | contact with the child or to have knowingly used his or her | ||||||
18 | parenting time to facilitate contact with the child that | ||||||
19 | violates any restrictions imposed on the parent's parenting | ||||||
20 | time by a court of competent jurisdiction. Nothing in this | ||||||
21 | subsection limits a court's authority to enforce its orders in | ||||||
22 | any other manner authorized by law. | ||||||
23 | (d) An order granting parenting time with a child whose | ||||||
24 | parent is prohibited from contact with the child, or whose | ||||||
25 | parenting time is restricted, shall contain the following | ||||||
26 | provision: |
| |||||||
| |||||||
1 | "If a person granted parenting time under this order | ||||||
2 | uses that time to facilitate contact between the child and | ||||||
3 | a parent whose parenting time is restricted, or if such a | ||||||
4 | person violates any restrictions placed on his or her | ||||||
5 | parenting time by the court, the parenting time granted | ||||||
6 | under this order shall be revoked until further order of | ||||||
7 | court." | ||||||
8 | (e) A parent who, after a hearing, is determined by the | ||||||
9 | court to have been convicted of any offense involving an | ||||||
10 | illegal sex act perpetrated upon a victim less than 18 years of | ||||||
11 | age, including but not limited to an offense under Article 11 | ||||||
12 | of the Criminal Code of 2012, is not entitled to parenting time | ||||||
13 | while incarcerated or while on parole, probation, conditional | ||||||
14 | discharge, periodic imprisonment, or mandatory supervised | ||||||
15 | release for a felony offense, until the parent complies with | ||||||
16 | such terms and conditions as the court determines are in the | ||||||
17 | child's best interests, taking into account the exact nature of | ||||||
18 | the offense and what, if any, treatment in which the parent | ||||||
19 | successfully participated. | ||||||
20 | (f) A parent may not, while the child is present, visit any | ||||||
21 | other parent of the child who has been convicted of first | ||||||
22 | degree murder, unless the court finds, after considering all | ||||||
23 | relevant factors, including those set forth in subsection (c) | ||||||
24 | of Section 602.5, that it would be in the child's best | ||||||
25 | interests to allow the child to be present during such a visit. |
| |||||||
| |||||||
1 | (750 ILCS 5/604.10 new) | ||||||
2 | Sec. 604.10. Interviews; evaluations; investigation. | ||||||
3 | (a) Court's interview of child. The court may interview the | ||||||
4 | child in chambers to ascertain the child's wishes as to the | ||||||
5 | allocation of parental responsibilities. Counsel shall be | ||||||
6 | present at the interview unless otherwise agreed upon by the | ||||||
7 | parties. The entire interview shall be recorded by a court | ||||||
8 | reporter. The transcript of the interview shall be filed under | ||||||
9 | seal and released only upon order of the court. The cost of the | ||||||
10 | court reporter and transcript shall be paid by the court. | ||||||
11 | (b) Court's professional. The court may seek the advice of | ||||||
12 | any professional, whether or not regularly employed by the | ||||||
13 | court, to assist the court in determining the child's best | ||||||
14 | interests. The advice to the court shall be in writing and sent | ||||||
15 | by the professional to counsel for the parties and to the | ||||||
16 | court, under seal. The writing may be admitted into evidence | ||||||
17 | without testimony from its author, unless a party objects. A | ||||||
18 | professional consulted by the court shall testify as the | ||||||
19 | court's witness and be subject to cross-examination. The court | ||||||
20 | shall order all costs and fees of the professional to be paid | ||||||
21 | by one or more of the parties, subject to reallocation in | ||||||
22 | accordance with subsection (a) of Section 508. | ||||||
23 | The professional's report must, at a minimum, set forth the | ||||||
24 | following: | ||||||
25 | (1) a description of the procedures employed during the | ||||||
26 | evaluation; |
| |||||||
| |||||||
1 | (2) a report of the data collected; | ||||||
2 | (3) all test results; | ||||||
3 | (4) any conclusions of the professional relating to the | ||||||
4 | allocation of parental responsibilities under Sections | ||||||
5 | 602.5 and 602.7; | ||||||
6 | (5) any recommendations of the professional concerning | ||||||
7 | the allocation of parental responsibilities or the child's | ||||||
8 | relocation; and | ||||||
9 | (6) an explanation of any limitations in the evaluation | ||||||
10 | or any reservations of the professional regarding the | ||||||
11 | resulting recommendations. | ||||||
12 | The professional shall send his or her report to all | ||||||
13 | attorneys of record, and to any party not represented, at least | ||||||
14 | 60 days before the hearing on the allocation of parental | ||||||
15 | responsibilities. The court shall examine and consider the | ||||||
16 | professionals report only after it has been admitted into | ||||||
17 | evidence or after the parties have waived their right to | ||||||
18 | cross-examine the professional. | ||||||
19 | (c) Evaluation by a party's retained professional. In a | ||||||
20 | proceeding to allocate parental responsibilities or to | ||||||
21 | relocate a child, upon notice and motion made by a parent or | ||||||
22 | any party to the litigation within a reasonable time before | ||||||
23 | trial, the court shall order an evaluation to assist the court | ||||||
24 | in determining the child's best interests unless the court | ||||||
25 | finds that an evaluation under this Section is untimely or not | ||||||
26 | in the best interests of the child. The evaluation may be in |
| |||||||
| |||||||
1 | place of or in addition to any advice given to the court by a | ||||||
2 | professional under subsection (b). A motion for an evaluation | ||||||
3 | under this subsection must, at a minimum, identify the proposed | ||||||
4 | evaluator and the evaluator's specialty or discipline. An order | ||||||
5 | for an evaluation under this subsection must set forth the | ||||||
6 | evaluator's name, address, and telephone number and the time, | ||||||
7 | place, conditions, and scope of the evaluation. No person shall | ||||||
8 | be required to travel an unreasonable distance for the | ||||||
9 | evaluation. The party requesting the evaluation shall pay the | ||||||
10 | evaluator's fees and costs unless otherwise ordered by the | ||||||
11 | court. | ||||||
12 | The evaluator's report must, at a minimum, set forth the | ||||||
13 | following: | ||||||
14 | (1) a description of the procedures employed during the | ||||||
15 | evaluation; | ||||||
16 | (2) a report of the data collected; | ||||||
17 | (3) all test results; | ||||||
18 | (4) any conclusions of the evaluator relating to the | ||||||
19 | allocation of parental responsibilities under Sections | ||||||
20 | 602.5 and 602.7; | ||||||
21 | (5) any recommendations of the evaluator concerning | ||||||
22 | the allocation of parental responsibilities or the child's | ||||||
23 | relocation; and | ||||||
24 | (6) an explanation of any limitations in the evaluation | ||||||
25 | or any reservations of the evaluator regarding the | ||||||
26 | resulting recommendations. |
| |||||||
| |||||||
1 | A party who retains a professional to conduct an evaluation | ||||||
2 | under this subsection shall cause the evaluator's written | ||||||
3 | report to be sent to the attorneys of record no less than 60 | ||||||
4 | days before the hearing on the allocation of parental | ||||||
5 | responsibilities, unless otherwise ordered by the court; if a | ||||||
6 | party fails to comply with this provision, the court may not | ||||||
7 | admit the evaluator's report into evidence and may not allow | ||||||
8 | the evaluator to testify. | ||||||
9 | The party calling an evaluator to testify at trial shall | ||||||
10 | disclose the evaluator as a controlled expert witness in | ||||||
11 | accordance with the Supreme Court Rules. | ||||||
12 | Any party to the litigation may call the evaluator as a | ||||||
13 | witness. That party shall pay the evaluator's fees and costs | ||||||
14 | for testifying, unless otherwise ordered by the court. | ||||||
15 | (d) Investigation. Upon notice and a motion by a parent or | ||||||
16 | any party to the litigation, or upon the court's own motion, | ||||||
17 | the court may order an investigation and report to assist the | ||||||
18 | court in allocating parental responsibilities. The
| ||||||
19 | investigation may be made by any agency, private entity, or | ||||||
20 | individual deemed appropriate by the court. The court shall | ||||||
21 | specify the purpose and scope of the investigation. | ||||||
22 | The investigator's report must, at a minimum, set forth the | ||||||
23 | following: | ||||||
24 | (1) a description of the procedures employed during the | ||||||
25 | investigation; | ||||||
26 | (2) a report of the data collected; |
| |||||||
| |||||||
1 | (3) all test results; | ||||||
2 | (4) any conclusions of the investigator relating to the | ||||||
3 | allocation of parental responsibilities under Sections | ||||||
4 | 602.5 and 602.7; | ||||||
5 | (5) any recommendations of the investigator concerning | ||||||
6 | the allocation of parental responsibilities or the child's | ||||||
7 | relocation; and | ||||||
8 | (6) an explanation of any limitations in the | ||||||
9 | investigation or any reservations of the investigator | ||||||
10 | regarding the resulting recommendations. | ||||||
11 | The investigator shall send his or her report to all | ||||||
12 | attorneys of record, and to any party not represented, at least | ||||||
13 | 60 days before the hearing on the allocation of parental | ||||||
14 | responsibilities. The court shall examine and consider the | ||||||
15 | investigator's report only after it has been admitted into | ||||||
16 | evidence or after the parties have waived their right to | ||||||
17 | cross-examine the investigator. | ||||||
18 | The investigator shall make available to all attorneys of | ||||||
19 | record, and to any party not represented, the investigator's | ||||||
20 | file, and the names and addresses of all persons whom the | ||||||
21 | investigator has consulted. Any party to the proceeding may | ||||||
22 | call the investigator, or any person consulted by the | ||||||
23 | investigator as a court's witness, for cross-examination. No | ||||||
24 | fees shall be paid for any investigation by a governmental | ||||||
25 | agency. The fees incurred by any other investigator shall be | ||||||
26 | allocated in accordance with Section 508. |
| |||||||
| |||||||
1 | (750 ILCS 5/606.5 new) | ||||||
2 | Sec. 606.5. Hearings. | ||||||
3 | (a) Proceedings to allocate parental responsibilities | ||||||
4 | shall receive priority in being set for hearing. | ||||||
5 | (b) The court, without a jury, shall determine questions of | ||||||
6 | law and fact. | ||||||
7 | (c) Previous statements made by the child relating to any | ||||||
8 | allegations that the child is an abused or neglected child | ||||||
9 | within the meaning of the Abused and Neglected Child Reporting | ||||||
10 | Act, or an abused or neglected minor within the meaning of the | ||||||
11 | Juvenile Court Act of 1987, shall be admissible in evidence in | ||||||
12 | a hearing concerning allocation of parental responsibilities | ||||||
13 | in accordance with Section 11.1 of the Abused and Neglected | ||||||
14 | Child Reporting Act. No such statement, however, if | ||||||
15 | uncorroborated and not subject to cross examination, shall be | ||||||
16 | sufficient in itself to support a finding of abuse or neglect.
