Full Text of SB1131 101st General Assembly
SB1131 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 SB1131 Introduced 2/5/2019, by Sen. Michael E. Hastings SYNOPSIS AS INTRODUCED: |
| 750 ILCS 5/505 | from Ch. 40, par. 505 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Makes a technical change in a Section concerning child support.
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| | A BILL FOR |
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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 Section 505 as follows:
| 6 | | (750 ILCS 5/505) (from Ch. 40, par. 505)
| 7 | | Sec. 505. Child support; contempt; penalties.
| 8 | | (a) In a proceeding for for dissolution of marriage, legal | 9 | | separation,
declaration of invalidity of marriage, or | 10 | | dissolution of a civil union, a proceeding for child support
| 11 | | following a legal separation or dissolution of the marriage or | 12 | | civil union by a court that lacked personal
jurisdiction over | 13 | | the absent spouse, a proceeding for modification of a
previous | 14 | | order for child support under Section 510 of this Act, or any
| 15 | | proceeding authorized under Section 501 or 601 of this Act, the | 16 | | court may
order either or both parents owing a duty of support | 17 | | to a child of the
marriage or civil union to pay an amount | 18 | | reasonable and necessary for support. The duty of support owed | 19 | | to a child
includes the obligation to provide for the | 20 | | reasonable and necessary physical, mental and emotional health | 21 | | needs of the child.
For purposes of this Section, the term | 22 | | "child" shall include any child under
age 18 and
any child age | 23 | | 19 or younger who is still attending high school. For purposes |
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| 1 | | of this Section, the term "obligor" means the parent obligated | 2 | | to pay support to the other parent.
| 3 | | (1) Child support guidelines. The Illinois Department | 4 | | of Healthcare and Family Services shall adopt rules | 5 | | establishing child support guidelines which include | 6 | | worksheets to aid in the calculation of the child support | 7 | | obligations and a schedule of basic child support | 8 | | obligations that reflects the percentage of combined net | 9 | | income that parents living in the same household in this | 10 | | State ordinarily spend on their child. The child support | 11 | | guidelines have the following purposes: | 12 | | (A) to establish as State policy an adequate | 13 | | standard of support for a child, subject to the ability | 14 | | of parents to pay; | 15 | | (B) to make child support obligations more | 16 | | equitable by ensuring more consistent treatment of | 17 | | parents in similar circumstances; | 18 | | (C) to improve the efficiency of the court process | 19 | | by promoting settlements and giving courts and the | 20 | | parties guidance in establishing levels of child | 21 | | support; | 22 | | (D) to calculate child support based upon the | 23 | | parents' combined net income estimated to have been | 24 | | allocated for the support of the child if the parents | 25 | | and child were living in an intact household; | 26 | | (E) to adjust child support based upon the needs of |
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| 1 | | the child;
and | 2 | | (F) to allocate the amount of child support to be | 3 | | paid by each parent based upon a parent's net income | 4 | | and the child's physical care arrangements. | 5 | | (1.5) Computation of basic child support obligation. | 6 | | The court shall compute the basic child support obligation | 7 | | by taking the following steps: | 8 | | (A) determine each parent's monthly net income; | 9 | | (B) add the parents' monthly net incomes together | 10 | | to determine the combined monthly net income of the | 11 | | parents; | 12 | | (C) select the corresponding appropriate amount | 13 | | from the schedule of basic child support obligations | 14 | | based on the parties' combined monthly net income and | 15 | | number of children of the parties; and | 16 | | (D) calculate each parent's percentage share of | 17 | | the basic child support obligation. | 18 | | Although a monetary obligation is computed for each | 19 | | parent as child support, the receiving parent's share is | 20 | | not payable to the other parent and is presumed to be spent | 21 | | directly on the child. | 22 | | (2) Duty of support. The court shall determine child | 23 | | support in each case by applying the child support | 24 | | guidelines unless the court makes a finding that | 25 | | application of the guidelines would be inappropriate, | 26 | | after considering the best interests of the child and |
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| 1 | | evidence which shows relevant factors including, but not | 2 | | limited to, one or more of the following: | 3 | | (A) the financial resources and needs of the child; | 4 | | (B) the financial resources and needs of the | 5 | | parents; | 6 | | (C) the standard of living the child would have | 7 | | enjoyed had the marriage or civil union not been | 8 | | dissolved; and | 9 | | (D) the physical and emotional condition of the | 10 | | child and his or her educational needs. | 11 | | (3) Income. | 12 | | (A) As used in this Section, "gross income" means | 13 | | the total of all income from all sources, except "gross | 14 | | income" does not include (i) benefits received by the | 15 | | parent from means-tested public assistance programs, | 16 | | including, but not limited to, Temporary Assistance | 17 | | for Needy Families, Supplemental Security Income, and | 18 | | the Supplemental Nutrition Assistance Program or (ii) | 19 | | benefits and income received by the parent for other | 20 | | children in the household, including, but not limited | 21 | | to, child support, survivor benefits, and foster care | 22 | | payments. Social security disability and retirement | 23 | | benefits paid for the benefit of the subject child must | 24 | | be included in the disabled or retired parent's gross | 25 | | income for purposes of calculating the parent's child | 26 | | support obligation, but the parent is entitled to a |
