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

HB3484sam002 102ND GENERAL ASSEMBLY

Sen. Rachelle Crowe

Filed: 5/20/2021

 

 


 

 


 
10200HB3484sam002LRB102 13864 LNS 26850 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        (3) other appropriate temporary relief including, in
18    the discretion of the court, ordering the purchase or sale
19    of assets and requiring that a party or parties borrow
20    funds in the appropriate circumstances.
21    Issues concerning temporary maintenance or temporary
22support of a child entitled to support shall be dealt with on a
23summary basis based on allocated parenting time, financial
24affidavits, tax returns, pay stubs, banking statements, and
25other relevant documentation, except an evidentiary hearing
26may be held upon a showing of good cause. If a party

 

 

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1intentionally or recklessly files an inaccurate or misleading
2financial affidavit, the court shall impose significant
3penalties and sanctions including, but not limited to, costs
4and attorney's fees resulting from the improper
5representation.
6    (b) The court may issue a temporary restraining order
7without requiring notice to the other party only if it finds,
8on the basis of the moving affidavit or other evidence, that
9irreparable injury will result to the moving party if no order
10is issued until the time for responding has elapsed.
11    (c) A response hereunder may be filed within 21 days after
12service of notice of motion or at the time specified in the
13temporary restraining order.
14    (c-1) As used in this subsection (c-1), "interim
15attorney's fees and costs" means attorney's fees and costs,
16including an allowance from the other party for a retainer fee
17to obtain an attorney, assessed from time to time while a case
18is pending, in favor of the petitioning party's current
19counsel, for reasonable fees and costs either already incurred
20or to be incurred, and "interim award" means an award of
21interim attorney's fees and costs, including an allowance from
22the other party for a retainer fee to obtain an attorney.
23Interim awards shall be governed by the following:
24        (1) Except for good cause shown, a proceeding for (or
25    relating to) interim attorney's fees and costs in a
26    pre-judgment dissolution proceeding shall be

 

 

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1    nonevidentiary and summary in nature. All hearings for or
2    relating to interim attorney's fees and costs under this
3    subsection shall be scheduled expeditiously by the court.
4    When a party files a petition for interim attorney's fees
5    and costs supported by one or more affidavits that
6    delineate relevant factors, the court (or a hearing
7    officer) shall assess an interim award after affording the
8    opposing party a reasonable opportunity to file a
9    responsive pleading. A responsive pleading shall set out
10    the amount of each retainer or other payment or payments,
11    or both, previously paid to the responding party's counsel
12    by or on behalf of the responding party. A responsive
13    pleading shall include costs incurred, and shall indicate
14    whether the costs are paid or unpaid. In assessing an
15    interim award, the court shall consider all relevant
16    factors, as presented, that appear reasonable and
17    necessary, including to the extent applicable:
18            (A) the income and property of each party,
19        including alleged marital property within the sole
20        control of one party and alleged non-marital property
21        within access to a party;
22            (B) the needs of each party;
23            (C) the realistic earning capacity of each party;
24            (D) any impairment to present earning capacity of
25        either party, including age and physical and emotional
26        health;

 

 

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1            (E) the standard of living established during the
2        marriage;
3            (F) the degree of complexity of the issues,
4        including allocation of parental responsibility,
5        valuation or division (or both) of closely held
6        businesses, and tax planning, as well as reasonable
7        needs for expert investigations or expert witnesses,
8        or both;
9            (G) each party's access to relevant information;
10            (H) the amount of the payment or payments made or
11        reasonably expected to be made to the attorney for the
12        other party; and
13            (I) any other factor that the court expressly
14        finds to be just and equitable.
15        (1.5) A petition for interim fees that seeks an order
16    for the payment of an initial retainer to retain an
17    attorney shall have attached to it an affidavit from the
18    attorney to be retained that the attorney has been
19    contacted by the moving party and the attorney has agreed
20    to enter an appearance if the court grants the relief
21    requested, together with a certificate from the moving
22    party that the interim fees granted will only be used by
23    the moving party to retain the attorney. Any interim fees
24    granted pursuant to this paragraph shall be paid directly
25    to the identified attorney.
26        (2) Any assessment of an interim award (including one

 

 

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

 

 

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

 

 

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1children is jeopardized by occupancy of the marital residence
2by both spouses, and only upon due notice and full hearing,
3unless waived by the court on good cause shown, enter orders
4granting the exclusive possession of the marital residence to
5either spouse, by eviction from, or restoration of, the
6marital residence, until the final determination of the cause
7pursuant to the factors listed in Section 602.7 of this Act. No
8such order shall in any manner affect any estate in homestead
9property of either party. In entering orders under this
10subsection (c-2), the court shall balance hardships to the
11parties.
12    (d) A temporary order entered under this Section:
13        (1) does not prejudice the rights of the parties or
14    the child which are to be adjudicated at subsequent
15    hearings in the proceeding;
16        (2) may be revoked or modified before final judgment,
17    on a showing by affidavit and upon hearing; and
18        (3) terminates when the final judgment is entered or
19    when the petition for dissolution of marriage or legal
20    separation or declaration of invalidity of marriage is
21    dismissed.
22    (e) The fees or costs of mediation shall be borne by the
23parties and may be assessed by the court as it deems equitable
24without prejudice and are subject to reallocation at the
25conclusion of the case.
26    (f) Companion animals. Either party may petition or move

 

 

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1for the temporary allocation of sole or joint possession of
2and responsibility for a companion animal jointly owned by the
3parties. In issuing an order under this subsection, the court
4shall take into consideration the well-being of the companion
5animal. As used in this Section, "companion animal" does not
6include a service animal as defined in Section 2.01c of the
7Humane Care for Animals Act.
8(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
9100-422, eff. 1-1-18.)".