| ||||||
17 | (d) If the court finds that a public hearing may be | ||||||
18 | detrimental to the child's best interests, the court shall | ||||||
19 | exclude the public from the hearing, but the court may admit | ||||||
20 | any person having: | ||||||
21 | (1) a direct and legitimate interest in the case; or | ||||||
22 | (2) a legitimate educational or research interest in | ||||||
23 | the work of the court, but only with the permission of both | ||||||
24 | parties and subject to court approval. | ||||||
25 | (e) The court may make an appropriate order sealing the |
| |||||||
| |||||||
1 | records of any interview, report, investigation, or testimony.
| ||||||
2 | (750 ILCS 5/606.10 new) | ||||||
3 | Sec. 606.10. Designation of custodian for purposes of other | ||||||
4 | statutes. Solely for the purposes of all State and federal | ||||||
5 | statutes that require a designation or determination of custody | ||||||
6 | or a custodian, a parenting plan shall designate the parent who | ||||||
7 | is allocated the majority of residential responsibility. This | ||||||
8 | designation shall not affect parents' rights and | ||||||
9 | responsibilities under the parenting plan. | ||||||
10 | (750 ILCS 5/607.5 new)
| ||||||
11 | Sec. 607.5. Abuse of allocated parenting time. | ||||||
12 | (a) The court shall provide an expedited procedure for the | ||||||
13 | enforcement of allocated parenting time. | ||||||
14 | (b) An action for the enforcement of allocated parenting | ||||||
15 | time may be commenced by a parent or a person appointed under | ||||||
16 | Section 506 by filing a petition setting forth: (i) the | ||||||
17 | petitioner's name and residence address or mailing address, | ||||||
18 | except that if the petition states that disclosure of | ||||||
19 | petitioner's address would risk abuse of petitioner or any | ||||||
20 | member of petitioner's family or household or reveal the | ||||||
21 | confidential address of a shelter for domestic violence | ||||||
22 | victims, that address may be omitted from the petition; (ii) | ||||||
23 | the respondent's name and place of residence, place of | ||||||
24 | employment, or mailing address; (iii) the terms of the |
| |||||||
| |||||||
1 | parenting plan or allocation judgment then in effect; (iv) the | ||||||
2 | nature of the violation of the allocation of parenting time, | ||||||
3 | giving dates and other relevant information; and (v) that a | ||||||
4 | reasonable attempt was made to resolve the dispute. | ||||||
5 | (c) If the court finds by a preponderance of the evidence | ||||||
6 | that a parent has not complied with allocated parenting time | ||||||
7 | according to an approved parenting plan or a court order, the | ||||||
8 | court, in the child's best interests, shall issue an order that | ||||||
9 | may include one or more of the following: | ||||||
10 | (1) an imposition of additional terms and conditions | ||||||
11 | consistent with the court's previous allocation of | ||||||
12 | parenting time or other order; | ||||||
13 | (2) a requirement that either or both of the parties | ||||||
14 | attend a parental education program at the expense of the | ||||||
15 | non-complying parent; | ||||||
16 | (3) a requirement that the parties participate in | ||||||
17 | family or individual counseling, the expense of which shall | ||||||
18 | be allocated by the court upon consideration of all | ||||||
19 | relevant factors; | ||||||
20 | (4) a requirement that the non-complying parent post a | ||||||
21 | cash bond or other security to ensure future compliance, | ||||||
22 | including a provision that the bond or other security may | ||||||
23 | be forfeited to the other parent for payment of expenses on | ||||||
24 | behalf of the child as the court shall direct; | ||||||
25 | (5) a requirement that makeup parenting time be | ||||||
26 | provided for the aggrieved parent or child under the |
| |||||||
| |||||||
1 | following conditions: | ||||||
2 | (A) that the parenting time is of the same type and | ||||||
3 | duration as the parenting time that was denied, | ||||||
4 | including but not limited to parenting time during | ||||||
5 | weekends, on holidays, and on weekdays and during times | ||||||
6 | when the child is not in school; | ||||||
7 | (B) that the parenting time is made up within 6 | ||||||
8 | months after the noncompliance occurs, unless the | ||||||
9 | period of time or holiday cannot be made up within 6 | ||||||
10 | months, in which case the parenting time shall be made | ||||||
11 | up within one year after the noncompliance occurs; | ||||||
12 | (6) a finding that the non-complying parent is in | ||||||
13 | contempt of court; | ||||||
14 | (7) an imposition on the non-complying parent of an | ||||||
15 | appropriate civil fine per incident of denied parenting | ||||||
16 | time; | ||||||
17 | (8) a requirement that the non-complying parent | ||||||
18 | reimburse the other parent for all reasonable expenses | ||||||
19 | incurred as a result of the violation of the parenting plan | ||||||
20 | or court order; and | ||||||
21 | (9) any other provision that may promote the child's | ||||||
22 | best interests. | ||||||
23 | (d) In addition to any other order entered under subsection | ||||||
24 | (c), except for good cause shown, the court shall order a | ||||||
25 | parent who has failed to provide allocated parenting time or to | ||||||
26 | exercise allocated parenting time to pay the aggrieved party |
| |||||||
| |||||||
1 | his or her reasonable attorney's fees, court costs, and | ||||||
2 | expenses associated with an action brought under this Section. | ||||||
3 | If the court finds that the respondent in an action brought | ||||||
4 | under this Section has not violated the allocated parenting | ||||||
5 | time, the court may order the petitioner to pay the | ||||||
6 | respondent's reasonable attorney's fees, court costs, and | ||||||
7 | expenses incurred in the action. | ||||||
8 | (e) Nothing in this Section precludes a party from | ||||||
9 | maintaining any other action as provided by law. | ||||||
10 | (f) When the court issues an order holding a party in | ||||||
11 | contempt for violation of a parenting time order and finds that | ||||||
12 | the party engaged in parenting time abuse, the court may order | ||||||
13 | one or more of the following: | ||||||
14 | (1) Suspension of a party's Illinois driving | ||||||
15 | privileges pursuant to Section 7-703 of the Illinois | ||||||
16 | Vehicle Code until the court determines that the party is | ||||||
17 | in compliance with the parenting time order. The court may | ||||||
18 | also order that a party be issued a family financial | ||||||
19 | responsibility driving permit that would allow limited | ||||||
20 | driving privileges for employment, for medical purposes, | ||||||
21 | and to transport a child to or from scheduled parenting | ||||||
22 | time in order to comply with a parenting time order in | ||||||
23 | accordance with subsection (a-1) of Section 7-702.1 of the | ||||||
24 | Illinois Vehicle Code. | ||||||
25 | (2) Placement of a party on probation with such | ||||||
26 | conditions of probation as the court deems advisable. |
| |||||||
| |||||||
1 | (3) Sentencing of a party to periodic imprisonment for | ||||||
2 | a period not to exceed 6 months; provided, that the court | ||||||
3 | may permit the party to be released for periods of time | ||||||
4 | during the day or night to: | ||||||
5 | (A) work; or | ||||||
6 | (B) conduct a business or other self-employed | ||||||
7 | occupation. | ||||||
8 | (4) Find that a party in engaging in parenting time | ||||||
9 | abuse is guilty of a petty offense and should be fined an | ||||||
10 | amount of no more than $500 for each finding of parenting | ||||||
11 | time abuse. | ||||||
12 | (g) When the court issues an order holding a party in | ||||||
13 | contempt of court for violation of a parenting order, the clerk | ||||||
14 | shall transmit a copy of the contempt order to the sheriff of | ||||||
15 | the county. The sheriff shall furnish a copy of each contempt | ||||||
16 | order to the Department of State Police on a daily basis in the | ||||||
17 | form and manner required by the Department. The Department | ||||||
18 | shall maintain a complete record and index of the contempt | ||||||
19 | orders and make this data available to all local law | ||||||
20 | enforcement agencies. | ||||||
21 | (h) Nothing contained in this Section shall be construed to | ||||||
22 | limit the court's contempt power. | ||||||
23 | (750 ILCS 5/609.2 new) | ||||||
24 | Sec. 609.2. Parent's relocation.
