Full Text of HB0861 102nd General Assembly
HB0861eng 102ND GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Marriage and Dissolution of | 5 | | Marriage Act is amended by changing Sections 502 and 504 as | 6 | | follows:
| 7 | | (750 ILCS 5/502) (from Ch. 40, par. 502)
| 8 | | Sec. 502. Agreement. | 9 | | (a) To promote amicable settlement
of disputes between
| 10 | | parties to a marriage attendant upon the dissolution of their | 11 | | marriage,
the parties may enter
into an agreement containing | 12 | | provisions for
disposition of any
property owned by either of | 13 | | them, maintenance of either of them, support,
parental | 14 | | responsibility allocation
of their children, and support of | 15 | | their children as provided in Sections 513 and 513.5 after
the | 16 | | children attain majority. The parties may also enter into an | 17 | | agreement allocating the sole or joint ownership of or | 18 | | responsibility for a companion animal. As used in this | 19 | | Section, "companion animal" does not include a service animal | 20 | | as defined in Section 2.01c of the Humane Care for Animals Act. | 21 | | Any agreement pursuant to this Section must be in writing, | 22 | | except for good cause shown with the approval of the court, | 23 | | before proceeding to an oral prove up.
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| 1 | | (b) The terms of the agreement, except those providing for | 2 | | the support and parental responsibility allocation of | 3 | | children, are binding upon the court unless it finds, after
| 4 | | considering the economic circumstances of the parties and any | 5 | | other relevant evidence
produced by the parties, on their own | 6 | | motion or on request of the court,
that the
agreement is | 7 | | unconscionable. Any agreement or provision of an agreement | 8 | | regarding the disposition of maintenance is unconscionable if | 9 | | the obligor is the petitioner for an order of protection under | 10 | | the Illinois Domestic Violence Act of 1986 and the obligee is | 11 | | the respondent to the petition for the order of protection. | 12 | | The terms of the agreement incorporated into the judgment are | 13 | | binding if there is any conflict between the terms of the | 14 | | agreement and any testimony made at an uncontested prove-up | 15 | | hearing on the grounds or the substance of the agreement.
| 16 | | (c) If the court finds the agreement unconscionable,
it | 17 | | may request the parties to submit a revised agreement
or upon | 18 | | hearing, may make orders
for the disposition of property, | 19 | | maintenance, child support and other matters. If the agreement | 20 | | is unconscionable under subsection (b) due to an order of | 21 | | protection under the Illinois Domestic Violence Act of 1986, | 22 | | the court shall require the parties to submit a revised | 23 | | agreement, as it relates to the disposition of maintenance, or | 24 | | upon hearing, shall deny any order or provision of an order for | 25 | | the disposition of maintenance.
| 26 | | (d) Unless the agreement provides to the contrary, its
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| 1 | | terms shall be set forth
in the judgment, and the parties shall | 2 | | be ordered to perform under such
terms, or if the agreement
| 3 | | provides that its terms shall not be set forth in the judgment, | 4 | | the judgment shall
identify the agreement and state that the | 5 | | court has approved its terms.
| 6 | | (e) Terms of the agreement set forth in the judgment are | 7 | | enforceable by
all remedies available for enforcement
of a | 8 | | judgment, including contempt, and are enforceable as contract | 9 | | terms.
| 10 | | (f) Child support, support of children as provided in | 11 | | Sections 513 and 513.5 after
the children attain majority, and | 12 | | parental responsibility allocation of children may be modified | 13 | | upon a showing of a substantial change in circumstances. The | 14 | | parties may provide that maintenance is non-modifiable in | 15 | | amount, duration, or both. If the parties do not provide that | 16 | | maintenance is non-modifiable in amount, duration, or both, | 17 | | then those terms are modifiable upon a substantial change of | 18 | | circumstances. Property provisions of an agreement are never | 19 | | modifiable. The judgment may expressly preclude or limit | 20 | | modification of other terms set forth in the
judgment if the | 21 | | agreement so provides. Otherwise, terms
of an agreement
set | 22 | | forth in the judgment are automatically modified by | 23 | | modification of the judgment.
| 24 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 25 | | 100-422, eff. 1-1-18 .)