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| 1 | | child support credit for the amount of benefits paid to | 2 | | the other party for the child. "Gross income" includes | 3 | | maintenance treated as taxable income for federal | 4 | | income tax purposes to the payee and received pursuant | 5 | | to a court order in the pending proceedings or any | 6 | | other proceedings and shall be included in the payee's | 7 | | gross income for purposes of calculating the parent's | 8 | | child support obligation. | 9 | | (B) As used in this Section, "net income" means | 10 | | gross income minus either the standardized tax amount | 11 | | calculated pursuant to subparagraph (C) of this | 12 | | paragraph (3) or the individualized tax amount | 13 | | calculated pursuant to subparagraph (D) of this | 14 | | paragraph (3), and minus any adjustments pursuant to | 15 | | subparagraph (F) of this paragraph (3). The | 16 | | standardized tax amount shall be used unless the | 17 | | requirements for an individualized tax amount set | 18 | | forth in subparagraph (E) of this paragraph (3) are | 19 | | met. "Net income" includes maintenance not includable | 20 | | in the gross taxable income of the payee for federal | 21 | | income tax purposes under a court order in the pending | 22 | | proceedings or any other proceedings and shall be | 23 | | included in the payee's net income for purposes of | 24 | | calculating the parent's child support obligation. | 25 | | (C) As used in this Section, "standardized tax | 26 | | amount" means the total of federal and state income |
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| 1 | | taxes for a single person claiming the standard tax | 2 | | deduction, one personal exemption, and the applicable | 3 | | number of dependency exemptions for the minor child or | 4 | | children of the parties, and Social Security and | 5 | | Medicare tax calculated at the Federal Insurance | 6 | | Contributions Act rate. | 7 | | (I) Unless a court has determined otherwise or | 8 | | the parties otherwise agree, the party with the | 9 | | majority of parenting time shall be deemed | 10 | | entitled to claim the dependency exemption for the | 11 | | parties' minor child. | 12 | | (II) The Illinois Department of Healthcare and | 13 | | Family Services shall promulgate a standardized | 14 | | net income conversion table that computes net | 15 | | income by deducting the standardized tax amount | 16 | | from gross income. | 17 | | (D) As used in this Section, "individualized tax | 18 | | amount" means the aggregate of the following taxes: | 19 | | (I) federal income tax (properly calculated | 20 | | withholding or estimated payments); | 21 | | (II) State income tax (properly calculated | 22 | | withholding or estimated payments); and | 23 | | (III) Social Security or self-employment tax, | 24 | | if applicable (or, if none, mandatory retirement | 25 | | contributions required by law or as a condition of | 26 | | employment) and Medicare tax calculated at the |
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| 1 | | Federal Insurance Contributions Act rate. | 2 | | (E) In lieu of a standardized tax amount, a | 3 | | determination of an individualized tax amount may be | 4 | | made under items (I), (II), or (III) below. If an | 5 | | individualized tax amount determination is made under | 6 | | this subparagraph (E), all relevant tax attributes | 7 | | (including filing status, allocation of dependency | 8 | | exemptions, and whether a party is to claim the use of | 9 | | the standard deduction or itemized deductions for | 10 | | federal income tax purposes) shall be as the parties | 11 | | agree or as the court determines. To determine a | 12 | | party's reported income, the court may order the party | 13 | | to complete an Internal Revenue Service Form 4506-T, | 14 | | Request for Tax Transcript. | 15 | | (I) Agreement. Irrespective of whether the | 16 | | parties agree on any other issue before the court, | 17 | | if they jointly stipulate for the record their | 18 | | concurrence on a computation method for the | 19 | | individualized tax amount that is different from | 20 | | the method set forth under subparagraph (D), the | 21 | | stipulated method shall be used by the court unless | 22 | | the court rejects the proposed stipulated method | 23 | | for good cause. | 24 | | (II) Summary hearing. If the court determines | 25 | | child support in a summary hearing under Section | 26 | | 501 and an eligible party opts in to the |
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| 1 | | individualized tax amount method under this item | 2 | | (II), the individualized tax amount shall be | 3 | | determined by the court on the basis of information | 4 | | contained in one or both parties' Supreme Court | 5 | | approved Financial Affidavit (Family & Divorce | 6 | | Cases) and relevant supporting documents under | 7 | | applicable court rules. No party, however, is | 8 | | eligible to opt in unless the party, under | 9 | | applicable court rules, has served the other party | 10 | | with the required Supreme Court approved Financial | 11 | | Affidavit (Family & Divorce Cases) and has | 12 | | substantially produced supporting documents | 13 | | required by the applicable court rules. | 14 | | (III) Evidentiary hearing. If the court | 15 | | determines child support in an evidentiary | 16 | | hearing, whether for purposes of a temporary order | 17 | | or at the conclusion of a proceeding, item (II) of | 18 | | this subparagraph (E) does not apply. In each such | 19 | | case (unless item (I) governs), the individualized | 20 | | tax amount shall be as determined by the court on | 21 | | the basis of the record established. | 22 | | (F) Adjustments to income. | 23 | | (I) Multi-family adjustment. If a parent is | 24 | | also legally responsible for support of a child not | 25 | | shared with the other parent and not subject to the | 26 | | present proceeding, there shall be an adjustment |