| ||||||
25 | (a) A parent's relocation constitutes a substantial change |
| |||||||
| |||||||
1 | in circumstances for purposes of Section 610.5. | ||||||
2 | (b) Only a parent who has been allocated a majority of | ||||||
3 | parenting time may seek to relocate with a child, except that | ||||||
4 | when parents have equal parenting time, either parent may seek | ||||||
5 | to relocate with a child. | ||||||
6 | (c) A parent intending a relocation, as that term is | ||||||
7 | defined in paragraph (1), (2), or (3) of subsection (g) of | ||||||
8 | Section 600 of this Act, must provide at least 60 days' prior | ||||||
9 | written notice to any other parent under the parenting plan or | ||||||
10 | allocation judgment unless such notice is impracticable (in | ||||||
11 | which case written notice shall be given at the earliest date | ||||||
12 | practicable) or unless otherwise ordered by the court. A copy | ||||||
13 | of the notice required under this Section shall be filed with | ||||||
14 | the clerk of the circuit court. At a minimum, the notice must | ||||||
15 | set forth the following: | ||||||
16 | (1) the intended date of the parent's relocation; | ||||||
17 | (2) the address of the parent's intended new residence, | ||||||
18 | if known; and | ||||||
19 | (3) the length of time the relocation will last, if the | ||||||
20 | relocation is not for an indefinite or permanent period. | ||||||
21 | The court may consider a parent's failure to comply with | ||||||
22 | the notice requirements of this Section without good cause (i) | ||||||
23 | as a factor in determining whether the parent's relocation is | ||||||
24 | in good faith; and (ii) as a basis for awarding reasonable | ||||||
25 | attorney's fees and costs resulting from the parent's failure | ||||||
26 | to comply with these provisions. |
| |||||||
| |||||||
1 | (d) If the parent who is not seeking to relocate signs the | ||||||
2 | notice that was provided pursuant to subsection (c) and the | ||||||
3 | relocating parent files the notice with the court, relocation | ||||||
4 | shall be allowed without any further court action. If the | ||||||
5 | non-relocating parent objects to or fails to sign the notice | ||||||
6 | provided pursuant to subsection (c), the parent seeking | ||||||
7 | relocation must file a petition seeking permission to relocate. | ||||||
8 | (e) The court shall modify the parenting plan or allocation | ||||||
9 | judgment to accommodate a parent's relocation as agreed by the | ||||||
10 | parents, as long as the agreed modification is in the child's | ||||||
11 | best interests. | ||||||
12 | (f) The court shall modify the parenting plan or allocation | ||||||
13 | judgment to accommodate the relocation without changing the | ||||||
14 | proportion of parental responsibilities between the parties, | ||||||
15 | if practicable, as long as such a modification is in the | ||||||
16 | child's best interests. | ||||||
17 | (g) If a parent's relocation makes it impracticable to | ||||||
18 | maintain the same proportion of parental responsibilities | ||||||
19 | between the parties, the court shall modify the parenting plan | ||||||
20 | or allocation judgment in accordance with the child's best | ||||||
21 | interests. The court shall consider the following factors: | ||||||
22 | (1) the factors set forth in subsection (c) of this | ||||||
23 | Section; | ||||||
24 | (2) the reasons, if any, why a parent is objecting to | ||||||
25 | the
intended relocation; | ||||||
26 | (3) the history and quality of each parent's |
| |||||||
| |||||||
1 | relationship with the child since the implementation of any | ||||||
2 | previous parenting plan or allocation judgment; | ||||||
3 | (4) the educational opportunities for the child at the | ||||||
4 | existing location and at the proposed new location; | ||||||
5 | (5) the presence or absence of extended family at the | ||||||
6 | existing location and at the proposed new location; | ||||||
7 | (6) the anticipated impact of the relocation on the | ||||||
8 | child; | ||||||
9 | (7) whether the court will be able to fashion a | ||||||
10 | reasonable allocation of parental responsibilities between | ||||||
11 | all parents if the relocation occurs; | ||||||
12 | (8) the wishes of the child after taking into | ||||||
13 | consideration the child's age and maturity; | ||||||
14 | (9) whether the intended relocation is valid, in good | ||||||
15 | faith, and to a location that is reasonable in light of the | ||||||
16 | purpose; | ||||||
17 | (10) possible arrangements for the exercise of | ||||||
18 | parental responsibilities appropriate to the parents' | ||||||
19 | resources and circumstances and the developmental level of | ||||||
20 | the child; | ||||||
21 | (11) minimization of the impairment to a parent-child | ||||||
22 | relationship caused by a parent's relocation; and | ||||||
23 | (12) any other relevant factors bearing on the child's | ||||||
24 | best interests. | ||||||
25 | (h) Unless the non-relocating parent demonstrates that a | ||||||
26 | reallocation of parental responsibilities is necessary to |
| |||||||
| |||||||
1 | prevent harm to the child, the court shall deny the | ||||||
2 | non-relocating parent's request for a reallocation of parental | ||||||
3 | responsibilities based on relocation if the non-relocating | ||||||
4 | parent either: | ||||||
5 | (1) failed to object to the relocation within the time | ||||||
6 | allowed; or | ||||||
7 | (2) has substantially failed or refused to exercise the | ||||||
8 | parental responsibilities allocated to him or her under the | ||||||
9 | parenting plan or allocation judgment. | ||||||
10 | (i) If a parent is intending a relocation, as that term is | ||||||
11 | defined in paragraph (4) of subsection (g) of Section 600 of | ||||||
12 | this Act, the parent is not required to comply with the notice | ||||||
13 | requirements of subsection (c) of this Section or seek the | ||||||
14 | permission of the court to accomplish the relocation, provided | ||||||
15 | that Illinois continues to be considered the home state of the | ||||||
16 | child for all purposes and the court retains jurisdiction of | ||||||
17 | the parties and the child. | ||||||
18 | (750 ILCS 5/610.5 new) | ||||||
19 | Sec. 610.5. Modification. | ||||||
20 | (a) Unless by stipulation of the parties or except as | ||||||
21 | provided in subsection (b) of this Section, no motion to modify | ||||||
22 | an order allocating parental responsibilities may be made | ||||||
23 | earlier than 2 years after its date, unless the court permits | ||||||
24 | it to be made on the basis of affidavits that there is reason | ||||||
25 | to believe the child's present environment may endanger |
| |||||||
| |||||||
1 | seriously his or her mental, moral, or physical health or | ||||||
2 | significantly impair the child's emotional development. | ||||||
3 | (b) A motion to modify an order allocating parental | ||||||
4 | responsibilities may be made at any time by a party who has | ||||||
5 | been informed of the existence of facts requiring notice to be | ||||||
6 | given under Section 607.5 of this Act. | ||||||
7 | (c) Except in a case concerning the modification of any | ||||||
8 | restriction of parental responsibilities under Section 603.10,
| ||||||
9 | the court shall modify a parenting plan or allocation judgment | ||||||
10 | when necessary to serve the child's best interests if the court | ||||||
11 | finds, by a preponderance of the evidence, that on the basis of | ||||||
12 | facts that have arisen since the entry of the existing | ||||||
13 | parenting plan or allocation judgment or were not anticipated | ||||||
14 | therein, a substantial change has occurred in the circumstances | ||||||
15 | of the child or of either parent and that a modification is | ||||||
16 | necessary to serve the child's best interests. | ||||||
17 | (d) The court shall modify a parenting plan or allocation | ||||||
18 | judgment in accordance with a parental agreement, unless it | ||||||
19 | finds that the modification is not in the child's best | ||||||
20 | interests. | ||||||
21 | (e) The court may modify a parenting plan or allocation | ||||||
22 | judgment without a showing of changed circumstances if (i) the | ||||||
23 | modification is in the child's best interests; and (ii) any of | ||||||
24 | the following are proven as to the modification: | ||||||
25 | (1) the modification reflects the actual arrangement | ||||||
26 | under which the child has been receiving care, without |
| |||||||
| |||||||
1 | parental objection, for the 6 months preceding the filing | ||||||
2 | of the petition for modification, provided that the | ||||||
3 | arrangement is not the result of a parent's acquiescence | ||||||
4 | resulting from circumstances that negated the parent's | ||||||
5 | ability to give meaningful consent; | ||||||
6 | (2) the modification constitutes a minor modification | ||||||
7 | in the parenting plan or allocation judgment; | ||||||
8 | (3) the modification is necessary to modify an agreed | ||||||
9 | parenting plan or allocation judgment that the court would | ||||||
10 | not have ordered or approved under Section 602.5 or 602.7 | ||||||
11 | had the court been aware of the circumstances at the time | ||||||
12 | of the order or approval; or | ||||||
13 | (4) the parties agree to the modification. | ||||||
14 | (f) Attorney's fees and costs shall be assessed against a | ||||||
15 | party seeking
modification if the court finds that the | ||||||
16 | modification action is vexatious or constitutes harassment. If | ||||||
17 | the court finds that a parent has repeatedly filed frivolous | ||||||
18 | motions for modification, the court may bar the parent from | ||||||
19 | filing a motion for modification for a period of time. | ||||||
20 | (750 ILCS 5/612 new) | ||||||
21 | Sec. 612. Application of provisions concerning allocation | ||||||
22 | of parental responsibilities. | ||||||
23 | (a) The changes made by this amendatory Act of the 98th | ||||||
24 | General Assembly apply to all proceedings concerning | ||||||
25 | allocation of parental responsibilities commenced on or after |
| |||||||
| |||||||
1 | the effective date of this amendatory Act of the 98th General | ||||||
2 | Assembly. | ||||||
3 | (b) The changes made by this amendatory Act of the 98th | ||||||
4 | General Assembly apply to all actions concerning allocation of | ||||||
5 | parental responsibilities pending on the effective date of this | ||||||
6 | amendatory Act of the 98th General Assembly and to all | ||||||
7 | proceedings concerning allocation of parental responsibilities | ||||||
8 | commenced on or before that effective date with respect to | ||||||
9 | issues on which a judgment has not been entered. Evidence | ||||||
10 | adduced after the effective date of this amendatory Act of the | ||||||
11 | 98th General Assembly shall comply with the changes made by | ||||||
12 | this amendatory Act of the 98th General Assembly. | ||||||
13 | (c) The changes made by this amendatory Act of the 98th | ||||||
14 | General Assembly apply to all proceedings commenced on or after | ||||||
15 | the effective date of this amendatory Act of the 98th General | ||||||
16 | Assembly for the modification of a judgment or order concerning | ||||||
17 | allocation of parental responsibilities entered before that | ||||||
18 | effective date. | ||||||
19 | (d) In any action or proceeding concerning allocation of | ||||||
20 | parental responsibilities in which an appeal was pending or a | ||||||
21 | new trial was ordered before the effective date of this | ||||||
22 | amendatory Act of the 98th General Assembly, the law in effect | ||||||
23 | at the time of the order sustaining the appeal or the new trial | ||||||
24 | governs the appeal, the new trial, and any subsequent trial or | ||||||
25 | appeal.
|
| |||||||
| |||||||
1 | (750 ILCS 5/406 rep.)
| ||||||
2 | (750 ILCS 5/407 rep.)
| ||||||
3 | (750 ILCS 5/408 rep.)
| ||||||
4 | (750 ILCS 5/412 rep.)
| ||||||
5 | (750 ILCS 5/514 rep.)
| ||||||
6 | (750 ILCS 5/515 rep.)
| ||||||
7 | (750 ILCS 5/516 rep.)
| ||||||
8 | (750 ILCS 5/517 rep.)
| ||||||
9 | (750 ILCS 5/601 rep.)
| ||||||
10 | (750 ILCS 5/601.5 rep.)
| ||||||
11 | (750 ILCS 5/602 rep.)
| ||||||
12 | (750 ILCS 5/602.1 rep.)
| ||||||
13 | (750 ILCS 5/603 rep.)
