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

HB3484ham001 102ND GENERAL ASSEMBLY

Rep. Denyse Stoneback

Filed: 3/19/2021

 

 


 

 


 
10200HB3484ham001LRB102 13864 LNS 23924 a

1
AMENDMENT TO HOUSE BILL 3484

2    AMENDMENT NO. ______. Amend House Bill 3484 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1    returns, pay stubs, and banking statements. Unless the
2    court otherwise directs, any affidavit or supporting
3    documentary evidence submitted pursuant to this paragraph
4    shall not be made part of the public record of the
5    proceedings but shall be available to the court or an
6    appellate court in which the proceedings are subject to
7    review, to the parties, their attorneys, and such other
8    persons as the court may direct. Upon motion of a party, a
9    court may hold a hearing to determine whether and why
10    there is a disparity between a party's sworn affidavit and
11    the supporting documentation. If a party intentionally or
12    recklessly files an inaccurate or misleading financial
13    affidavit, the court shall impose significant penalties
14    and sanctions including, but not limited to, costs and
15    attorney's fees;
16        (2) a temporary restraining order or preliminary
17    injunction, accompanied by affidavit showing a factual
18    basis for any of the following relief:
19            (i) restraining any person from transferring,
20        encumbering, concealing or otherwise disposing of any
21        property except in the usual course of business or for
22        the necessities of life, and, if so restrained,
23        requiring him to notify the moving party and his
24        attorney of any proposed extraordinary expenditures
25        made after the order is issued; however, an order need
26        not include an exception for transferring,

 

 

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1        encumbering, or otherwise disposing of property in the
2        usual course of business or for the necessities of
3        life if the court enters appropriate orders that
4        enable the parties to pay their necessary personal and
5        business expenses including, but not limited to,
6        appropriate professionals to assist the court pursuant
7        to subsection (l) of Section 503 to administer the
8        payment and accounting of such living and business
9        expenses;
10            (ii) enjoining a party from removing a child from
11        the jurisdiction of the court for more than 14 days;
12            (iii) enjoining a party from striking or
13        interfering with the personal liberty of the other
14        party or of any child; or
15            (iv) providing other injunctive relief proper in
16        the circumstances; or
17        (2.5) an allowance from the other party for a retainer
18    fee to obtain an attorney. The petition shall identify the
19    attorney to be retained and shall be accompanied by:
20            (i) a financial affidavit, supported by
21        documentary evidence;
22            (ii) an affidavit from the identified attorney
23        stating that the moving party has contacted the
24        attorney and agreed to retain the attorney and that
25        the attorney has agreed to enter an appearance if the
26        court grants the relief by the moving party; and

 

 

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1            (iii) a certificate stating that if an allowance
2        is granted, the party shall use it only for retaining
3        the attorney.
4        The court shall review the financial affidavit and
5    attorney affidavit, and, if appropriate, grant an
6    allowance to the party for a retainer fee. All awards
7    under this paragraph shall be paid directly to the
8    identified attorney; or
9        (3) other appropriate temporary relief including, in
10    the discretion of the court, ordering the purchase or sale
11    of assets and requiring that a party or parties borrow
12    funds in the appropriate circumstances.
13    Issues concerning temporary maintenance or temporary
14support of a child entitled to support shall be dealt with on a
15summary basis based on allocated parenting time, financial
16affidavits, tax returns, pay stubs, banking statements, and
17other relevant documentation, except an evidentiary hearing
18may be held upon a showing of good cause. If a party
19intentionally or recklessly files an inaccurate or misleading
20financial affidavit, the court shall impose significant
21penalties and sanctions including, but not limited to, costs
22and attorney's fees resulting from the improper
23representation.
24    (b) The court may issue a temporary restraining order
25without requiring notice to the other party only if it finds,
26on the basis of the moving affidavit or other evidence, that

 

 

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

 

 

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

 

 