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| 1 | | to net income as follows: | 2 | | (i) Multi-family adjustment with court | 3 | | order. The court shall deduct from the parent's | 4 | | net income the amount of child support actually | 5 | | paid by the parent pursuant to a support order | 6 | | unless the court makes a finding that it would | 7 | | cause economic hardship to the child. | 8 | | (ii) Multi-family adjustment without court | 9 | | order. Upon the request or application of a | 10 | | parent actually supporting a presumed, | 11 | | acknowledged, or adjudicated child living in | 12 | | or outside of that parent's household, there | 13 | | shall be an adjustment to child support. The | 14 | | court shall deduct from the parent's net income | 15 | | the amount of financial support actually paid | 16 | | by the parent for the child or 75% of the | 17 | | support the parent should pay under the child | 18 | | support guidelines (before this adjustment), | 19 | | whichever is less, unless the court makes a | 20 | | finding that it would cause economic hardship | 21 | | to the child. The adjustment shall be | 22 | | calculated using that parent's income alone. | 23 | | (II) Spousal Maintenance adjustment. | 24 | | Obligations pursuant to a court order for spousal | 25 | | maintenance in the pending proceeding actually | 26 | | paid or payable to the same party to whom child |
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| 1 | | support is to be payable or actually paid to a | 2 | | former spouse pursuant to a court order shall be | 3 | | deducted from the parent's after-tax income, | 4 | | unless the maintenance obligation is tax | 5 | | deductible to the payor for federal income tax | 6 | | purposes, in which case it shall be deducted from | 7 | | the payor's gross income for purposes of | 8 | | calculating the parent's child support obligation. | 9 | | (3.1) Business income.
For purposes of calculating | 10 | | child support, net business income from the operation of a | 11 | | business means gross receipts minus ordinary and necessary | 12 | | expenses required to carry on the trade or business. As | 13 | | used in this paragraph, "business" includes, but is not | 14 | | limited to, sole proprietorships, closely held | 15 | | corporations, partnerships, other flow-through business | 16 | | entities, and self-employment. The court shall apply the | 17 | | following: | 18 | | (A) The accelerated component of depreciation and | 19 | | any business expenses determined either judicially or | 20 | | administratively to be inappropriate or excessive | 21 | | shall be excluded from the total of ordinary and | 22 | | necessary business expenses to be deducted in the | 23 | | determination of net business income from gross | 24 | | business income. | 25 | | (B) Any item of reimbursement or in-kind payment | 26 | | received by a parent from a business, including, but |
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| 1 | | not limited to, a company car, reimbursed meals, free | 2 | | housing, or a housing allowance, shall be counted as | 3 | | income if not otherwise included in the recipient's | 4 | | gross income, if the item is significant in amount and | 5 | | reduces personal expenses. | 6 | | (3.2) Unemployment or underemployment.
If a parent is | 7 | | voluntarily unemployed or underemployed, child support | 8 | | shall be calculated based on a determination of potential | 9 | | income. A determination of potential income shall be made | 10 | | by determining employment potential and probable earnings | 11 | | level based on the obligor's work history, occupational | 12 | | qualifications, prevailing job opportunities, the | 13 | | ownership by a parent of a substantial non-income producing | 14 | | asset, and earnings levels in the community. If there is | 15 | | insufficient work history to determine employment | 16 | | potential and probable earnings level, there shall be a | 17 | | rebuttable presumption that the parent's potential income | 18 | | is 75% of the most recent United States Department of | 19 | | Health and Human Services Federal Poverty Guidelines for a | 20 | | family of one person. | 21 | | (3.3) Rebuttable presumption in favor of guidelines.
| 22 | | There is a rebuttable presumption in any judicial or | 23 | | administrative proceeding for child support that the | 24 | | amount of the child support obligation that would result | 25 | | from the application of the child support guidelines is the | 26 | | correct amount of child support. |
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| 1 | | (3.3a) Minimum child support obligation. There is a | 2 | | rebuttable presumption that a minimum child support | 3 | | obligation of $40 per month, per child, will be entered for | 4 | | an obligor who has actual or imputed gross income at or | 5 | | less than 75% of the most recent United States Department | 6 | | of Health and Human Services Federal Poverty Guidelines for | 7 | | a family of one person, with a maximum total child support | 8 | | obligation for that obligor of $120 per month to be divided | 9 | | equally among all of the obligor's children. | 10 | | (3.3b) Zero dollar child support order. For parents | 11 | | with no gross income, who receive only means-tested | 12 | | assistance, or who cannot work due to a medically proven | 13 | | disability, incarceration, or institutionalization, there | 14 | | is a rebuttable presumption that the $40 per month minimum | 15 | | support order is inapplicable and a zero dollar order shall | 16 | | be entered. | 17 | | (3.4) Deviation factors.