| ||||||
14 | (750 ILCS 5/604 rep.)
| ||||||
15 | (750 ILCS 5/604.5 rep.)
| ||||||
16 | (750 ILCS 5/605 rep.)
| ||||||
17 | (750 ILCS 5/606 rep.)
| ||||||
18 | (750 ILCS 5/607 rep.)
| ||||||
19 | (750 ILCS 5/607.1 rep.)
| ||||||
20 | (750 ILCS 5/608 rep.)
| ||||||
21 | (750 ILCS 5/609 rep.)
| ||||||
22 | (750 ILCS 5/610 rep.)
| ||||||
23 | (750 ILCS 5/611 rep.)
| ||||||
24 | (750 ILCS 5/701 rep.)
| ||||||
25 | (750 ILCS 5/703 rep.)
| ||||||
26 | Section 5-20. The Illinois Marriage and Dissolution of |
| |||||||
| |||||||
1 | Marriage Act is amended by repealing Sections 406, 407, 408, | ||||||
2 | 412, 514, 515, 516, 517, 601, 601.5, 602, 602.1, 603, 604, | ||||||
3 | 604.5, 605, 606, 607, 607.1, 608, 609, 610, 611, 701, and 703. | ||||||
4 | Section 5-23. The Uniform Child-Custody Jurisdiction and | ||||||
5 | Enforcement Act is amended by changing Section 201 as follows:
| ||||||
6 | (750 ILCS 36/201)
| ||||||
7 | Sec. 201. Initial Child-Custody Jurisdiction.
| ||||||
8 | (a) Except as otherwise provided in Section 204, a court of | ||||||
9 | this State has
jurisdiction to make an initial child-custody | ||||||
10 | determination only if:
| ||||||
11 | (1) this State is the home state of the child on the | ||||||
12 | date of the
commencement of the proceeding, or was the home | ||||||
13 | state of the child within six
months before the | ||||||
14 | commencement of the proceeding and the child is absent from
| ||||||
15 | this State but a parent or person acting as a parent | ||||||
16 | continues to live in this
State;
| ||||||
17 | (2) a court of another state does not have jurisdiction | ||||||
18 | under paragraph
(1), or a court of the home state of the | ||||||
19 | child has declined to exercise
jurisdiction on
the ground | ||||||
20 | that this State is the more appropriate forum under Section | ||||||
21 | 207 or
208,
and:
| ||||||
22 | (A) the child and the child's parents, or the child | ||||||
23 | and at least one
parent or a person acting as a parent, | ||||||
24 | have a significant connection with this
State
other |
| |||||||
| |||||||
1 | than mere physical presence; and
| ||||||
2 | (B) substantial evidence is available in this | ||||||
3 | State concerning the
child's care, protection, | ||||||
4 | training, and personal relationships;
| ||||||
5 | (3) all courts having jurisdiction under paragraph (1) | ||||||
6 | or (2) have
declined to exercise jurisdiction on the ground | ||||||
7 | that a court of this State is
the more
appropriate forum to | ||||||
8 | determine the custody of the child under Section 207 or
| ||||||
9 | 208;
or
| ||||||
10 | (4) no court of any other state would have jurisdiction | ||||||
11 | under the criteria
specified in paragraph (1), (2), or (3).
| ||||||
12 | (b) Subsection (a) is the exclusive jurisdictional basis | ||||||
13 | for making a
child-custody determination by a court of this | ||||||
14 | State ; provided, however, that for purposes of this Act, this | ||||||
15 | State remains the home state of the child even after a | ||||||
16 | relocation, as that term is defined in paragraph (4) of | ||||||
17 | subsection (g) of Section 600 of the Illinois Marriage and | ||||||
18 | Dissolution of Marriage Act .
| ||||||
19 | (c) Physical presence of, or personal jurisdiction over, a | ||||||
20 | party or a child
is
not necessary or sufficient to make a | ||||||
21 | child-custody determination.
| ||||||
22 | (Source: P.A. 93-108, eff. 1-1-04.)
| ||||||
23 | Section 5-25. The Illinois Domestic Violence Act of 1986 is | ||||||
24 | amended by changing Sections 214 and 223 as follows:
|
| |||||||
| |||||||
1 | (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
| ||||||
2 | Sec. 214. Order of protection; remedies.
| ||||||
3 | (a) Issuance of order. If the court finds that petitioner | ||||||
4 | has been
abused by a family or household member or that | ||||||
5 | petitioner is a high-risk
adult who has been abused, neglected, | ||||||
6 | or exploited, as defined in this Act,
an order of protection | ||||||
7 | prohibiting the abuse, neglect, or exploitation
shall issue; | ||||||
8 | provided that petitioner must also satisfy the requirements of
| ||||||
9 | one of the following Sections, as appropriate: Section 217 on | ||||||
10 | emergency
orders, Section 218 on interim orders, or Section 219 | ||||||
11 | on plenary orders.
Petitioner shall not be denied an order of | ||||||
12 | protection because petitioner or
respondent is a minor. The | ||||||
13 | court, when determining whether or not to issue
an order of | ||||||
14 | protection, shall not require physical manifestations of abuse
| ||||||
15 | on the person of the victim. Modification and extension of | ||||||
16 | prior
orders of protection shall be in accordance with this | ||||||
17 | Act.
| ||||||
18 | (b) Remedies and standards. The remedies to be included in | ||||||
19 | an order of
protection shall be determined in accordance with | ||||||
20 | this Section and one of
the following Sections, as appropriate: | ||||||
21 | Section 217 on emergency orders,
Section 218 on interim orders, | ||||||
22 | and Section 219 on plenary orders. The
remedies listed in this | ||||||
23 | subsection shall be in addition to other civil or
criminal | ||||||
24 | remedies available to petitioner.
| ||||||
25 | (1) Prohibition of abuse, neglect, or exploitation. | ||||||
26 | Prohibit
respondent's harassment, interference with |
| |||||||
| |||||||
1 | personal liberty, intimidation
of a dependent, physical | ||||||
2 | abuse, or willful deprivation, neglect or
exploitation, as | ||||||
3 | defined in this Act, or stalking of the petitioner, as | ||||||
4 | defined
in Section 12-7.3 of the Criminal Code of 2012, if | ||||||
5 | such abuse, neglect,
exploitation, or stalking has | ||||||
6 | occurred or otherwise appears likely to occur if
not | ||||||
7 | prohibited.
| ||||||
8 | (2) Grant of exclusive possession of residence. | ||||||
9 | Prohibit respondent from
entering or remaining in any | ||||||
10 | residence, household, or premises of the petitioner,
| ||||||
11 | including one owned or leased by respondent, if petitioner | ||||||
12 | has a right to
occupancy thereof. The grant of exclusive | ||||||
13 | possession of the residence, household, or premises shall | ||||||
14 | not
affect title to real property, nor shall the court be | ||||||
15 | limited by the standard
set forth in Section 701 of the | ||||||
16 | Illinois Marriage and Dissolution of Marriage
Act.
| ||||||
17 | (A) Right to occupancy. A party has a right to | ||||||
18 | occupancy of a
residence or household if it is solely | ||||||
19 | or jointly owned or leased by that
party, that party's | ||||||
20 | spouse, a person with a legal duty to support that | ||||||
21 | party or
a minor child in that party's care, or by any | ||||||
22 | person or entity other than the
opposing party that | ||||||
23 | authorizes that party's occupancy (e.g., a domestic
| ||||||
24 | violence shelter). Standards set forth in subparagraph | ||||||
25 | (B) shall not preclude
equitable relief.
| ||||||
26 | (B) Presumption of hardships. If petitioner and |
| |||||||
| |||||||
1 | respondent
each has the right to occupancy of a | ||||||
2 | residence or household, the court
shall balance (i) the | ||||||
3 | hardships to respondent and any minor child or
| ||||||
4 | dependent adult in respondent's care resulting from | ||||||
5 | entry of this remedy with
(ii) the hardships to | ||||||
6 | petitioner and any minor child or dependent adult in
| ||||||
7 | petitioner's care resulting from continued exposure to | ||||||
8 | the risk of abuse
(should petitioner remain at the | ||||||
9 | residence or household) or from loss of
possession of | ||||||
10 | the residence or household (should petitioner leave to | ||||||
11 | avoid the
risk of abuse). When determining the balance | ||||||
12 | of hardships, the court shall
also take into account | ||||||
13 | the accessibility of the residence or household.
| ||||||
14 | Hardships need not be balanced if respondent does not | ||||||
15 | have a right to
occupancy.
| ||||||
16 | The balance of hardships is presumed to favor | ||||||
17 | possession by
petitioner unless the presumption is | ||||||
18 | rebutted by a preponderance of the
evidence, showing | ||||||
19 | that the hardships to respondent substantially | ||||||
20 | outweigh
the hardships to petitioner and any minor | ||||||
21 | child or dependent adult in
petitioner's care. The | ||||||
22 | court, on the request of petitioner or on its own
| ||||||
23 | motion, may order respondent to provide suitable, | ||||||
24 | accessible, alternate housing
for petitioner instead | ||||||
25 | of excluding respondent from a mutual residence or
| ||||||
26 | household.
|
| |||||||
| |||||||
1 | (3) Stay away order and additional prohibitions.
