101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1137

 

Introduced 2/5/2019, by Sen. Neil Anderson

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/504  from Ch. 40, par. 504

    Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that notwithstanding any other provision of law, federal veterans' disability benefits received by a party shall not be considered to be income of that party for purposes of any maintenance determination. Provides that the court may not require that a party use federal veterans' disability benefits to pay maintenance.


LRB101 07765 LNS 52814 b

 

 

A BILL FOR

 

SB1137LRB101 07765 LNS 52814 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Section 504 as follows:
 
6    (750 ILCS 5/504)  (from Ch. 40, par. 504)
7    Sec. 504. Maintenance.
8    (a) Entitlement to maintenance. In a proceeding for
9dissolution of marriage, legal separation, declaration of
10invalidity of marriage, or dissolution of a civil union, a
11proceeding for maintenance following a legal separation or
12dissolution of the marriage or civil union by a court which
13lacked personal jurisdiction over the absent spouse, a
14proceeding for modification of a previous order for maintenance
15under Section 510 of this Act, or any proceeding authorized
16under Section 501 of this Act, the court may grant a
17maintenance award for either spouse in amounts and for periods
18of time as the court deems just, without regard to marital
19misconduct, and the maintenance may be paid from the income or
20property of the other spouse. The court shall first make a
21finding as to whether a maintenance award is appropriate, after
22consideration of all relevant factors, including:
23        (1) the income and property of each party, including

 

 

SB1137- 2 -LRB101 07765 LNS 52814 b

1    marital property apportioned and non-marital property
2    assigned to the party seeking maintenance as well as all
3    financial obligations imposed on the parties as a result of
4    the dissolution of marriage;
5        (2) the needs of each party;
6        (3) the realistic present and future earning capacity
7    of each party;
8        (4) any impairment of the present and future earning
9    capacity of the party seeking maintenance due to that party
10    devoting time to domestic duties or having forgone or
11    delayed education, training, employment, or career
12    opportunities due to the marriage;
13        (5) any impairment of the realistic present or future
14    earning capacity of the party against whom maintenance is
15    sought;
16        (6) the time necessary to enable the party seeking
17    maintenance to acquire appropriate education, training,
18    and employment, and whether that party is able to support
19    himself or herself through appropriate employment;
20        (6.1) the effect of any parental responsibility
21    arrangements and its effect on a party's ability to seek or
22    maintain employment;
23        (7) the standard of living established during the
24    marriage;
25        (8) the duration of the marriage;
26        (9) the age, health, station, occupation, amount and

 

 

SB1137- 3 -LRB101 07765 LNS 52814 b

1    sources of income, vocational skills, employability,
2    estate, liabilities, and the needs of each of the parties;
3        (10) all sources of public and private income
4    including, without limitation, disability and retirement
5    income;
6        (11) the tax consequences to each party;
7        (12) contributions and services by the party seeking
8    maintenance to the education, training, career or career
9    potential, or license of the other spouse;
10        (13) any valid agreement of the parties; and
11        (14) any other factor that the court expressly finds to
12    be just and equitable.
13    (b) (Blank).
14    (b-1) Amount and duration of maintenance. Unless the court
15finds that a maintenance award is appropriate, it shall bar
16maintenance as to the party seeking maintenance regardless of
17the length of the marriage at the time the action was
18commenced. Only if the court finds that a maintenance award is
19appropriate, the court shall order guideline maintenance in
20accordance with paragraph (1) or non-guideline maintenance in
21accordance with paragraph (2) of this subsection (b-1). If the
22application of guideline maintenance results in a combined
23maintenance and child support obligation that exceeds 50% of
24the payor's net income, the court may determine non-guideline
25maintenance in accordance with paragraph (2) of this subsection
26(b-1), non-guideline child support in accordance with

 

 

SB1137- 4 -LRB101 07765 LNS 52814 b

1paragraph (3.4) of subsection (a) of Section 505, or both.
2        (1) Maintenance award in accordance with guidelines.
3    If the combined gross annual income of the parties is less
4    than $500,000 and the payor has no obligation to pay child
5    support or maintenance or both from a prior relationship,
6    maintenance payable after the date the parties' marriage is
7    dissolved shall be in accordance with subparagraphs (A) and
8    (B) of this paragraph (1), unless the court makes a finding
9    that the application of the guidelines would be
10    inappropriate.
11            (A) The amount of maintenance under this paragraph
12        (1) shall be calculated by taking 33 1/3% of the
13        payor's net annual income minus 25% of the payee's net
14        annual income. The amount calculated as maintenance,
15        however, when added to the net income of the payee,
16        shall not result in the payee receiving an amount that
17        is in excess of 40% of the combined net income of the
18        parties.
19            (A-1) Modification of maintenance orders entered
20        before January 1, 2019 that are and continue to be
21        eligible for inclusion in the gross income of the payee
22        for federal income tax purposes and deductible by the
23        payor shall be calculated by taking 30% of the payor's
24        gross annual income minus 20% of the payee's gross
25        annual income, unless both parties expressly provide
26        otherwise in the modification order. The amount