In any action to establish or | 18 | | modify child support, whether pursuant to a temporary or | 19 | | final administrative or court order, the child support | 20 | | guidelines shall be used as a rebuttable presumption for | 21 | | the establishment or modification of the amount of child | 22 | | support. The court may deviate from the child support | 23 | | guidelines if the application would be inequitable, | 24 | | unjust, or inappropriate. Any deviation from the | 25 | | guidelines shall be accompanied by written findings by the | 26 | | court specifying the reasons for the deviation and the |
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| 1 | | presumed amount under the child support guidelines without | 2 | | a deviation. These reasons may include: | 3 | | (A) extraordinary medical expenditures necessary | 4 | | to preserve the life or health of a party or a child of | 5 | | either or both of the parties; | 6 | | (B) additional expenses incurred for a child | 7 | | subject to the child support order who has special | 8 | | medical, physical, or developmental needs; and | 9 | | (C) any other factor the court determines should be | 10 | | applied upon a finding that the application of the | 11 | | child support guidelines would be inappropriate, after | 12 | | considering the best interest of the child. | 13 | | (3.5) Income in excess of the schedule of basic child | 14 | | support obligation. A court may use its discretion to | 15 | | determine child support if the combined adjusted net income | 16 | | of the parties exceeds the highest level of the schedule of | 17 | | basic child support obligation, except that the basic child | 18 | | support obligation shall not be less than the highest level | 19 | | of combined net income set forth in the schedule of basic | 20 | | child support obligation. | 21 | | (3.6) Extracurricular activities and school expenses.
| 22 | | The court, in its discretion, in addition to the basic | 23 | | child support obligation, may order either or both parents | 24 | | owing a duty of support to the child to contribute to the | 25 | | reasonable school and extracurricular activity expenses | 26 | | incurred which are intended to enhance the educational, |
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| 1 | | athletic, social, or cultural development of the child. | 2 | | (3.7) Child care expenses.
The court, in its | 3 | | discretion, in addition to the basic child support | 4 | | obligation, may order either or both parents owing a duty | 5 | | of support to the child to contribute to the reasonable | 6 | | child care expenses of the child. The child care expenses | 7 | | shall be made payable directly to a party or directly to | 8 | | the child care provider at the time of child care services. | 9 | | (A) "Child care expenses" means actual expenses | 10 | | reasonably necessary to enable a parent or non-parent | 11 | | custodian to be employed, to attend educational or | 12 | | vocational training programs to improve employment | 13 | | opportunities, or to search for employment. "Child | 14 | | care expenses" also includes deposits for securing | 15 | | placement in a child care program, the cost of before | 16 | | and after school care, and camps when school is not in | 17 | | session. A child's special needs shall be a | 18 | | consideration in determining reasonable child care | 19 | | expenses. | 20 | | (B) Child care expenses shall be prorated in | 21 | | proportion to each parent's percentage share of | 22 | | combined net income, and may be added to the basic | 23 | | child support obligation if not paid directly by each | 24 | | parent to the provider of child care services. The | 25 | | obligor's and obligee's portion of actual child care | 26 | | expenses shall appear in the support order. If allowed, |
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| 1 | | the value of the federal income tax credit for child | 2 | | care shall be subtracted from the actual cost to | 3 | | determine the net child care costs. | 4 | | (C) The amount of child care expenses shall be | 5 | | adequate to obtain reasonable and necessary child | 6 | | care. The actual child care expenses shall be used to | 7 | | calculate the child care expenses, if available. When | 8 | | actual child care expenses vary, the actual child care | 9 | | expenses may be averaged over the most recent 12-month | 10 | | period. When a parent is temporarily unemployed or | 11 | | temporarily not attending educational or vocational | 12 | | training programs, future child care expenses shall be | 13 | | based upon prospective expenses to be incurred upon | 14 | | return to employment or educational or vocational | 15 | | training programs. | 16 | | (D) An order for child care expenses may be | 17 | | modified upon a showing of a substantial change in | 18 | | circumstances. The party incurring child care expenses | 19 | | shall notify the other party within 14 days of any | 20 | | change in the amount of child care expenses that would | 21 | | affect the annualized child care amount as determined | 22 | | in the support order. | 23 | | (3.8) Shared physical care. If each parent exercises | 24 | | 146 or more overnights per year with the child, the basic | 25 | | child support obligation is multiplied by 1.5 to calculate | 26 | | the shared care child support obligation. The court shall |
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| 1 | | determine each parent's share of the shared care child | 2 | | support obligation based on the parent's percentage share | 3 | | of combined net income. The child support obligation is | 4 | | then computed for each parent by multiplying that parent's | 5 | | portion of the shared care support obligation by the | 6 | | percentage of time the child spends with the other parent. | 7 | | The respective child support obligations are then offset, | 8 | | with the parent owing more child support paying the | 9 | | difference between the child support amounts. The Illinois | 10 | | Department of Healthcare and Family Services shall | 11 | | promulgate a worksheet to calculate child support in cases | 12 | | in which the parents have shared physical care and use the | 13 | | standardized tax amount to determine net income. | 14 | | (3.9) Split physical care. When