Order | ||||||
2 | respondent to stay away from petitioner or any other person
| ||||||
3 | protected by the order of protection, or prohibit | ||||||
4 | respondent from entering
or remaining present at | ||||||
5 | petitioner's school, place of employment, or other
| ||||||
6 | specified places at times when petitioner is present, or | ||||||
7 | both, if
reasonable, given the balance of hardships. | ||||||
8 | Hardships need not be balanced for
the court to enter a | ||||||
9 | stay away order or prohibit entry if respondent has no
| ||||||
10 | right to enter the premises.
| ||||||
11 | (A) If an order of protection grants petitioner | ||||||
12 | exclusive possession
of the residence, or prohibits | ||||||
13 | respondent from entering the residence,
or orders | ||||||
14 | respondent to stay away from petitioner or other
| ||||||
15 | protected persons, then the court may allow respondent | ||||||
16 | access to the
residence to remove items of clothing and | ||||||
17 | personal adornment
used exclusively by respondent, | ||||||
18 | medications, and other items as the court
directs. The | ||||||
19 | right to access shall be exercised on only one occasion | ||||||
20 | as the
court directs and in the presence of an | ||||||
21 | agreed-upon adult third party or law
enforcement | ||||||
22 | officer.
| ||||||
23 | (B) When the petitioner and the respondent attend | ||||||
24 | the same public, private, or non-public elementary, | ||||||
25 | middle, or high school, the court when issuing an order | ||||||
26 | of protection and providing relief shall consider the |
| |||||||
| |||||||
1 | severity of the act, any continuing physical danger or | ||||||
2 | emotional distress to the petitioner, the educational | ||||||
3 | rights guaranteed to the petitioner and respondent | ||||||
4 | under federal and State law, the availability of a | ||||||
5 | transfer of the respondent to another school, a change | ||||||
6 | of placement or a change of program of the respondent, | ||||||
7 | the expense, difficulty, and educational disruption | ||||||
8 | that would be caused by a transfer of the respondent to | ||||||
9 | another school, and any other relevant facts of the | ||||||
10 | case. The court may order that the respondent not | ||||||
11 | attend the public, private, or non-public elementary, | ||||||
12 | middle, or high school attended by the petitioner, | ||||||
13 | order that the respondent accept a change of placement | ||||||
14 | or change of program, as determined by the school | ||||||
15 | district or private or non-public school, or place | ||||||
16 | restrictions on the respondent's movements within the | ||||||
17 | school attended by the petitioner.
The respondent | ||||||
18 | bears the burden of proving by a preponderance of the | ||||||
19 | evidence that a transfer, change of placement, or | ||||||
20 | change of program of the respondent is not available. | ||||||
21 | The respondent also bears the burden of production with | ||||||
22 | respect to the expense, difficulty, and educational | ||||||
23 | disruption that would be caused by a transfer of the | ||||||
24 | respondent to another school. A transfer, change of | ||||||
25 | placement, or change of program is not unavailable to | ||||||
26 | the respondent solely on the ground that the respondent |
| |||||||
| |||||||
1 | does not agree with the school district's or private or | ||||||
2 | non-public school's transfer, change of placement, or | ||||||
3 | change of program or solely on the ground that the | ||||||
4 | respondent fails or refuses to consent or otherwise | ||||||
5 | does not take an action required to effectuate a | ||||||
6 | transfer, change of placement, or change of program.
| ||||||
7 | When a court orders a respondent to stay away from the | ||||||
8 | public, private, or non-public school attended by the | ||||||
9 | petitioner and the respondent requests a transfer to | ||||||
10 | another attendance center within the respondent's | ||||||
11 | school district or private or non-public school, the | ||||||
12 | school district or private or non-public school shall | ||||||
13 | have sole discretion to determine the attendance | ||||||
14 | center to which the respondent is transferred.
In the | ||||||
15 | event the court order results in a transfer of the | ||||||
16 | minor respondent to another attendance center, a | ||||||
17 | change in the respondent's placement, or a change of | ||||||
18 | the respondent's program, the parents, guardian, or | ||||||
19 | legal custodian of the respondent is responsible for | ||||||
20 | transportation and other costs associated with the | ||||||
21 | transfer or change. | ||||||
22 | (C) The court may order the parents, guardian, or | ||||||
23 | legal custodian of a minor respondent to take certain | ||||||
24 | actions or to refrain from taking certain actions to | ||||||
25 | ensure that the respondent complies with the order. In | ||||||
26 | the event the court orders a transfer of the respondent |
| |||||||
| |||||||
1 | to another school, the parents, guardian, or legal | ||||||
2 | custodian of the respondent is responsible for | ||||||
3 | transportation and other costs associated with the | ||||||
4 | change of school by the respondent.
| ||||||
5 | (4) Counseling. Require or recommend the respondent to | ||||||
6 | undergo
counseling for a specified duration with a social | ||||||
7 | worker, psychologist,
clinical psychologist, psychiatrist, | ||||||
8 | family service agency, alcohol or
substance abuse program, | ||||||
9 | mental health center guidance counselor, agency
providing | ||||||
10 | services to elders, program designed for domestic violence
| ||||||
11 | abusers or any other guidance service the court deems | ||||||
12 | appropriate. The Court may order the respondent in any | ||||||
13 | intimate partner relationship to report to an Illinois | ||||||
14 | Department of Human Services protocol approved partner | ||||||
15 | abuse intervention program for an assessment and to follow | ||||||
16 | all recommended treatment.
| ||||||
17 | (5) Physical care and possession of the minor child. In | ||||||
18 | order to protect
the minor child from abuse, neglect, or | ||||||
19 | unwarranted separation from the person
who has been the | ||||||
20 | minor child's primary caretaker, or to otherwise protect | ||||||
21 | the
well-being of the minor child, the court may do either | ||||||
22 | or both of the
following: (i) grant petitioner physical | ||||||
23 | care or possession of the minor child,
or both, or (ii) | ||||||
24 | order respondent to return a minor child to, or not remove | ||||||
25 | a
minor child from, the physical care of a parent or person | ||||||
26 | in loco parentis.
|
| |||||||
| |||||||
1 | If a court finds, after a hearing, that respondent has | ||||||
2 | committed abuse
(as defined in Section 103) of a minor | ||||||
3 | child, there shall be a
rebuttable presumption that | ||||||
4 | awarding physical care to respondent would not
be in the | ||||||
5 | minor child's best interest.
| ||||||
6 | (6) Temporary allocation of parental responsibilities | ||||||
7 | legal custody . Award temporary parental responsibility | ||||||
8 | legal custody to petitioner
in accordance with this | ||||||
9 | Section, the Illinois Marriage and Dissolution of
Marriage | ||||||
10 | Act, the Illinois Parentage Act of 1984, and this State's | ||||||
11 | Uniform
Child-Custody Jurisdiction and Enforcement Act.
| ||||||
12 | If a court finds, after a hearing, that respondent has | ||||||
13 | committed abuse (as
defined in Section 103) of a minor | ||||||
14 | child, there shall be a rebuttable
presumption that | ||||||
15 | awarding temporary parental responsibility legal custody | ||||||
16 | to respondent would not be in
the child's best interest.
| ||||||
17 | (7) Parenting time Visitation . Determine the parenting | ||||||
18 | time visitation rights , if any, of respondent in
any case | ||||||
19 | in which the court awards physical care or allocates | ||||||
20 | temporary parental responsibility legal custody of
a minor | ||||||
21 | child to petitioner. The court shall restrict or deny | ||||||
22 | respondent's parenting time
visitation with a minor child | ||||||
23 | if the court finds that respondent has done or is
likely to | ||||||
24 | do any of the following: (i) abuse or endanger the minor | ||||||
25 | child during parenting time
visitation ; (ii) use the | ||||||
26 | parenting time visitation as an opportunity to abuse or |
| |||||||
| |||||||
1 | harass
petitioner or petitioner's family or household | ||||||
2 | members; (iii) improperly
conceal or detain the minor | ||||||
3 | child; or (iv) otherwise act in a manner that is
not in the | ||||||
4 | best interests of the minor child. The court shall not be | ||||||
5 | limited
by the standards set forth in Section 603.10 607.1 | ||||||
6 | of the Illinois Marriage and
Dissolution of Marriage Act. | ||||||
7 | If the court grants parenting time visitation , the order | ||||||
8 | shall
specify dates and times for the parenting time | ||||||
9 | visitation to take place or other specific
parameters or | ||||||
10 | conditions that are appropriate. No order for parenting | ||||||
11 | time visitation shall
refer merely to the term "reasonable | ||||||
12 | parenting time visitation ".
| ||||||
13 | Petitioner may deny respondent access to the minor | ||||||
14 | child if, when
respondent arrives for parenting time | ||||||
15 | visitation , respondent is under the influence of drugs
or | ||||||
16 | alcohol and constitutes a threat to the safety and | ||||||
17 | well-being of
petitioner or petitioner's minor children or | ||||||
18 | is behaving in a violent or
abusive manner.
| ||||||
19 | If necessary to protect any member of petitioner's | ||||||
20 | family or
household from future abuse, respondent shall be | ||||||
21 | prohibited from coming to
petitioner's residence to meet | ||||||
22 | the minor child for parenting time visitation , and the
| ||||||
23 | parties shall submit to the court their recommendations for | ||||||
24 | reasonable
alternative arrangements for parenting time | ||||||
25 | visitation . A person may be approved to
supervise parenting | ||||||
26 | time visitation only after filing an affidavit accepting
|
| |||||||
| |||||||
1 | that responsibility and acknowledging accountability to | ||||||
2 | the court.
| ||||||
3 | (8) Removal or concealment of minor child. Prohibit | ||||||
4 | respondent from
removing a minor child from the State or | ||||||
5 | concealing the child within the State.
| ||||||
6 | (9) Order to appear. Order the respondent to appear in | ||||||
7 | court, alone
or with a minor child, to prevent abuse, | ||||||
8 | neglect, removal or concealment of
the child, to return the | ||||||
9 | child to the custody or care of the petitioner or
to permit | ||||||
10 | any court-ordered interview or examination of the child or | ||||||
11 | the
respondent.
| ||||||
12 | (10) Possession of personal property. Grant petitioner | ||||||
13 | exclusive
possession of personal property and, if | ||||||
14 | respondent has possession or
control, direct respondent to | ||||||
15 | promptly make it available to petitioner, if:
| ||||||
16 | (i) petitioner, but not respondent, owns the | ||||||
17 | property; or
| ||||||
18 | (ii) the parties own the property jointly; sharing | ||||||
19 | it would risk
abuse of petitioner by respondent or is | ||||||
20 | impracticable; and the balance of
hardships favors | ||||||
21 | temporary possession by petitioner.
| ||||||
22 | If petitioner's sole claim to ownership of the property | ||||||
23 | is that it is
marital property, the court may award | ||||||
24 | petitioner temporary possession
thereof under the | ||||||
25 | standards of subparagraph (ii) of this paragraph only if
a | ||||||
26 | proper proceeding has been filed under the Illinois |
| |||||||
| |||||||
1 | Marriage and
Dissolution of Marriage Act, as now or | ||||||
2 | hereafter amended.
| ||||||
3 | No order under this provision shall affect title to | ||||||
4 | property.