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| 1 | | (750 ILCS 5/504) (from Ch. 40, par. 504)
| 2 | | Sec. 504. Maintenance.
| 3 | | (a) Entitlement to maintenance. In a proceeding for | 4 | | dissolution of marriage, legal separation,
declaration of | 5 | | invalidity of marriage, or dissolution of a civil union, a | 6 | | proceeding for maintenance
following a legal separation or | 7 | | dissolution of the marriage or civil union by a court which | 8 | | lacked personal
jurisdiction over the absent spouse, a | 9 | | proceeding for modification of a previous order for | 10 | | maintenance under Section 510 of this Act, or any proceeding | 11 | | authorized under Section 501 of this Act, the court may grant a | 12 | | maintenance award for either spouse in amounts and for periods | 13 | | of
time as the court deems just, without regard to marital | 14 | | misconduct unless the marital misconduct involves an order of | 15 | | protection under the Illinois Domestic Violence Act of 1986 , | 16 | | and the maintenance may
be paid from the income or property of | 17 | | the other spouse. The court shall first make a finding as to | 18 | | whether a maintenance award is appropriate, after | 19 | | consideration
of all relevant factors, including:
| 20 | | (1) the income and property of each party, including | 21 | | marital property
apportioned and non-marital property | 22 | | assigned to the party seeking maintenance as well as all | 23 | | financial obligations imposed on the parties as a result | 24 | | of the dissolution of marriage;
| 25 | | (2) the needs of each party;
| 26 | | (3) the realistic present and future earning capacity |
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| 1 | | of each party;
| 2 | | (4) any impairment of the present and future earning | 3 | | capacity of the
party seeking maintenance due to that | 4 | | party devoting time to domestic
duties or having forgone | 5 | | or delayed education, training,
employment, or
career | 6 | | opportunities due to the marriage;
| 7 | | (5) any impairment of the realistic present or future | 8 | | earning capacity of the party against whom maintenance is | 9 | | sought; | 10 | | (6) the time necessary to enable the party seeking | 11 | | maintenance to
acquire appropriate education, training, | 12 | | and employment, and whether that
party is able to support | 13 | | himself or herself through appropriate employment;
| 14 | | (6.1) the effect of any parental responsibility | 15 | | arrangements and its effect on a party's ability to seek | 16 | | or maintain employment;
| 17 | | (7) the standard of living established during the | 18 | | marriage;
| 19 | | (8) the duration of the marriage;
| 20 | | (9) the age, health, station, occupation, amount and | 21 | | sources of income, vocational skills, employability, | 22 | | estate, liabilities, and the needs of each of the parties;
| 23 | | (10) all sources of public and private income | 24 | | including, without limitation, disability and retirement | 25 | | income; | 26 | | (11) the tax consequences to each party;
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| 1 | | (12) contributions and services by the party seeking | 2 | | maintenance to
the education, training, career or career | 3 | | potential, or license of the
other spouse;
| 4 | | (13) any valid agreement of the parties; and
| 5 | | (14) any other factor that the court expressly finds | 6 | | to be just and
equitable.
| 7 | | A court shall not grant a maintenance award to a spouse who | 8 | | is the respondent to a petition for an order of protection | 9 | | under the Illinois Domestic Violence Act of 1986 if the | 10 | | petitioner is granted an order of protection and is the | 11 | | intended obligor and the respondent is the intended obligee. | 12 | | (b) (Blank).
