Illinois General Assembly - Full Text of HB3484
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Full Text of HB3484  102nd General Assembly

HB3484enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB3484 EnrolledLRB102 13864 LNS 19215 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 501 as follows:
 
6    (750 ILCS 5/501)  (from Ch. 40, par. 501)
7    Sec. 501. Temporary relief. In all proceedings under this
8Act, temporary relief shall be as follows:
9    (a) Either party may petition or move for:
10        (1) temporary maintenance or temporary support of a
11    child of the marriage entitled to support, accompanied by
12    an affidavit as to the factual basis for the relief
13    requested. One form of financial affidavit, as determined
14    by the Supreme Court, shall be used statewide. The
15    financial affidavit shall be supported by documentary
16    evidence including, but not limited to, income tax
17    returns, pay stubs, and banking statements. Unless the
18    court otherwise directs, any affidavit or supporting
19    documentary evidence submitted pursuant to this paragraph
20    shall not be made part of the public record of the
21    proceedings but shall be available to the court or an
22    appellate court in which the proceedings are subject to
23    review, to the parties, their attorneys, and such other

 

 

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1    persons as the court may direct. Upon motion of a party, a
2    court may hold a hearing to determine whether and why
3    there is a disparity between a party's sworn affidavit and
4    the supporting documentation. If a party intentionally or
5    recklessly files an inaccurate or misleading financial
6    affidavit, the court shall impose significant penalties
7    and sanctions including, but not limited to, costs and
8    attorney's fees;
9        (2) a temporary restraining order or preliminary
10    injunction, accompanied by affidavit showing a factual
11    basis for any of the following relief:
12            (i) restraining any person from transferring,
13        encumbering, concealing or otherwise disposing of any
14        property except in the usual course of business or for
15        the necessities of life, and, if so restrained,
16        requiring him to notify the moving party and his
17        attorney of any proposed extraordinary expenditures
18        made after the order is issued; however, an order need
19        not include an exception for transferring,
20        encumbering, or otherwise disposing of property in the
21        usual course of business or for the necessities of
22        life if the court enters appropriate orders that
23        enable the parties to pay their necessary personal and
24        business expenses including, but not limited to,
25        appropriate professionals to assist the court pursuant
26        to subsection (l) of Section 503 to administer the

 

 

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1        payment and accounting of such living and business
2        expenses;
3            (ii) enjoining a party from removing a child from
4        the jurisdiction of the court for more than 14 days;
5            (iii) enjoining a party from striking or
6        interfering with the personal liberty of the other
7        party or of any child; or
8            (iv) providing other injunctive relief proper in
9        the circumstances; or
10        (3) other appropriate temporary relief including, in
11    the discretion of the court, ordering the purchase or sale
12    of assets and requiring that a party or parties borrow
13    funds in the appropriate circumstances.
14    Issues concerning temporary maintenance or temporary
15support of a child entitled to support shall be dealt with on a
16summary basis based on allocated parenting time, financial
17affidavits, tax returns, pay stubs, banking statements, and
18other relevant documentation, except an evidentiary hearing
19may be held upon a showing of good cause. If a party
20intentionally or recklessly files an inaccurate or misleading
21financial affidavit, the court shall impose significant
22penalties and sanctions including, but not limited to, costs
23and attorney's fees resulting from the improper
24representation.
25    (b) The court may issue a temporary restraining order
26without requiring notice to the other party only if it finds,

 

 

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1on the basis of the moving affidavit or other evidence, that
2irreparable injury will result to the moving party if no order
3is issued until the time for responding has elapsed.
4    (c) A response hereunder may be filed within 21 days after
5service of notice of motion or at the time specified in the
6temporary restraining order.
7    (c-1) As used in this subsection (c-1), "interim
8attorney's fees and costs" means attorney's fees and costs,
9including an allowance from the other party for a retainer fee
10to obtain an attorney, assessed from time to time while a case
11is pending, in favor of the petitioning party's current
12counsel, for reasonable fees and costs either already incurred
13or to be incurred, and "interim award" means an award of
14interim attorney's fees and costs, including an allowance from
15the other party for a retainer fee to obtain an attorney.
16Interim awards shall be governed by the following:
17        (1) Except for good cause shown, a proceeding for (or
18    relating to) interim attorney's fees and costs in a
19    pre-judgment dissolution proceeding shall be
20    nonevidentiary and summary in nature. All hearings for or
21    relating to interim attorney's fees and costs under this
22    subsection shall be scheduled expeditiously by the court.
23    When a party files a petition for interim attorney's fees
24    and costs supported by one or more affidavits that
25    delineate relevant factors, the court (or a hearing
26    officer) shall assess an interim award after affording the

 

 

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1    opposing party a reasonable opportunity to file a
2    responsive pleading. A responsive pleading shall set out
3    the amount of each retainer or other payment or payments,
4    or both, previously paid to the responding party's counsel
5    by or on behalf of the responding party. A responsive
6    pleading shall include costs incurred, and shall indicate
7    whether the costs are paid or unpaid. In assessing an
8    interim award, the court shall consider all relevant
9    factors, as presented, that appear reasonable and
10    necessary, including to the extent applicable:
11            (A) the income and property of each party,
12        including alleged marital property within the sole
13        control of one party and alleged non-marital property
14        within access to a party;
15            (B) the needs of each party;
16            (C) the realistic earning capacity of each party;
17            (D) any impairment to present earning capacity of
18        either party, including age and physical and emotional
19        health;
20            (E) the standard of living established during the
21        marriage;
22            (F) the degree of complexity of the issues,
23        including allocation of parental responsibility,
24        valuation or division (or both) of closely held
25        businesses, and tax planning, as well as reasonable
26        needs for expert investigations or expert witnesses,