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1        other party; and
2            (I) any other factor that the court expressly
3        finds to be just and equitable.
4        (2) Any assessment of an interim award (including one
5    pursuant to an agreed order) shall be without prejudice to
6    any final allocation and without prejudice as to any claim
7    or right of either party or any counsel of record at the
8    time of the award. Any such claim or right may be presented
9    by the appropriate party or counsel at a hearing on
10    contribution under subsection (j) of Section 503 or a
11    hearing on counsel's fees under subsection (c) of Section
12    508. Unless otherwise ordered by the court at the final
13    hearing between the parties or in a hearing under
14    subsection (j) of Section 503 or subsection (c) of Section
15    508, interim awards, as well as the aggregate of all other
16    payments by each party to counsel and related payments to
17    third parties, shall be deemed to have been advances from
18    the parties' marital estate. Any portion of any interim
19    award constituting an overpayment shall be remitted back
20    to the appropriate party or parties, or, alternatively, to
21    successor counsel, as the court determines and directs,
22    after notice in a form designated by the Supreme Court. An
23    order for the award of interim attorney's fees shall be a
24    standardized form order and labeled "Interim Fee Award
25    Order".
26        (3) In any proceeding under this subsection (c-1), the

 

 

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1    court (or hearing officer) shall assess an interim award
2    against an opposing party in an amount necessary to enable
3    the petitioning party to participate adequately in the
4    litigation, upon findings that the party from whom
5    attorney's fees and costs are sought has the financial
6    ability to pay reasonable amounts and that the party
7    seeking attorney's fees and costs lacks sufficient access
8    to assets or income to pay reasonable amounts. In
9    determining an award, the court shall consider whether
10    adequate participation in the litigation requires
11    expenditure of more fees and costs for a party that is not
12    in control of assets or relevant information. Except for
13    good cause shown, an interim award shall not be less than
14    payments made or reasonably expected to be made to the
15    counsel for the other party. If the court finds that both
16    parties lack financial ability or access to assets or
17    income for reasonable attorney's fees and costs, the court
18    (or hearing officer) shall enter an order that allocates
19    available funds for each party's counsel, including
20    retainers or interim payments, or both, previously paid,
21    in a manner that achieves substantial parity between the
22    parties.
23        (4) The changes to this Section 501 made by this
24    amendatory Act of 1996 apply to cases pending on or after
25    June 1, 1997, except as otherwise provided in Section 508.
26    (c-2) Allocation of use of marital residence. Where there

 

 

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1is on file a verified complaint or verified petition seeking
2temporary eviction from the marital residence, the court may,
3during the pendency of the proceeding, only in cases where the
4physical or mental well-being of either spouse or his or her
5children is jeopardized by occupancy of the marital residence
6by both spouses, and only upon due notice and full hearing,
7unless waived by the court on good cause shown, enter orders
8granting the exclusive possession of the marital residence to
9either spouse, by eviction from, or restoration of, the
10marital residence, until the final determination of the cause
11pursuant to the factors listed in Section 602.7 of this Act. No
12such order shall in any manner affect any estate in homestead
13property of either party. In entering orders under this
14subsection (c-2), the court shall balance hardships to the
15parties.
16    (d) A temporary order entered under this Section:
17        (1) does not prejudice the rights of the parties or
18    the child which are to be adjudicated at subsequent
19    hearings in the proceeding;
20        (2) may be revoked or modified before final judgment,
21    on a showing by affidavit and upon hearing; and
22        (3) terminates when the final judgment is entered or
23    when the petition for dissolution of marriage or legal
24    separation or declaration of invalidity of marriage is
25    dismissed.
26    (e) The fees or costs of mediation shall be borne by the

 

 

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1parties and may be assessed by the court as it deems equitable
2without prejudice and are subject to reallocation at the
3conclusion of the case.
4    (f) Companion animals. Either party may petition or move
5for the temporary allocation of sole or joint possession of
6and responsibility for a companion animal jointly owned by the
7parties. In issuing an order under this subsection, the court
8shall take into consideration the well-being of the companion
9animal. As used in this Section, "companion animal" does not
10include a service animal as defined in Section 2.01c of the
11Humane Care for Animals Act.
12(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
13100-422, eff. 1-1-18.)".