there is more than one | 15 | | child and each parent has physical care of at least one but | 16 | | not all of the children, the support is calculated by using | 17 | | 2 child support worksheets to determine the support each | 18 | | parent owes the other. The support shall be calculated as | 19 | | follows: | 20 | | (A) compute the support the first parent would owe | 21 | | to other parent as if the child in his or her care was | 22 | | the only child of the parties; then | 23 | | (B) compute the support the other parent would owe | 24 | | to the first parent as if the child in his or her care | 25 | | were the only child of the parties; then | 26 | | (C) subtract the lesser support obligation from |
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| 1 | | the greater. | 2 | | The parent who owes the greater obligation shall be | 3 | | ordered to pay the difference in support to the other | 4 | | parent, unless the court determines, pursuant to other | 5 | | provisions of this Section, that it should deviate from the | 6 | | guidelines. | 7 | | (4) Health care. | 8 | | (A) A portion of the basic child support obligation | 9 | | is intended to cover basic ordinary out-of-pocket | 10 | | medical expenses. The court, in its discretion, in | 11 | | addition to the basic child support obligation, shall | 12 | | also provide for the child's current and future medical | 13 | | needs by ordering either or both parents to initiate | 14 | | health insurance coverage for the child through | 15 | | currently effective health insurance policies held by | 16 | | the parent or parents, purchase one or more or all | 17 | | health, dental, or vision insurance policies for the | 18 | | child, or provide for the child's current and future | 19 | | medical needs through some other manner. | 20 | | (B) The court, in its discretion, may order either | 21 | | or both parents to contribute to the reasonable health | 22 | | care needs of the child not covered by insurance, | 23 | | including, but not limited to, unreimbursed medical, | 24 | | dental, orthodontic, or vision expenses and any | 25 | | prescription medication for the child not covered | 26 | | under the child's health insurance. |
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| 1 | | (C) If neither parent has access to appropriate | 2 | | private health insurance coverage, the court may | 3 | | order: | 4 | | (I) one or both parents to provide health | 5 | | insurance coverage at any time it becomes | 6 | | available at a reasonable cost; or | 7 | | (II) the parent or non-parent custodian with | 8 | | primary physical responsibility for the child to | 9 | | apply for public health insurance coverage for the | 10 | | child and require either or both parents to pay a | 11 | | reasonable amount of the cost of health insurance | 12 | | for the child. | 13 | | The order may also provide that any time private | 14 | | health insurance coverage is available at a reasonable | 15 | | cost to that party it will be provided instead of cash | 16 | | medical support. As used in this Section, "cash medical | 17 | | support" means an amount ordered to be paid toward the | 18 | | cost of health insurance provided by a public entity or | 19 | | by another person through employment or otherwise or | 20 | | for other medical costs not covered by insurance. | 21 | | (D) The amount to be added to the basic child | 22 | | support obligation shall be the actual amount of the | 23 | | total health insurance premium that is attributable to | 24 | | the child who is the subject of the order. If this | 25 | | amount is not available or cannot be verified, the | 26 | | total cost of the health insurance premium shall be |
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| 1 | | divided by the total number of persons covered by the | 2 | | policy. The cost per person derived from this | 3 | | calculation shall be multiplied by the number of | 4 | | children who are the subject of the order and who are | 5 | | covered under the health insurance policy. This amount | 6 | | shall be added to the basic child support obligation | 7 | | and shall be allocated between the parents in | 8 | | proportion to their respective net incomes. | 9 | | (E) After the health insurance premium for the | 10 | | child is added to the basic child support obligation | 11 | | and allocated between the parents in proportion to | 12 | | their respective incomes for child support purposes, | 13 | | if the obligor is paying the premium, the amount | 14 | | calculated for the obligee's share of the health | 15 | | insurance premium for the child shall be deducted from | 16 | | the obligor's share of the total child support | 17 | | obligation. If the obligee is paying for private health | 18 | | insurance for the child, the child support obligation | 19 | | shall be increased by the obligor's share of the | 20 | | premium payment. The obligor's and obligee's portion | 21 | | of health insurance costs shall appear in the support | 22 | | order. | 23 | | (F) Prior to allowing the health insurance | 24 | | adjustment, the parent requesting the adjustment must | 25 | | submit proof that the child has been enrolled in a | 26 | | health insurance plan and must submit proof of the cost |
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| 1 | | of the premium. The court shall require the parent | 2 | | receiving the adjustment to annually submit proof of | 3 | | continued coverage of the child to the other parent, or | 4 | | as designated by the court. | 5 | | (G) A reasonable cost for providing health | 6 | | insurance coverage for the child may not exceed 5% of | 7 | | the providing parent's gross income. Parents with a net | 8 | | income below 133% of the most recent United States | 9 | | Department of Health and Human Services Federal | 10 | | Poverty Guidelines or whose child is covered by | 11 | | Medicaid based on that parent's income may not be | 12 | | ordered to contribute toward or provide private | 13 | | coverage, unless private coverage is obtainable | 14 | | without any financial contribution by that parent. | 15 | | (H) If dental or vision insurance is included as | 16 | | part of the employer's medical plan, the coverage shall | 17 | | be maintained for the child. If not included in the | 18 | | employer's medical plan, adding the dental or vision | 19 | | insurance for the child is at the discretion of the | 20 | | court. | 21 | | (I) If a parent has been directed to provide health | 22 | | insurance pursuant to this paragraph and that parent's | 23 | | spouse or legally recognized partner provides the | 24 | | insurance for the benefit of the child either directly | 25 | | or through employment, a credit on the child support | 26 | | worksheet shall be given to that parent in the same |
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| 1 | | manner as if the premium were paid by that parent.