| 13 | | (b-1) Amount and duration of maintenance. Unless the court | 14 | | finds that a maintenance award is appropriate, it shall bar | 15 | | maintenance as to the party seeking maintenance regardless of | 16 | | the length of the marriage at the time the action was | 17 | | commenced. Only if the court finds that a maintenance award is | 18 | | appropriate, the court shall order guideline maintenance in | 19 | | accordance with paragraph (1) or non-guideline maintenance in | 20 | | accordance with paragraph (2) of this subsection (b-1). If the | 21 | | application of guideline maintenance results in a combined | 22 | | maintenance and child support obligation that exceeds 50% of | 23 | | the payor's net income, the court may determine non-guideline | 24 | | maintenance in accordance with paragraph (2) of this | 25 | | subsection (b-1), non-guideline child support in accordance | 26 | | with paragraph (3.4) of subsection (a) of Section 505, or |
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| 1 | | 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 | 7 | | is dissolved shall be in accordance with subparagraphs (A) | 8 | | and (B) of this paragraph (1), unless the court makes a | 9 | | finding 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 | 22 | | payee for federal income tax purposes and deductible | 23 | | by the payor shall be calculated by taking 30% of the | 24 | | payor's gross annual income minus 20% of the payee's | 25 | | gross annual income, unless both parties expressly | 26 | | provide otherwise in the modification order. The |
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| 1 | | amount calculated as maintenance, however, when added | 2 | | to the gross income of the payee, may not result in the | 3 | | payee receiving an amount that is in excess of 40% of | 4 | | the 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 | 9 | | 5 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 | 24 | | period 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 |
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| 1 | | temporary maintenance paid by court order under Section | 2 | | 501 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 | 9 | | maintenance, the court shall make specific findings of fact, | 10 | | as follows: | 11 | | (1) the court shall state its reasoning for awarding | 12 | | or not awarding maintenance and shall include references | 13 | | to each relevant factor set forth in subsection (a) of | 14 | | this 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) | 18 | | or duration that would have been required under the | 19 | | guidelines and the reasoning for any variance from the | 20 | | guidelines; and | 21 | | (3) the court shall state whether the maintenance is | 22 | | fixed-term, indefinite, reviewable, or reserved by the | 23 | | court. | 24 | | (b-3) Gross income. For purposes of this Section, the term | 25 | | "gross income" means all income from all sources, within the | 26 | | scope of that phrase in Section 505 of this Act, except |
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| 1 | | maintenance payments in the pending proceedings shall not be | 2 | | included. | 3 | | (b-3.5) Net income. As used in this Section, "net income" | 4 | | has the meaning provided in Section 505 of this Act, except | 5 | | maintenance payments in the pending proceedings shall not be | 6 | | included. | 7 | | (b-4) Modification of maintenance orders entered before | 8 | | January 1, 2019. For any order for maintenance or unallocated | 9 | | maintenance and child support entered before January 1, 2019 | 10 | | that is modified after December 31, 2018, payments thereunder | 11 | | shall continue to retain the same tax treatment for federal | 12 | | income tax purposes unless both parties expressly agree | 13 | | otherwise and the agreement is included in the modification | 14 | | order. | 15 | | (b-4.5) Maintenance designation. | 16 | | (1) Fixed-term maintenance. If a court grants | 17 | | maintenance for a fixed term, the court shall designate | 18 | | the termination of the period during which this | 19 | | maintenance is to be paid. Maintenance is barred after the | 20 | | end of the period during which fixed-term maintenance is | 21 | | to be paid. | 22 | | (2) Indefinite maintenance. If a court grants | 23 | | maintenance for an indefinite term, the court shall not | 24 | | designate a termination date. Indefinite maintenance shall | 25 | | continue until modification or termination under Section | 26 | | 510. |
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| 1 | | (3) Reviewable maintenance. If a court grants | 2 | | maintenance for a specific term with a review, the court | 3 | | shall designate the period of the specific term and state | 4 | | that the maintenance is reviewable. Upon review, the court | 5 | | shall make a finding in accordance with subdivision (b-8) | 6 | | of this Section, unless the maintenance is modified or | 7 | | terminated under Section 510. | 8 | | (b-5) Interest on maintenance. Any maintenance obligation | 9 | | including any unallocated maintenance and child support | 10 | | obligation, or any portion of any support obligation, that | 11 | | becomes due and remains unpaid shall accrue simple interest as | 12 | | set forth in Section 505 of this Act.
| 13 | | (b-7) Maintenance judgments. Any new or existing | 14 | | maintenance order including any unallocated maintenance and | 15 | | child support order entered by the court under this Section | 16 | | shall be deemed to be a series of judgments against the person | 17 | | obligated to pay support thereunder. Each such judgment to be | 18 | | in the amount of each payment or installment of support and | 19 | | each such judgment to be deemed entered as of the date the | 20 | | corresponding payment or installment becomes due under the | 21 | | terms of the support order, except no judgment shall arise as | 22 | | to any installment coming due after the termination of | 23 | | maintenance as provided by Section 510 of the Illinois | 24 | | Marriage and Dissolution of Marriage Act or the provisions of | 25 | | any order for maintenance. Each such judgment shall have the | 26 | | full force, effect and attributes of any other judgment of |
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| 1 | | this State, including the ability to be enforced. | 2 | | Notwithstanding any other State or local law to the contrary, | 3 | | a lien arises by operation of law against the real and personal | 4 | | property of the obligor for each installment of overdue | 5 | | support owed by the obligor. | 6 | | (b-8) Review of maintenance. Upon review of any previously | 7 | | ordered maintenance award, the court may extend maintenance | 8 | | for further review, extend maintenance for a fixed | 9 | | non-modifiable term, extend maintenance for an indefinite | 10 | | term, or permanently terminate maintenance in accordance with | 11 | | subdivision (b-1)(1)(A) of this Section. | 12 | | (c) Maintenance during an appeal. The court may grant and | 13 | | enforce the payment of maintenance during
the pendency of an | 14 | | appeal as the court shall deem reasonable and proper.