| ||||||
5 | (11) Protection of property. Forbid the respondent | ||||||
6 | from taking,
transferring, encumbering, concealing, | ||||||
7 | damaging or otherwise disposing of
any real or personal | ||||||
8 | property, except as explicitly authorized by the
court, if:
| ||||||
9 | (i) petitioner, but not respondent, owns the | ||||||
10 | property; or
| ||||||
11 | (ii) the parties own the property jointly,
and the | ||||||
12 | balance of hardships favors granting this remedy.
| ||||||
13 | If petitioner's sole claim to ownership of the property | ||||||
14 | is that it is
marital property, the court may grant | ||||||
15 | petitioner relief under subparagraph
(ii) of this | ||||||
16 | paragraph only if a proper proceeding has been filed under | ||||||
17 | the
Illinois Marriage and Dissolution of Marriage Act, as | ||||||
18 | now or hereafter amended.
| ||||||
19 | The court may further prohibit respondent from | ||||||
20 | improperly using the
financial or other resources of an | ||||||
21 | aged member of the family or household
for the profit or | ||||||
22 | advantage of respondent or of any other person.
| ||||||
23 | (11.5) Protection of animals. Grant the petitioner the | ||||||
24 | exclusive care, custody, or control of any animal owned, | ||||||
25 | possessed, leased, kept, or held by either the petitioner | ||||||
26 | or the respondent or a minor child residing in the |
| |||||||
| |||||||
1 | residence or household of either the petitioner or the | ||||||
2 | respondent and order the respondent to stay away from the | ||||||
3 | animal and forbid the respondent from taking, | ||||||
4 | transferring, encumbering, concealing, harming, or | ||||||
5 | otherwise disposing of the animal.
| ||||||
6 | (12) Order for payment of support. Order respondent to | ||||||
7 | pay temporary
support for the petitioner or any child in | ||||||
8 | the petitioner's care or over whom the petitioner has been | ||||||
9 | allocated parental responsibility
custody , when the | ||||||
10 | respondent has a legal obligation to support that person,
| ||||||
11 | in accordance with the Illinois Marriage and Dissolution
of | ||||||
12 | Marriage Act, which shall govern, among other matters, the | ||||||
13 | amount of
support, payment through the clerk and | ||||||
14 | withholding of income to secure
payment. An order for child | ||||||
15 | support may be granted to a petitioner with
lawful physical | ||||||
16 | care or custody of a child, or an order or agreement for
| ||||||
17 | physical care of a child or custody , prior to entry of an | ||||||
18 | order allocating parental responsibility for legal | ||||||
19 | custody .
Such a support order shall expire upon entry of a | ||||||
20 | valid order allocating parental responsibility differently | ||||||
21 | granting
legal custody to another , unless otherwise | ||||||
22 | provided in the custody order.
| ||||||
23 | (13) Order for payment of losses. Order respondent to | ||||||
24 | pay petitioner for
losses suffered as a direct result of | ||||||
25 | the abuse, neglect, or exploitation.
Such losses shall | ||||||
26 | include, but not be limited to, medical expenses, lost
|
| |||||||
| |||||||
1 | earnings or other support, repair or replacement of | ||||||
2 | property damaged or taken,
reasonable attorney's fees, | ||||||
3 | court costs and moving or other travel expenses,
including | ||||||
4 | additional reasonable expenses for temporary shelter and | ||||||
5 | restaurant
meals.
| ||||||
6 | (i) Losses affecting family needs. If a party is | ||||||
7 | entitled to seek
maintenance, child support or | ||||||
8 | property distribution from the other party
under the | ||||||
9 | Illinois Marriage and Dissolution of Marriage Act, as | ||||||
10 | now or
hereafter amended, the court may order | ||||||
11 | respondent to reimburse petitioner's
actual losses, to | ||||||
12 | the extent that such reimbursement would be | ||||||
13 | "appropriate
temporary relief", as authorized by | ||||||
14 | subsection (a)(3) of Section 501 of
that Act.
| ||||||
15 | (ii) Recovery of expenses. In the case of an | ||||||
16 | improper concealment
or removal of a minor child, the | ||||||
17 | court may order respondent to pay the
reasonable | ||||||
18 | expenses incurred or to be incurred in the search for | ||||||
19 | and recovery
of the minor child, including but not | ||||||
20 | limited to legal fees, court costs,
private | ||||||
21 | investigator fees, and travel costs.
| ||||||
22 | (14) Prohibition of entry. Prohibit the respondent | ||||||
23 | from entering or
remaining in the residence or household | ||||||
24 | while the respondent is under the
influence of alcohol or | ||||||
25 | drugs and constitutes a threat to the safety and
well-being | ||||||
26 | of the petitioner or the petitioner's children.
|
| |||||||
| |||||||
1 | (14.5) Prohibition of firearm possession.
| ||||||
2 | (a) Prohibit a respondent against whom an order of | ||||||
3 | protection was issued from possessing any firearms | ||||||
4 | during the duration of the order if the order: | ||||||
5 | (1) was issued after a hearing of which such | ||||||
6 | person received
actual notice, and at which such | ||||||
7 | person had an opportunity to
participate; | ||||||
8 | (2) restrains such person from harassing, | ||||||
9 | stalking, or
threatening an intimate partner of | ||||||
10 | such person or child of such
intimate partner or | ||||||
11 | person, or engaging in other conduct that
would | ||||||
12 | place an intimate partner in reasonable fear of | ||||||
13 | bodily
injury to the partner or child; and | ||||||
14 | (3)(i) includes a finding that such person | ||||||
15 | represents a
credible threat to the physical | ||||||
16 | safety of such intimate partner
or child; or
(ii) | ||||||
17 | by its terms explicitly prohibits the use, | ||||||
18 | attempted
use, or threatened use of physical force | ||||||
19 | against such intimate
partner or child that would | ||||||
20 | reasonably be expected to cause
bodily injury. | ||||||
21 | Any Firearm Owner's Identification Card in the
| ||||||
22 | possession of the respondent, except as provided in | ||||||
23 | subsection (b), shall be ordered by the court to be | ||||||
24 | turned
over to the local law enforcement agency. The | ||||||
25 | local law enforcement agency shall immediately mail | ||||||
26 | the card to the Department of State Police Firearm |
| |||||||
| |||||||
1 | Owner's Identification Card Office
for safekeeping. | ||||||
2 | The court shall
issue a warrant for seizure of any | ||||||
3 | firearm in the possession of the respondent, to be kept | ||||||
4 | by the local law enforcement agency for safekeeping, | ||||||
5 | except as provided in subsection (b).
The period of | ||||||
6 | safekeeping shall be for the duration of the order of | ||||||
7 | protection. The firearm or firearms and Firearm | ||||||
8 | Owner's Identification Card, if unexpired, shall at | ||||||
9 | the respondent's request, be returned to the | ||||||
10 | respondent at the end
of the order of protection. It is | ||||||
11 | the respondent's responsibility to notify the | ||||||
12 | Department of State Police Firearm Owner's | ||||||
13 | Identification Card Office.
| ||||||
14 | (b) If the respondent is a peace officer as defined | ||||||
15 | in Section 2-13 of
the
Criminal Code of 2012, the court | ||||||
16 | shall order that any firearms used by the
respondent in | ||||||
17 | the performance of his or her duties as a
peace officer | ||||||
18 | be surrendered to
the chief law enforcement executive | ||||||
19 | of the agency in which the respondent is
employed, who | ||||||
20 | shall retain the firearms for safekeeping for the | ||||||
21 | duration of the order of protection.
| ||||||
22 | (c) Upon expiration of the period of safekeeping, | ||||||
23 | if the firearms or Firearm Owner's Identification Card | ||||||
24 | cannot be returned to respondent because respondent | ||||||
25 | cannot be located, fails to respond to requests to | ||||||
26 | retrieve the firearms, or is not lawfully eligible to |
| |||||||
| |||||||
1 | possess a firearm, upon petition from the local law | ||||||
2 | enforcement agency, the court may order the local law | ||||||
3 | enforcement agency to destroy the firearms, use the | ||||||
4 | firearms for training purposes, or for any other | ||||||
5 | application as deemed appropriate by the local law | ||||||
6 | enforcement agency; or that the firearms be turned over | ||||||
7 | to a third party who is lawfully eligible to possess | ||||||
8 | firearms, and who does not reside with respondent.
| ||||||
9 | (15) Prohibition of access to records. If an order of | ||||||
10 | protection
prohibits respondent from having contact with | ||||||
11 | the minor child,
or if petitioner's address is omitted | ||||||
12 | under subsection (b) of
Section 203, or if necessary to | ||||||
13 | prevent abuse or wrongful removal or
concealment of a minor | ||||||
14 | child, the order shall deny respondent access to, and
| ||||||
15 | prohibit respondent from inspecting, obtaining, or | ||||||
16 | attempting to
inspect or obtain, school or any other | ||||||
17 | records of the minor child
who is in the care of | ||||||
18 | petitioner.
| ||||||
19 | (16) Order for payment of shelter services. Order | ||||||
20 | respondent to
reimburse a shelter providing temporary | ||||||
21 | housing and counseling services to
the petitioner for the | ||||||
22 | cost of the services, as certified by the shelter
and | ||||||
23 | deemed reasonable by the court.
| ||||||
24 | (17) Order for injunctive relief. Enter injunctive | ||||||
25 | relief necessary
or appropriate to prevent further abuse of | ||||||
26 | a family or household member
or further abuse, neglect, or |
| |||||||
| |||||||
1 | exploitation of a high-risk adult with
disabilities or to | ||||||
2 | effectuate one of the granted remedies, if supported by the
| ||||||
3 | balance of hardships. If the harm to be prevented by the | ||||||
4 | injunction is abuse
or any other harm that one of the | ||||||
5 | remedies listed in paragraphs (1) through
(16) of this | ||||||
6 | subsection is designed to prevent, no further evidence is
| ||||||
7 | necessary that the harm is an irreparable injury.
| ||||||
8 | (c) Relevant factors; findings.