| 2 | | (4.5) In a proceeding for child support following | 3 | | dissolution of the
marriage or civil union by a court that | 4 | | lacked personal jurisdiction over the absent spouse,
and in | 5 | | which the court is requiring payment of support for the | 6 | | period before
the date an order for current support is | 7 | | entered, there is a rebuttable
presumption
that the | 8 | | obligor's net income for the prior period was the same as | 9 | | his
or her net income at the time the order for current | 10 | | support is entered.
| 11 | | (5) If the net income cannot be determined because of | 12 | | default or any
other reason, the court shall order support | 13 | | in an amount considered
reasonable in the particular case. | 14 | | The final order in all cases shall
state the support level | 15 | | in dollar amounts.
However, if the
court finds that the | 16 | | child support amount cannot be expressed exclusively as a
| 17 | | dollar amount because all or a portion of the obligor's net | 18 | | income is uncertain
as to source, time of payment, or | 19 | | amount, the court may order a percentage
amount of support | 20 | | in addition to a specific dollar amount and enter
such | 21 | | other orders as may be necessary to determine and enforce, | 22 | | on a timely
basis, the applicable support ordered.
| 23 | | (6) If (i) the obligor was properly served with a | 24 | | request
for
discovery of financial information relating to | 25 | | the obligor's
ability to
provide child support, (ii) the | 26 | | obligor failed to comply with the
request,
despite having |
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| 1 | | been ordered to do so by the court, and (iii) the obligor | 2 | | is not present at the hearing to determine support despite | 3 | | having
received
proper notice, then any relevant financial | 4 | | information concerning the obligor's
ability to provide | 5 | | child support that was obtained
pursuant to
subpoena and | 6 | | proper notice shall be admitted into evidence without the | 7 | | need to
establish any further foundation for its admission.
| 8 | | (a-5) In an action to enforce an order for child support | 9 | | based on the obligor's
failure
to make support payments as | 10 | | required by the order, notice of proceedings to
hold the | 11 | | obligor in contempt for that failure may be served on the | 12 | | obligor
by personal service or by regular mail addressed to the | 13 | | last known address of the obligor. The last known address of | 14 | | the obligor may be determined from
records of the clerk of the | 15 | | court, from the Federal Case Registry of Child
Support Orders, | 16 | | or by any other reasonable means.
| 17 | | (b) Failure of either parent to comply with an order to pay | 18 | | support shall
be punishable as in other cases of contempt. In | 19 | | addition to other
penalties provided by law the court may, | 20 | | after finding the parent guilty
of contempt, order that the | 21 | | parent be:
| 22 | | (1) placed on probation with such conditions of | 23 | | probation as the court
deems advisable;
| 24 | | (2) sentenced to periodic imprisonment for a period not | 25 | | to exceed 6
months; provided, however, that the court may | 26 | | permit the parent to be
released for periods of time during |
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| 1 | | the day or night to:
| 2 | | (A) work; or
| 3 | | (B) conduct a business or other self-employed | 4 | | occupation.
| 5 | | The court may further order any part or all of the earnings | 6 | | of a parent
during a sentence of periodic imprisonment paid to | 7 | | the Clerk of the Circuit
Court or to the parent having physical | 8 | | possession of the child or to the non-parent custodian having | 9 | | custody
of the child of the sentenced parent for the support of | 10 | | the child until further order of the court.
| 11 | | If a parent who is found guilty of contempt for failure to | 12 | | comply with an order to pay support is a person who conducts a | 13 | | business or who is self-employed, the court in addition to | 14 | | other penalties provided by law may order that the parent do | 15 | | one or more of the following: (i) provide to the court monthly | 16 | | financial statements showing income and expenses from the | 17 | | business or the self-employment; (ii) seek employment and | 18 | | report periodically to the court with a diary, listing, or | 19 | | other memorandum of his or her employment search efforts; or | 20 | | (iii) report to the Department of Employment Security for job | 21 | | search services to find employment that will be subject to | 22 | | withholding for child support. | 23 | | If there is a unity of interest and ownership sufficient to | 24 | | render no
financial separation between an obligor and another | 25 | | person or
persons or business entity, the court may pierce the | 26 | | ownership veil of the
person, persons, or business entity to |
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| 1 | | discover assets of the obligor held in the name of that person, | 2 | | those persons, or that business entity.
The following | 3 | | circumstances are sufficient to authorize a court to order
| 4 | | discovery of the assets of a person, persons, or business | 5 | | entity and to compel
the application of any discovered assets | 6 | | toward payment on the judgment for
support:
| 7 | | (1) the obligor and the person, persons, or business | 8 | | entity
maintain records together.
| 9 | | (2) the obligor and the person, persons, or business | 10 | | entity
fail to maintain an arm's length relationship | 11 | | between themselves with regard to
any assets.
| 12 | | (3) the obligor transfers assets to the person, | 13 | | persons,
or business entity with the intent to perpetrate a | 14 | | fraud on the obligee.
| 15 | | With respect to assets which
are real property, no order | 16 | | entered under this paragraph shall affect the
rights of bona | 17 | | fide purchasers, mortgagees, judgment creditors, or other lien
| 18 | | holders who acquire their interests in the property prior to | 19 | | the time a notice
of lis pendens pursuant to the Code of Civil | 20 | | Procedure or a copy of the order
is placed of record in the | 21 | | office of the recorder of deeds for the county in
which the | 22 | | real property is located.
| 23 | | The court may also order in cases where the parent is 90 | 24 | | days or more
delinquent in payment of support or has been | 25 | | adjudicated in arrears in an
amount equal to 90 days obligation | 26 | | or more, that the parent's Illinois driving
privileges be |
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| 1 | | suspended until the court
determines that the parent is in | 2 | | compliance with the order of support.