| 15 | | (d) Maintenance during imprisonment. No maintenance shall | 16 | | accrue during the period in which a party is
imprisoned for | 17 | | failure to comply with the court's order for the payment of
| 18 | | such maintenance.
| 19 | | (e) Fees when maintenance is paid through the clerk. When | 20 | | maintenance is to be paid through the clerk of the court in a
| 21 | | county of 500,000 inhabitants or less, the order shall direct | 22 | | the obligor
to pay to the clerk, in addition to the maintenance | 23 | | payments, all fees
imposed by the county board under paragraph | 24 | | (4) of subsection (bb) of
Section 27.1a of the Clerks of Courts | 25 | | Act. When maintenance is to be paid through the clerk of the | 26 | | court in a
county of more than 500,000 but less than 3,000,000 |
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| 1 | | inhabitants, the order shall direct the obligor
to pay to the | 2 | | clerk, in addition to the maintenance payments, all fees
| 3 | | imposed by the county board under paragraph (4) of subsection | 4 | | (bb) of
Section 27.2 of the Clerks of Courts Act. Unless paid | 5 | | in cash or pursuant
to an order for withholding, the payment of | 6 | | the fee shall be by a separate
instrument from the support | 7 | | payment and shall be made to the order of
the Clerk.
| 8 | | (f) Maintenance secured by life insurance. An award | 9 | | ordered by a court upon entry of a dissolution judgment or upon | 10 | | entry of an award of maintenance following a reservation of | 11 | | maintenance in a dissolution judgment may be reasonably | 12 | | secured, in whole or in part, by life insurance on the
payor's | 13 | | life on terms as to which the parties agree or, if the parties | 14 | | do not agree, on such terms determined by the court,
subject to | 15 | | the following: | 16 | | (1) With respect to existing life insurance, provided | 17 | | the court is apprised through evidence,
stipulation, or | 18 | | otherwise as to level of death benefits, premium, and | 19 | | other relevant
data and makes findings relative thereto, | 20 | | the court may allocate death benefits, the right
to assign | 21 | | death benefits, or the obligation for future premium | 22 | | payments between the
parties as it deems just. | 23 | | (2) To the extent the court determines that its award | 24 | | should be secured, in whole or in part,
by new life | 25 | | insurance on the payor's life, the court may only order: | 26 | | (i) that the payor cooperate on all appropriate |
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| 1 | | steps for the payee to obtain
such new life insurance; | 2 | | and | 3 | | (ii) that the payee, at his or her sole option and | 4 | | expense, may obtain such new life
insurance on the | 5 | | payor's life up to a maximum level of death benefit | 6 | | coverage,
or descending death benefit coverage, as is | 7 | | set by the court, such level not to exceed a reasonable
| 8 | | amount in light of the court's award, with the payee or | 9 | | the
payee's designee being the beneficiary of such | 10 | | life insurance. | 11 | | In determining the maximum level of death benefit | 12 | | coverage, the court shall take into account all relevant | 13 | | facts and circumstances, including the impact on access to | 14 | | life insurance by the maintenance payor. If in resolving | 15 | | any issues under paragraph (2) of this subsection (f) a | 16 | | court reviews any submitted or proposed application for | 17 | | new insurance on the life of a maintenance payor, the | 18 | | review shall be in camera. | 19 | | (3) (Blank). | 20 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 21 | | 100-520, eff. 1-1-18 (see Section 5 of P.A. 100-565 for the | 22 | | effective date of P.A. 100-520); 100-923, eff. 1-1-19 .)
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