HB2330eng 98TH GENERAL ASSEMBLY

HB2330 Engrossed LRB098 10536 DRJ 40774 b

AN ACT concerning public aid.

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

Section 5. The Illinois Public Aid Code is amended by adding Section 10-12.5 as follows:

(305 ILCS 5/10-12.5 new)

Sec. 10-12.5. Suspension of child support during a period of incarceration.

(a) During any period of time in which the person owing a duty of support is committed to the custody of the Department of Corrections or the Department of Juvenile Justice, an obligation to pay child support is suspended by operation of law, but not until 60 days after the custodial parent receives notice and an opportunity to request a termination or modification of the suspension of the support obligation in accordance with subsection (c) of this Section. If the custodial parent requests that the suspension or prohibition of the support obligation be terminated or modified and the court terminates or modifies the suspension of the support obligation, or if the parties have otherwise agreed in a written agreement set forth in a court or administrative order for support, then the child support obligation shall not be suspended and if the non-custodial parent wishes to obtain a modification, he or she must petition for a modification of support in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act. The Department may provide, by rule, for notice to the custodial parent describing the custodial parent's rights regarding a prospective modification in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act.

If a non-custodial parent receives a settlement, claim, inheritance, lottery prize award, or other lump sum or periodic income of $500 or more a month or $5,000 or more as a one-time lump sum, during a period in which his or her child support obligation is suspended pursuant to this Code, the non-custodial parent shall notify the custodial parent, and in IV-D cases also notify the Department, within 7 days of receiving or becoming aware that he or she is entitled to receive this income. If the custodial parent wishes to obtain a modification based on this income, he or she must petition for a modification of support in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act.

(b) Any period of incarceration of a parent obligated to pay child support shall not be considered a period of voluntary unemployment. In the case of an incarcerated parent obligated to pay child support greater than $0 whose period of incarceration is greater than one year and whose period of incarceration begins on or after July 1, 2014, the Department shall:

(1) temporarily suspend any support obligation of the parent and the enforcement of any support obligation of the parent existing prior to the period of incarceration; and

(2) temporarily prohibit the accrual of any interest on any support obligation of the parent existing prior to the period of incarceration during such period.

The temporary suspension of the child support obligation and of the accrual of interest on any support obligation of the parent existing prior to the period of incarceration shall end and both support and accrual of interest on any pre-existing unpaid obligation shall resume upon the first charging period to occur after the obligated parent's release from incarceration. Unless the terms of the support obligation have been otherwise modified, the support terms shall resume at the same level as prior to the temporary suspension.

(c) Provided the Department is advised or given notice of the obligated parent's incarceration for a period to exceed one year beginning after July 1, 2014, the Department, for cases enrolled in the Child Support Enforcement Program established by Title IV-D of the Social Security Act, or the noncustodial parent or his or her representative in all other cases, shall provide both parties with:

(1) notice of any suspension or review, adjustment, or enforcement of a support obligation and of any prohibition on interest accrual on such obligation that is imposed in accordance with paragraphs (1) and (2) of subsection (b); and

(2) an opportunity to request that the suspension or prohibition be terminated or modified on the basis that the noncustodial parent has sufficient income or resources to continue payment of the support obligation during the noncustodial parent's period of incarceration.

(d) The Department shall not be liable for failing to act upon the provisions established under paragraphs (1) and (2) of subsection (b) if the Department has not been advised of the obligated parent's incarceration or if the Department has in place proper procedures for considering an obligated parent's incarceration when setting and modifying child support obligations and follows those procedures routinely.

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Section 510 as follows:

(750 ILCS 5/510) (from Ch. 40, par. 510)

Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.

(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. An order for child support may be modified as follows:

(1) upon a showing of a substantial change in circumstances, including incarceration prior to July 1, 2014 or for a period of incarceration of less than one year; and

(2) without the necessity of showing a substantial change in circumstances, as follows:

(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or

(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child's health care needs.

The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child support enforcement services from the Department of Healthcare and Family Services under Article X of the Illinois Public Aid Code, and only when at least 36 months have elapsed since the order for child support was entered or last modified.