 

 

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1        or both;
2            (G) each party's access to relevant information;
3            (H) the amount of the payment or payments made or
4        reasonably expected to be made to the attorney for the
5        other party; and
6            (I) any other factor that the court expressly
7        finds to be just and equitable.
8        (1.5) A petition for interim fees that seeks an order
9    for the payment of an initial retainer to retain an
10    attorney shall have attached to it an affidavit from the
11    attorney to be retained that the attorney has been
12    contacted by the moving party and the attorney has agreed
13    to enter an appearance if the court grants the relief
14    requested, together with a certificate from the moving
15    party that the interim fees granted will only be used by
16    the moving party to retain the attorney. Any interim fees
17    granted pursuant to this paragraph shall be paid directly
18    to the identified attorney.
19        (2) Any assessment of an interim award (including one
20    pursuant to an agreed order) shall be without prejudice to
21    any final allocation and without prejudice as to any claim
22    or right of either party or any counsel of record at the
23    time of the award. Any such claim or right may be presented
24    by the appropriate party or counsel at a hearing on
25    contribution under subsection (j) of Section 503 or a
26    hearing on counsel's fees under subsection (c) of Section

 

 

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1    508. Unless otherwise ordered by the court at the final
2    hearing between the parties or in a hearing under
3    subsection (j) of Section 503 or subsection (c) of Section
4    508, interim awards, as well as the aggregate of all other
5    payments by each party to counsel and related payments to
6    third parties, shall be deemed to have been advances from
7    the parties' marital estate. Any portion of any interim
8    award constituting an overpayment shall be remitted back
9    to the appropriate party or parties, or, alternatively, to
10    successor counsel, as the court determines and directs,
11    after notice in a form designated by the Supreme Court. An
12    order for the award of interim attorney's fees shall be a
13    standardized form order and labeled "Interim Fee Award
14    Order".
15        (3) In any proceeding under this subsection (c-1), the
16    court (or hearing officer) shall assess an interim award
17    against an opposing party in an amount necessary to enable
18    the petitioning party to participate adequately in the
19    litigation, upon findings that the party from whom
20    attorney's fees and costs are sought has the financial
21    ability to pay reasonable amounts and that the party
22    seeking attorney's fees and costs lacks sufficient access
23    to assets or income to pay reasonable amounts. In
24    determining an award, the court shall consider whether
25    adequate participation in the litigation requires
26    expenditure of more fees and costs for a party that is not

 

 

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1    in control of assets or relevant information. Except for
2    good cause shown, an interim award shall not be less than
3    payments made or reasonably expected to be made to the
4    counsel for the other party. If the court finds that both
5    parties lack financial ability or access to assets or
6    income for reasonable attorney's fees and costs, the court
7    (or hearing officer) shall enter an order that allocates
8    available funds for each party's counsel, including
9    retainers or interim payments, or both, previously paid,
10    in a manner that achieves substantial parity between the
11    parties.
12        (4) The changes to this Section 501 made by this
13    amendatory Act of 1996 apply to cases pending on or after
14    June 1, 1997, except as otherwise provided in Section 508.
15    (c-2) Allocation of use of marital residence. Where there
16is on file a verified complaint or verified petition seeking
17temporary eviction from the marital residence, the court may,
18during the pendency of the proceeding, only in cases where the
19physical or mental well-being of either spouse or his or her
20children is jeopardized by occupancy of the marital residence
21by both spouses, and only upon due notice and full hearing,
22unless waived by the court on good cause shown, enter orders
23granting the exclusive possession of the marital residence to
24either spouse, by eviction from, or restoration of, the
25marital residence, until the final determination of the cause
26pursuant to the factors listed in Section 602.7 of this Act. No

 

 

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1such order shall in any manner affect any estate in homestead
2property of either party. In entering orders under this
3subsection (c-2), the court shall balance hardships to the
4parties.
5    (d) A temporary order entered under this Section:
6        (1) does not prejudice the rights of the parties or
7    the child which are to be adjudicated at subsequent
8    hearings in the proceeding;
9        (2) may be revoked or modified before final judgment,
10    on a showing by affidavit and upon hearing; and
11        (3) terminates when the final judgment is entered or
12    when the petition for dissolution of marriage or legal
13    separation or declaration of invalidity of marriage is
14    dismissed.
15    (e) The fees or costs of mediation shall be borne by the
16parties and may be assessed by the court as it deems equitable
17without prejudice and are subject to reallocation at the
18conclusion of the case.
19    (f) Companion animals. Either party may petition or move
20for the temporary allocation of sole or joint possession of
21and responsibility for a companion animal jointly owned by the
22parties. In issuing an order under this subsection, the court
23shall take into consideration the well-being of the companion
24animal. As used in this Section, "companion animal" does not
25include a service animal as defined in Section 2.01c of the
26Humane Care for Animals Act.

 

 

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1(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
2100-422, eff. 1-1-18.)