| ||||||
9 | (1) In determining whether to grant a specific remedy, | ||||||
10 | other than
payment of support, the court shall consider
| ||||||
11 | relevant factors, including but not limited to the | ||||||
12 | following:
| ||||||
13 | (i) the nature, frequency, severity, pattern and | ||||||
14 | consequences of the
respondent's past abuse, neglect | ||||||
15 | or exploitation of the petitioner or
any family or | ||||||
16 | household member, including the concealment of his or | ||||||
17 | her
location in order to evade service of process or | ||||||
18 | notice, and the likelihood of
danger of future abuse, | ||||||
19 | neglect, or exploitation to petitioner or any member of
| ||||||
20 | petitioner's or respondent's family or household; and
| ||||||
21 | (ii) the danger that any minor child will be abused | ||||||
22 | or neglected or
improperly relocated removed from the | ||||||
23 | jurisdiction, improperly concealed within the
State or | ||||||
24 | improperly separated from the child's primary | ||||||
25 | caretaker.
| ||||||
26 | (2) In comparing relative hardships resulting to the |
| |||||||
| |||||||
1 | parties from loss
of possession of the family home, the | ||||||
2 | court shall consider relevant
factors, including but not | ||||||
3 | limited to the following:
| ||||||
4 | (i) availability, accessibility, cost, safety, | ||||||
5 | adequacy, location and
other characteristics of | ||||||
6 | alternate housing for each party and any minor child
or | ||||||
7 | dependent adult in the party's care;
| ||||||
8 | (ii) the effect on the party's employment; and
| ||||||
9 | (iii) the effect on the relationship of the party, | ||||||
10 | and any minor
child or dependent adult in the party's | ||||||
11 | care, to family, school, church
and community.
| ||||||
12 | (3) Subject to the exceptions set forth in paragraph | ||||||
13 | (4) of this
subsection, the court shall make its findings | ||||||
14 | in an official record or in
writing, and shall at a minimum | ||||||
15 | set forth the following:
| ||||||
16 | (i) That the court has considered the applicable | ||||||
17 | relevant factors
described in paragraphs (1) and (2) of | ||||||
18 | this subsection.
| ||||||
19 | (ii) Whether the conduct or actions of respondent, | ||||||
20 | unless
prohibited, will likely cause irreparable harm | ||||||
21 | or continued abuse.
| ||||||
22 | (iii) Whether it is necessary to grant the | ||||||
23 | requested relief in order
to protect petitioner or | ||||||
24 | other alleged abused persons.
| ||||||
25 | (4) For purposes of issuing an ex parte emergency order | ||||||
26 | of protection,
the court, as an alternative to or as a |
| |||||||
| |||||||
1 | supplement to making the findings
described in paragraphs | ||||||
2 | (c)(3)(i) through (c)(3)(iii) of this subsection, may
use | ||||||
3 | the following procedure:
| ||||||
4 | When a verified petition for an emergency order of | ||||||
5 | protection in
accordance with the requirements of Sections | ||||||
6 | 203 and 217 is
presented to the court, the court shall | ||||||
7 | examine petitioner on oath or
affirmation. An emergency | ||||||
8 | order of protection shall be issued by the court
if it | ||||||
9 | appears from the contents of the petition and the | ||||||
10 | examination of
petitioner that the averments are | ||||||
11 | sufficient to indicate abuse by
respondent and to support | ||||||
12 | the granting of relief under the issuance of the
emergency | ||||||
13 | order of protection.
| ||||||
14 | (5) Never married parties. No rights or | ||||||
15 | responsibilities for a minor
child born outside of marriage | ||||||
16 | attach to a putative father until a father and
child | ||||||
17 | relationship has been established under the Illinois | ||||||
18 | Parentage Act of
1984, the Illinois Public Aid Code, | ||||||
19 | Section 12 of the Vital Records Act, the
Juvenile Court Act | ||||||
20 | of 1987, the Probate Act of 1985, the Revised Uniform
| ||||||
21 | Reciprocal Enforcement of Support Act, the Uniform | ||||||
22 | Interstate Family Support
Act, the Expedited Child Support | ||||||
23 | Act of 1990, any judicial, administrative, or
other act of | ||||||
24 | another state or territory, any other Illinois statute, or | ||||||
25 | by any
foreign nation establishing the father and child | ||||||
26 | relationship, any other
proceeding substantially in |
| |||||||
| |||||||
1 | conformity with the Personal Responsibility and
Work | ||||||
2 | Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), | ||||||
3 | or where both
parties appeared in open court or at an | ||||||
4 | administrative hearing acknowledging
under
oath or | ||||||
5 | admitting by affirmation the existence of a father and | ||||||
6 | child
relationship.
Absent such an adjudication, finding, | ||||||
7 | or acknowledgement, no putative
father shall be granted
| ||||||
8 | temporary allocation of parental responsibilities, | ||||||
9 | including parenting time custody of the minor child, | ||||||
10 | visitation with the minor child, or
physical care and | ||||||
11 | possession of the minor child, nor shall an order of | ||||||
12 | payment
for support of the minor child be entered.
| ||||||
13 | (d) Balance of hardships; findings. If the court finds that | ||||||
14 | the balance
of hardships does not support the granting of a | ||||||
15 | remedy governed by
paragraph (2), (3), (10), (11), or (16) of | ||||||
16 | subsection (b) of this Section,
which may require such | ||||||
17 | balancing, the court's findings shall so
indicate and shall | ||||||
18 | include a finding as to whether granting the remedy will
result | ||||||
19 | in hardship to respondent that would substantially outweigh the | ||||||
20 | hardship
to petitioner from denial of the remedy. The findings | ||||||
21 | shall be an official
record or in writing.
| ||||||
22 | (e) Denial of remedies. Denial of any remedy shall not be | ||||||
23 | based, in
whole or in part, on evidence that:
| ||||||
24 | (1) Respondent has cause for any use of force, unless | ||||||
25 | that cause
satisfies the standards for justifiable use of | ||||||
26 | force provided by Article
7 of the Criminal Code of 2012;
|
| |||||||
| |||||||
1 | (2) Respondent was voluntarily intoxicated;
| ||||||
2 | (3) Petitioner acted in self-defense or defense of | ||||||
3 | another, provided
that, if petitioner utilized force, such | ||||||
4 | force was justifiable under
Article 7 of the Criminal Code | ||||||
5 | of 2012;
| ||||||
6 | (4) Petitioner did not act in self-defense or defense | ||||||
7 | of another;
| ||||||
8 | (5) Petitioner left the residence or household to avoid | ||||||
9 | further abuse,
neglect, or exploitation by respondent;
| ||||||
10 | (6) Petitioner did not leave the residence or household | ||||||
11 | to avoid further
abuse, neglect, or exploitation by | ||||||
12 | respondent;
| ||||||
13 | (7) Conduct by any family or household member excused | ||||||
14 | the abuse,
neglect, or exploitation by respondent, unless | ||||||
15 | that same conduct would have
excused such abuse, neglect, | ||||||
16 | or exploitation if the parties had not been
family or | ||||||
17 | household members.
| ||||||
18 | (Source: P.A. 96-701, eff. 1-1-10; 96-1239, eff. 1-1-11; | ||||||
19 | 97-158, eff. 1-1-12; 97-294, eff. 1-1-12; 97-813, eff. 7-13-12; | ||||||
20 | 97-1131, eff. 1-1-13; 97-1150, eff. 1-25-13.)
| ||||||
21 | (750 ILCS 60/223) (from Ch. 40, par. 2312-23)
| ||||||
22 | Sec. 223. Enforcement of orders of protection.
| ||||||
23 | (a) When violation is crime. A violation of any order of | ||||||
24 | protection,
whether issued in a civil or criminal proceeding, | ||||||
25 | shall be enforced
by a
criminal court when:
|
| |||||||
| |||||||
1 | (1) The respondent commits the crime of violation of an | ||||||
2 | order of
protection pursuant to Section 12-3.4 or 12-30 of | ||||||
3 | the Criminal Code of
1961 or the Criminal Code of 2012, by
| ||||||
4 | having knowingly violated:
| ||||||
5 | (i) remedies described in paragraphs (1), (2), | ||||||
6 | (3), (14),
or (14.5) of
subsection (b) of Section 214 | ||||||
7 | of this Act; or
| ||||||
8 | (ii) a remedy, which is substantially similar to | ||||||
9 | the remedies
authorized under paragraphs (1), (2), | ||||||
10 | (3), (14), and (14.5) of subsection (b)
of Section 214 | ||||||
11 | of this Act, in a valid order of protection which is | ||||||
12 | authorized
under the laws of another state, tribe, or | ||||||
13 | United States territory; or
| ||||||
14 | (iii) any other remedy when the act
constitutes a | ||||||
15 | crime against the protected parties as defined by the
| ||||||
16 | Criminal Code of 1961 or the Criminal Code of 2012.
| ||||||
17 | Prosecution for a violation of an order of
protection | ||||||
18 | shall not bar concurrent prosecution for any other crime,
| ||||||
19 | including any crime that may have been committed at the | ||||||
20 | time of the
violation of the order of protection; or
| ||||||
21 | (2) The respondent commits the crime of child abduction | ||||||
22 | pursuant
to Section 10-5 of the Criminal Code of 1961 or | ||||||
23 | the Criminal Code of 2012, by having knowingly violated:
| ||||||
24 | (i) remedies described in paragraphs (5), (6) or | ||||||
25 | (8) of subsection
(b) of
Section 214 of this Act; or
| ||||||
26 | (ii) a remedy, which is substantially similar to |
| |||||||
| |||||||
1 | the remedies
authorized under paragraphs (5), (6), or | ||||||
2 | (8) of subsection (b) of Section 214
of this Act, in a | ||||||
3 | valid order of protection which is authorized under the | ||||||
4 | laws
of another state, tribe, or United States | ||||||
5 | territory.
| ||||||
6 | (b) When violation is contempt of court. A violation of any | ||||||
7 | valid
Illinois order of protection, whether issued in a civil | ||||||
8 | or criminal
proceeding, may be enforced through civil or | ||||||
9 | criminal contempt procedures,
as appropriate, by any court with | ||||||
10 | jurisdiction, regardless where the act or
acts which violated | ||||||
11 | the order of protection were committed, to the extent
| ||||||
12 | consistent with the venue provisions of this Act. Nothing in | ||||||
13 | this Act
shall preclude any Illinois court from enforcing any | ||||||
14 | valid order of
protection issued in another state. Illinois | ||||||
15 | courts may enforce orders of
protection through both criminal | ||||||
16 | prosecution and contempt proceedings,
unless the action which | ||||||
17 | is second in time is barred by collateral estoppel
or the | ||||||
18 | constitutional prohibition against double jeopardy.