(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

(9) any other factor that the court expressly finds to be just and equitable.

(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.

(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. Any obligation of a payor party for premium payments respecting insurance on such party's life imposed under subsection (f) of Section 504 is also terminated on the occurrence of any of the foregoing events, unless otherwise agreed by the parties. Any termination of an obligation for maintenance as a result of the death of the payor party, however, shall be inapplicable to any right of the other party or such other party's designee to receive a death benefit under such insurance on the payor party's life.

(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.

(d-5) During any period of time in which the person owing a duty of support is committed to the custody of the Department of Corrections or the Department of Juvenile Justice, an obligation to pay child support is suspended by operation of law, but not until 60 days after the custodial parent receives notice and an opportunity to request a termination or modification of the suspension of the support obligation in accordance with subsection (d-7) of this Section. If the custodial parent requests that the suspension or prohibition of the support obligation be terminated or modified and the court terminates or modifies the suspension of the support obligation, or if the parties have otherwise agreed in a written agreement set forth in the judgment or otherwise approved by the court, then the child support obligation shall not be suspended and if the non-custodial parent wishes to obtain a modification, he or she must petition for a modification of support in accordance with this Section. The Department of Healthcare and Family Services may provide, by rule, for notice to the custodial parent describing the custodial parent's rights regarding a prospective modification in accordance with this Section.

If a non-custodial parent receives a settlement, claim, inheritance, lottery prize award, or other lump sum or periodic income of $500 or more a month or $5,000 or more as a one-time lump sum, during a period in which his or her child support obligation is suspended pursuant to Section 10-12.5 of the Illinois Public Aid Code, the non-custodial parent shall notify the custodial parent, and in IV-D cases also notify the Department of Healthcare and Family Services, within 7 days of receiving or becoming aware that he or she is entitled to receive this income. If the custodial parent wishes to obtain a modification based on this income, he or she must petition for a modification of support in accordance with this Section.

(d-6) The State shall not consider any period of incarceration of such parent as a period of voluntary unemployment that disqualifies the parent from obtaining a modification of the support obligation consistent with the parent's ability to pay child support. In the case of an incarcerated parent the State shall:

(1) temporarily suspend any support obligation of the parent and the enforcement of any support obligation of the parent existing prior to the period of incarceration; and

(2) temporarily prohibit the accrual of any interest on any support obligation of the parent existing prior to the period of incarceration during such period.

(d-7) The Department of Healthcare and Family Services, for cases enrolled in the Child Support Enforcement Program established by Title IV-D of the Social Security Act, or the noncustodial parent or his or her representative in all other cases, shall provide a custodial parent with:

(1) notice of any suspension or review, adjustment, or enforcement of a support obligation and notice of any prohibition on the accrual of interest on the support obligation that is imposed in accordance with paragraphs (1) and (2) of subsection (d-6); and

(2) an opportunity to request that the suspension or prohibition be terminated or modified on the basis that the noncustodial parent has sufficient income or resources to continue payment of the support obligation during the noncustodial parent's period of incarceration.

(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.

(f) A petition to modify or terminate child support, custody, or visitation shall not delay any child support enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited to, a petition for a rule to show cause, for non-wage garnishment, or for a restraining order.

(g) The Department of Healthcare and Family Services and the Department of Corrections shall share relevant data and collaborate on the facilitation of identification of incarcerated parents eligible for either temporary suspension of a child support obligation or modification of a child support obligation and shall provide relevant information and assistance to incarcerated parents eligible for modification of support.

(h) The crime for which the incarcerated parent was convicted, or the prosecution of the incarcerated parent for that crime by a legal representative of the Department of Healthcare and Family Services for cases enrolled in the Child Support Enforcement Program established by Title IV-D of the Social Security Act, shall not disqualify the incarcerated parent from consideration of modification of a child support obligation, nor shall the action of the Department's legal representative to bring forth the modification request for consideration be considered a conflict of interest for the prosecuting office, except in cases where the crime was committed to avoid a child support obligation or was committed against a child of the obligated parent or the other parent.

(Source: P.A. 97-608, eff. 1-1-12.)