The court may also order | 3 | | that the parent be issued a family financial
responsibility | 4 | | driving permit that would allow limited driving privileges for
| 5 | | employment and medical purposes in accordance with Section | 6 | | 7-702.1 of the
Illinois Vehicle Code. The Clerk of the Circuit | 7 | | Court shall certify the order
suspending the driving privileges | 8 | | of the parent or granting the issuance of a
family financial | 9 | | responsibility driving permit to the Secretary of State on
| 10 | | forms prescribed by the Secretary of State. Upon receipt of the | 11 | | authenticated
documents, the Secretary of State shall suspend | 12 | | the parent's driving privileges
until further order of the | 13 | | court and shall, if ordered by the court, subject to
the | 14 | | provisions of Section 7-702.1 of the Illinois Vehicle Code, | 15 | | issue a family
financial responsibility driving permit to the | 16 | | parent.
| 17 | | In addition to the penalties or punishment that may be | 18 | | imposed under this
Section, any person whose conduct | 19 | | constitutes a violation of Section 15 of the
Non-Support | 20 | | Punishment Act may be prosecuted under that Act, and a person
| 21 | | convicted under that Act may be sentenced in accordance with | 22 | | that Act. The
sentence may include but need not be limited to a | 23 | | requirement that the person
perform community service under | 24 | | Section 50 of that Act or participate in a work
alternative | 25 | | program under Section 50 of that Act. A person may not be | 26 | | required
to participate in a work alternative program under |
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| 1 | | Section 50 of that Act if
the person is currently participating | 2 | | in a work program pursuant to Section
505.1 of this Act.
| 3 | | A support obligation, or any portion of a support | 4 | | obligation, which becomes
due and remains unpaid as of the end | 5 | | of each month, excluding the child support that was due for | 6 | | that month to the extent that it was not paid in that month, | 7 | | shall accrue simple interest as set forth in Section 12-109 of | 8 | | the Code of Civil Procedure.
An order for support entered or | 9 | | modified on or after January 1, 2006 shall
contain a statement | 10 | | that a support obligation required under the order, or any
| 11 | | portion of a support obligation required under the order, that | 12 | | becomes due and
remains unpaid as of the end of each month, | 13 | | excluding the child support that was due for that month to the | 14 | | extent that it was not paid in that month, shall accrue simple | 15 | | interest as set forth in Section 12-109 of the Code of Civil | 16 | | Procedure. Failure to include the statement in the order for | 17 | | support does
not affect the validity of the order or the | 18 | | accrual of interest as provided in
this Section.
| 19 | | (c) A one-time charge of 20% is imposable upon the amount | 20 | | of
past-due child support owed on July 1, 1988 which has | 21 | | accrued under a
support order entered by the court. The charge | 22 | | shall be imposed in
accordance with the provisions of Section | 23 | | 10-21 of the Illinois Public Aid
Code and shall be enforced by | 24 | | the court upon petition.
| 25 | | (d) Any new or existing support order entered by the court
| 26 | | under this Section shall be deemed to be a series of judgments |
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| 1 | | against the
person obligated to pay support thereunder, each | 2 | | such judgment to be in the
amount of each payment or | 3 | | installment of support and each such judgment to
be deemed | 4 | | entered as of the date the corresponding payment or installment
| 5 | | becomes due under the terms of the support order. Each such | 6 | | judgment shall
have the full force, effect and attributes of | 7 | | any other judgment of this
State, including the ability to be | 8 | | enforced.
Notwithstanding any other State or local law to the | 9 | | contrary, a lien arises by operation of law against the real | 10 | | and personal property of
the obligor for each installment of | 11 | | overdue support owed by the obligor.
| 12 | | (e) When child support is to be paid through the Clerk of | 13 | | the Court in a
county of 500,000 inhabitants or less, the order | 14 | | shall direct the obligor to pay to the Clerk, in addition to | 15 | | the child support payments, all fees
imposed by the county | 16 | | board under paragraph (4) of subsection (bb) of
Section 27.1a | 17 | | of the Clerks of Courts Act. When child support is to be paid | 18 | | through the clerk of the court in a
county of more than 500,000 | 19 | | but less than 3,000,000 inhabitants, the order shall direct the | 20 | | obligor
to pay to the clerk, in addition to the child support | 21 | | payments, all fees
imposed by the county board under paragraph | 22 | | (4) of subsection (bb) of
Section 27.2 of the Clerks of Courts | 23 | | Act. Unless paid pursuant to
an Income Withholding Order/Notice | 24 | | for Support, the payment of the fee shall be by payment | 25 | | acceptable to the clerk and shall be made to the order of the
| 26 | | Clerk.