 

 

SB1137- 5 -LRB101 07765 LNS 52814 b

1        calculated as maintenance, however, when added to the
2        gross income of the payee, may not result in the payee
3        receiving an amount that is in excess of 40% of the
4        combined gross income of the parties.
5            (B) The duration of an award under this paragraph
6        (1) shall be calculated by multiplying the length of
7        the marriage at the time the action was commenced by
8        whichever of the following factors applies: less than 5
9        years (.20); 5 years or more but less than 6 years
10        (.24); 6 years or more but less than 7 years (.28); 7
11        years or more but less than 8 years (.32); 8 years or
12        more but less than 9 years (.36); 9 years or more but
13        less than 10 years (.40); 10 years or more but less
14        than 11 years (.44); 11 years or more but less than 12
15        years (.48); 12 years or more but less than 13 years
16        (.52); 13 years or more but less than 14 years (.56);
17        14 years or more but less than 15 years (.60); 15 years
18        or more but less than 16 years (.64); 16 years or more
19        but less than 17 years (.68); 17 years or more but less
20        than 18 years (.72); 18 years or more but less than 19
21        years (.76); 19 years or more but less than 20 years
22        (.80). For a marriage of 20 or more years, the court,
23        in its discretion, shall order maintenance for a period
24        equal to the length of the marriage or for an
25        indefinite term.
26        (1.5) In the discretion of the court, any term of

 

 

SB1137- 6 -LRB101 07765 LNS 52814 b

1    temporary maintenance paid by court order under Section 501
2    may be a corresponding credit to the duration of
3    maintenance set forth in subparagraph (b-1)(1)(B).
4        (2) Maintenance award not in accordance with
5    guidelines. Any non-guidelines award of maintenance shall
6    be made after the court's consideration of all relevant
7    factors set forth in subsection (a) of this Section.
8    (b-2) Findings. In each case involving the issue of
9maintenance, the court shall make specific findings of fact, as
10follows:
11        (1) the court shall state its reasoning for awarding or
12    not awarding maintenance and shall include references to
13    each relevant factor set forth in subsection (a) of this
14    Section;
15        (2) if the court deviates from applicable guidelines
16    under paragraph (1) of subsection (b-1), it shall state in
17    its findings the amount of maintenance (if determinable) or
18    duration that would have been required under the guidelines
19    and the reasoning for any variance from the guidelines; and
20        (3) the court shall state whether the maintenance is
21    fixed-term, indefinite, reviewable, or reserved by the
22    court.
23    (b-3) Gross income. For purposes of this Section, the term
24"gross income" means all income from all sources, within the
25scope of that phrase in Section 505 of this Act, except
26maintenance payments in the pending proceedings shall not be

 

 

SB1137- 7 -LRB101 07765 LNS 52814 b

1included.
2    (b-3.5) Net income. As used in this Section, "net income"
3has the meaning provided in Section 505 of this Act, except
4maintenance payments in the pending proceedings shall not be
5included.
6    (b-4) Modification of maintenance orders entered before
7January 1, 2019. For any order for maintenance or unallocated
8maintenance and child support entered before January 1, 2019
9that is modified after December 31, 2018, payments thereunder
10shall continue to retain the same tax treatment for federal
11income tax purposes unless both parties expressly agree
12otherwise and the agreement is included in the modification
13order.
14    (b-4.5) Maintenance designation.
15        (1) Fixed-term maintenance. If a court grants
16    maintenance for a fixed term, the court shall designate the
17    termination of the period during which this maintenance is
18    to be paid. Maintenance is barred after the end of the
19    period during which fixed-term maintenance is to be paid.
20        (2) Indefinite maintenance. If a court grants
21    maintenance for an indefinite term, the court shall not
22    designate a termination date. Indefinite maintenance shall
23    continue until modification or termination under Section
24    510.
25        (3) Reviewable maintenance. If a court grants
26    maintenance for a specific term with a review, the court

 

 