| ||||||
19 | (1) In a contempt proceeding where the petition for a | ||||||
20 | rule to show
cause sets forth facts evidencing an immediate | ||||||
21 | danger that the
respondent will flee the jurisdiction, | ||||||
22 | conceal a child, or inflict physical
abuse on the | ||||||
23 | petitioner or minor children or on dependent adults in
| ||||||
24 | petitioner's care, the court may order the
attachment of | ||||||
25 | the respondent without prior service of the rule to show
| ||||||
26 | cause or the petition for a rule to show cause. Bond shall |
| |||||||
| |||||||
1 | be set unless
specifically denied in writing.
| ||||||
2 | (2) A petition for a rule to show cause for violation | ||||||
3 | of an order of
protection shall be treated as an expedited | ||||||
4 | proceeding.
| ||||||
5 | (b-1) The court shall not hold a school district or private | ||||||
6 | or non-public school or any of its employees in civil or | ||||||
7 | criminal contempt unless the school district or private or | ||||||
8 | non-public school has been allowed to intervene. | ||||||
9 | (b-2) The court may hold the parents, guardian, or legal | ||||||
10 | custodian of a minor respondent in civil or criminal contempt | ||||||
11 | for a violation of any provision of any order entered under | ||||||
12 | this Act for conduct of the minor respondent in violation of | ||||||
13 | this Act if the
parents, guardian, or legal custodian directed, | ||||||
14 | encouraged, or assisted the respondent minor in such conduct. | ||||||
15 | (c) Violation of custody or support orders or temporary or | ||||||
16 | final judgments allocating parental responsibilities . A | ||||||
17 | violation of remedies
described in paragraphs (5), (6), (8), or | ||||||
18 | (9) of subsection (b) of Section
214 of this Act may be | ||||||
19 | enforced by any remedy provided by Section 607.5 611 of
the | ||||||
20 | Illinois Marriage and Dissolution of Marriage Act. The court | ||||||
21 | may
enforce any order for support issued under paragraph (12) | ||||||
22 | of subsection (b)
of Section 214 in the manner provided for | ||||||
23 | under Parts V and VII of the
Illinois Marriage and Dissolution | ||||||
24 | of Marriage Act.
| ||||||
25 | (d) Actual knowledge. An order of protection may be | ||||||
26 | enforced pursuant to
this Section if the respondent violates |
| |||||||
| |||||||
1 | the order after the
respondent has
actual knowledge of its | ||||||
2 | contents as shown through one of the following means:
| ||||||
3 | (1) By service, delivery, or notice under Section 210.
| ||||||
4 | (2) By notice under Section 210.1 or 211.
| ||||||
5 | (3) By service of an order of protection under Section | ||||||
6 | 222.
| ||||||
7 | (4) By other means demonstrating actual knowledge of | ||||||
8 | the contents of the
order.
| ||||||
9 | (e) The enforcement of an order of protection in civil or | ||||||
10 | criminal court
shall not be affected by either of the | ||||||
11 | following:
| ||||||
12 | (1) The existence of a separate, correlative order, | ||||||
13 | entered under Section
215.
| ||||||
14 | (2) Any finding or order entered in a conjoined | ||||||
15 | criminal proceeding.
| ||||||
16 | (f) Circumstances. The court, when determining whether or | ||||||
17 | not a
violation of an order of protection has occurred, shall | ||||||
18 | not require
physical manifestations of abuse on the person of | ||||||
19 | the victim.
| ||||||
20 | (g) Penalties.
| ||||||
21 | (1) Except as provided in paragraph (3) of this
| ||||||
22 | subsection, where the court finds the commission of a crime | ||||||
23 | or contempt of
court under subsections (a) or (b) of this | ||||||
24 | Section, the penalty shall be
the penalty that generally | ||||||
25 | applies in such criminal or contempt
proceedings, and may | ||||||
26 | include one or more of the following: incarceration,
|
| |||||||
| |||||||
1 | payment of restitution, a fine, payment of attorneys' fees | ||||||
2 | and costs, or
community service.
| ||||||
3 | (2) The court shall hear and take into account evidence | ||||||
4 | of any factors
in aggravation or mitigation before deciding | ||||||
5 | an appropriate penalty under
paragraph (1) of this | ||||||
6 | subsection.
| ||||||
7 | (3) To the extent permitted by law, the court is | ||||||
8 | encouraged to:
| ||||||
9 | (i) increase the penalty for the knowing violation | ||||||
10 | of
any order of protection over any penalty previously | ||||||
11 | imposed by any court
for respondent's violation of any | ||||||
12 | order of protection or penal statute
involving | ||||||
13 | petitioner as victim and respondent as defendant;
| ||||||
14 | (ii) impose a minimum penalty of 24 hours | ||||||
15 | imprisonment for respondent's
first violation of any | ||||||
16 | order of protection; and
| ||||||
17 | (iii) impose a minimum penalty of 48 hours | ||||||
18 | imprisonment for
respondent's second or subsequent | ||||||
19 | violation of an order of protection
| ||||||
20 | unless the court explicitly finds that an increased penalty | ||||||
21 | or that
period of imprisonment would be manifestly unjust.
| ||||||
22 | (4) In addition to any other penalties imposed for a | ||||||
23 | violation of an
order of protection, a criminal court may | ||||||
24 | consider evidence of any
violations of an order of | ||||||
25 | protection:
| ||||||
26 | (i) to increase, revoke or modify the bail bond on |
| |||||||
| |||||||
1 | an underlying
criminal charge pursuant to Section | ||||||
2 | 110-6 of the Code of Criminal Procedure
of 1963;
| ||||||
3 | (ii) to revoke or modify an order of probation, | ||||||
4 | conditional discharge or
supervision, pursuant to | ||||||
5 | Section 5-6-4 of the Unified Code of Corrections;
| ||||||
6 | (iii) to revoke or modify a sentence of periodic | ||||||
7 | imprisonment,
pursuant to Section 5-7-2 of the Unified | ||||||
8 | Code of Corrections.
| ||||||
9 | (5) In addition to any other penalties, the court shall | ||||||
10 | impose an
additional fine of $20 as authorized by Section | ||||||
11 | 5-9-1.11 of the Unified Code of
Corrections upon any person | ||||||
12 | convicted of or placed on supervision for a
violation of an | ||||||
13 | order of protection.
The additional fine shall be imposed | ||||||
14 | for each violation of this Section.
| ||||||
15 | (Source: P.A. 96-1551, eff. 7-1-11; 97-294, eff. 1-1-12; | ||||||
16 | 97-1150, eff. 1-25-13.)
| ||||||
17 | Section 5-30. The Probate Act of 1975 is amended by | ||||||
18 | changing Section 11-7.1 as follows:
| ||||||
19 | (755 ILCS 5/11-7.1) (from Ch. 110 1/2, par. 11-7.1)
| ||||||
20 | Sec. 11-7.1. Parenting time
Visitation rights .
| ||||||
21 | (a) Whenever both natural or adoptive parents of a minor | ||||||
22 | are deceased,
an allocation of parenting time
visitation rights
| ||||||
23 | shall be granted to the grandparents of the
minor who are the | ||||||
24 | parents of the minor's legal parents unless it is shown
that |
| |||||||
| |||||||
1 | such parenting time
visitation would be detrimental to the best | ||||||
2 | interests and welfare
of the minor. In the discretion of the | ||||||
3 | court, reasonable parenting time
visitation rights
may be | ||||||
4 | granted to any other relative of the minor or other person | ||||||
5 | having an
interest in the welfare of the child. However, the | ||||||
6 | court shall not grant
parenting time
visitation privileges to | ||||||
7 | any person who otherwise might have parenting time
visitation
| ||||||
8 | privileges under this Section where the minor has been adopted | ||||||
9 | subsequent
to the death of both his legal parents except where | ||||||
10 | such adoption is by a
close relative. For the purpose of this | ||||||
11 | Section, "close relative" shall
include, but not be limited to, | ||||||
12 | a grandparent, aunt, uncle, first cousin,
or adult brother or | ||||||
13 | sister.
| ||||||
14 | Where such adoption is by a close relative, the court shall | ||||||
15 | not grant
parenting time
visitation privileges under this | ||||||
16 | Section unless the petitioner alleges and
proves that he or she | ||||||
17 | has been unreasonably denied parenting time
visitation with the
| ||||||
18 | child. The court may grant reasonable parenting time
visitation | ||||||
19 | privileges upon finding
that such parenting time
visitation
| ||||||
20 | would be in the best interest of the child.
| ||||||
21 | An order denying parenting time
visitation rights to | ||||||
22 | grandparents of the minor shall be
in writing and shall state | ||||||
23 | the reasons for denial. An order denying parenting time
| ||||||
24 | visitation
rights is a final order for purposes of appeal.
| ||||||
25 | (b) Unless the court determines, after considering all | ||||||
26 | relevant factors,
including but not limited to those set forth |
| |||||||
| |||||||
1 | in Section 602.7
602(a) of the Illinois
Marriage and | ||||||
2 | Dissolution of Marriage Act, that it would be in the best
| ||||||
3 | interests of the child to allow parenting time
visitation , the | ||||||
4 | court shall not enter an order
providing parenting time
| ||||||
5 | visitation rights and pursuant to a motion to modify parenting | ||||||
6 | time
visitation
brought under Section 610.5
607(f) of the | ||||||
7 | Illinois Marriage and Dissolution of
Marriage Act shall revoke | ||||||
8 | parenting time
visitation rights previously granted to any | ||||||
9 | person
who would otherwise be entitled to petition for | ||||||
10 | parenting time
visitation rights under
this Section who has | ||||||
11 | been convicted of first degree murder of the parent,
| ||||||
12 | grandparent, great-grandparent, or sibling of the child who is | ||||||
13 | the subject of
the order. Until an order is entered pursuant to | ||||||
14 | this subsection, no person
shall visit, with the child present, | ||||||
15 | a person who has been convicted of first
degree murder of the | ||||||
16 | parent, grandparent, great-grandparent, or sibling of the
| ||||||
17 | child without the consent of the child's parent, other than a | ||||||
18 | parent convicted
of first degree murder as set forth herein, or | ||||||
19 | legal guardian.
| ||||||
20 | (Source: P.A. 90-801, eff. 6-1-99.)".
|