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| 1 | | (f) All orders for support, when entered or
modified, shall | 2 | | include a provision requiring the obligor to notify
the court | 3 | | and, in cases in which a party is receiving child and spouse
| 4 | | services under Article X of the Illinois Public Aid Code, the
| 5 | | Department of Healthcare and Family Services, within 7 days, | 6 | | (i) of the name and address
of any new employer of the obligor, | 7 | | (ii) whether the obligor has access to
health insurance | 8 | | coverage through the employer or other group coverage and,
if | 9 | | so, the policy name and number and the names of persons covered | 10 | | under
the policy, except only the initials of any covered | 11 | | minors shall be included, and (iii) of any new residential or | 12 | | mailing address or telephone
number of the obligor. In any | 13 | | subsequent action to enforce a
support order, upon a sufficient | 14 | | showing that a diligent effort has been made
to ascertain the | 15 | | location of the obligor, service of process or
provision of | 16 | | notice necessary in the case may be made at the last known
| 17 | | address of the obligor in any manner expressly provided by the
| 18 | | Code of Civil Procedure or this Act, which service shall be | 19 | | sufficient for
purposes of due process.
| 20 | | (g) An order for support shall include a date on which the | 21 | | current
support obligation terminates. The termination date | 22 | | shall be no earlier than
the date on which the child covered by | 23 | | the order will attain the age of
18. However, if the child will | 24 | | not graduate from high school until after
attaining the age of | 25 | | 18, then the termination date shall be no earlier than the
| 26 | | earlier of the date on which the child's high school graduation |
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| 1 | | will occur or
the date on which the child will attain the age | 2 | | of 19. The order for support
shall state that the termination | 3 | | date does not apply to any arrearage that may
remain unpaid on | 4 | | that date. Nothing in this subsection shall be construed to
| 5 | | prevent the court from modifying the order or terminating the | 6 | | order in the
event the child is otherwise emancipated.
| 7 | | (g-5) If there is an unpaid arrearage or delinquency (as | 8 | | those terms are defined in the Income Withholding for Support | 9 | | Act) equal to at least one month's support obligation on the | 10 | | termination date stated in the order for support or, if there | 11 | | is no termination date stated in the order, on the date the | 12 | | child attains the age of majority or is otherwise emancipated, | 13 | | the periodic amount required to be paid for current support of | 14 | | that child immediately prior to that date shall automatically | 15 | | continue to be an obligation, not as current support but as | 16 | | periodic payment toward satisfaction of the unpaid arrearage or | 17 | | delinquency. That periodic payment shall be in addition to any | 18 | | periodic payment previously required for satisfaction of the | 19 | | arrearage or delinquency. The total periodic amount to be paid | 20 | | toward satisfaction of the arrearage or delinquency may be | 21 | | enforced and collected by any method provided by law for | 22 | | enforcement and collection of child support, including but not | 23 | | limited to income withholding under the Income Withholding for | 24 | | Support Act. Each order for support entered or modified on or | 25 | | after January 1, 2005 (the effective date of Public Act | 26 | | 93-1061) must contain a statement notifying the parties of the |
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| 1 | | requirements of this subsection. Failure to include the | 2 | | statement in the order for support does not affect the validity | 3 | | of the order or the operation of the provisions of this | 4 | | subsection with regard to the order. This subsection shall not | 5 | | be construed to prevent or affect the establishment or | 6 | | modification of an order for support of a minor child or the | 7 | | establishment or modification of an order for support of a | 8 | | non-minor child or educational expenses under Section 513 of | 9 | | this Act.
| 10 | | (h) An order entered under this Section shall include a | 11 | | provision requiring
either parent to report to the other parent | 12 | | and to the Clerk of Court within 10 days each time either | 13 | | parent obtains new employment, and each time either parent's
| 14 | | employment is terminated for any reason. The report shall be in | 15 | | writing and
shall, in the case of new employment, include the | 16 | | name and address of the new
employer. Failure to report new | 17 | | employment or the termination of current
employment, if coupled | 18 | | with nonpayment of support for a period in excess of 60
days, | 19 | | is indirect criminal contempt. For either parent arrested for | 20 | | failure to report new employment bond shall be set in the | 21 | | amount of the child support that should have been paid during | 22 | | the period of unreported employment. An order entered under | 23 | | this Section shall also include a provision requiring either | 24 | | obligor
and obligee to advise the other of a change in | 25 | | residence within 5 days
of the change except when the court | 26 | | finds that the physical, mental, or
emotional health of a party |
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| 1 | | or that of a child, or both, would be
seriously endangered by | 2 | | disclosure of the party's address.
| 3 | | (i) The court does not lose the powers of contempt, | 4 | | driver's license
suspension, or other child support | 5 | | enforcement mechanisms, including, but
not limited to, | 6 | | criminal prosecution as set forth in this Act, upon the
| 7 | | emancipation of the minor child.
| 8 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 99-764, | 9 | | eff. 7-1-17; 100-15, eff. 7-1-17; 100-863, eff. 8-14-18; | 10 | | 100-923, eff. 1-1-19 .)
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