SB1137- 8 -LRB101 07765 LNS 52814 b

1    shall designate the period of the specific term and state
2    that the maintenance is reviewable. Upon review, the court
3    shall make a finding in accordance with subdivision (b-8)
4    of this Section, unless the maintenance is modified or
5    terminated under Section 510.
6    (b-5) Interest on maintenance. Any maintenance obligation
7including any unallocated maintenance and child support
8obligation, or any portion of any support obligation, that
9becomes due and remains unpaid shall accrue simple interest as
10set forth in Section 505 of this Act.
11    (b-7) Maintenance judgments. Any new or existing
12maintenance order including any unallocated maintenance and
13child support order entered by the court under this Section
14shall be deemed to be a series of judgments against the person
15obligated to pay support thereunder. Each such judgment to be
16in the amount of each payment or installment of support and
17each such judgment to be deemed entered as of the date the
18corresponding payment or installment becomes due under the
19terms of the support order, except no judgment shall arise as
20to any installment coming due after the termination of
21maintenance as provided by Section 510 of the Illinois Marriage
22and Dissolution of Marriage Act or the provisions of any order
23for maintenance. Each such judgment shall have the full force,
24effect and attributes of any other judgment of this State,
25including the ability to be enforced. Notwithstanding any other
26State or local law to the contrary, a lien arises by operation

 

 

SB1137- 9 -LRB101 07765 LNS 52814 b

1of law against the real and personal property of the obligor
2for each installment of overdue support owed by the obligor.
3    (b-8) Review of maintenance. Upon review of any previously
4ordered maintenance award, the court may extend maintenance for
5further review, extend maintenance for a fixed non-modifiable
6term, extend maintenance for an indefinite term, or permanently
7terminate maintenance in accordance with subdivision
8(b-1)(1)(A) of this Section.
9    (c) Maintenance during an appeal. The court may grant and
10enforce the payment of maintenance during the pendency of an
11appeal as the court shall deem reasonable and proper.
12    (d) Maintenance during imprisonment. No maintenance shall
13accrue during the period in which a party is imprisoned for
14failure to comply with the court's order for the payment of
15such maintenance.
16    (e) Fees when maintenance is paid through the clerk. When
17maintenance is to be paid through the clerk of the court in a
18county of 500,000 inhabitants or less, the order shall direct
19the obligor to pay to the clerk, in addition to the maintenance
20payments, all fees imposed by the county board under paragraph
21(4) of subsection (bb) of Section 27.1a of the Clerks of Courts
22Act. When maintenance is to be paid through the clerk of the
23court in a county of more than 500,000 but less than 3,000,000
24inhabitants, the order shall direct the obligor to pay to the
25clerk, in addition to the maintenance payments, all fees
26imposed by the county board under paragraph (4) of subsection

 

 

SB1137- 10 -LRB101 07765 LNS 52814 b

1(bb) of Section 27.2 of the Clerks of Courts Act. Unless paid
2in cash or pursuant to an order for withholding, the payment of
3the fee shall be by a separate instrument from the support
4payment and shall be made to the order of the Clerk.
5    (f) Maintenance secured by life insurance. An award ordered
6by a court upon entry of a dissolution judgment or upon entry
7of an award of maintenance following a reservation of
8maintenance in a dissolution judgment may be reasonably
9secured, in whole or in part, by life insurance on the payor's
10life on terms as to which the parties agree or, if the parties
11do not agree, on such terms determined by the court, subject to
12the following:
13        (1) With respect to existing life insurance, provided
14    the court is apprised through evidence, stipulation, or
15    otherwise as to level of death benefits, premium, and other
16    relevant data and makes findings relative thereto, the
17    court may allocate death benefits, the right to assign
18    death benefits, or the obligation for future premium
19    payments between the parties as it deems just.
20        (2) To the extent the court determines that its award
21    should be secured, in whole or in part, by new life
22    insurance on the payor's life, the court may only order:
23            (i) that the payor cooperate on all appropriate
24        steps for the payee to obtain such new life insurance;
25        and
26            (ii) that the payee, at his or her sole option and

 

 

SB1137- 11 -LRB101 07765 LNS 52814 b

1        expense, may obtain such new life insurance on the
2        payor's life up to a maximum level of death benefit
3        coverage, or descending death benefit coverage, as is
4        set by the court, such level not to exceed a reasonable
5        amount in light of the court's award, with the payee or
6        the payee's designee being the beneficiary of such life
7        insurance.
8    In determining the maximum level of death benefit coverage,
9    the court shall take into account all relevant facts and
10    circumstances, including the impact on access to life
11    insurance by the maintenance payor. If in resolving any
12    issues under paragraph (2) of this subsection (f) a court
13    reviews any submitted or proposed application for new
14    insurance on the life of a maintenance payor, the review
15    shall be in camera.
16        (3) (Blank).
17    (g) Federal veterans' benefits. Notwithstanding any other
18provision of law, federal veterans' disability benefits
19received by a party shall not be considered to be income of
20that party for purposes of any maintenance determination under
21this Section. The court may not require that a party use
22federal veterans' disability benefits to pay maintenance.
23(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-520,
24eff. 1-1-18 (see Section 5 of P.A. 100-565 for the effective
25date of P.A. 100-520); 100-923, eff. 1-1-19.)