Full Text of HB1004 98th General Assembly
HB1004 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB1004 Introduced , by Rep. Robert W. Pritchard SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/501 | from Ch. 40, par. 501 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. In the Section concerning temporary relief, provides that a party in proceedings under the Act may move for a temporary restraining order or preliminary injunction to: (1) require a party to surrender to the court or the petitioner's attorney any United States or foreign passport issued in the name of a child; (2) require a party to place the name of a child in the Children's Passport Issuance Alert Program of the United States Department of State; or (3) enjoin a party from applying on behalf of a child for a new or replacement passport or visa. Effective immediately.
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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 501 as follows:
| 6 | | (750 ILCS 5/501) (from Ch. 40, par. 501)
| 7 | | Sec. 501. Temporary Relief.) In all proceedings under this | 8 | | Act,
temporary relief shall be as follows:
| 9 | | (a) Either party may 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;
| 14 | | (2) a temporary restraining order or preliminary | 15 | | injunction, accompanied
by affidavit showing a
factual | 16 | | basis for any of the following relief:
| 17 | | (i) restraining any person from transferring, | 18 | | encumbering,
concealing or otherwise disposing of any | 19 | | property except in the usual
course of business or for | 20 | | the necessities of life, and, if so
restrained, | 21 | | requiring him to notify the moving party and his | 22 | | attorney of
any proposed extraordinary expenditures | 23 | | made after the order is issued;
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| 1 | | (ii) enjoining a party from removing a child from | 2 | | the jurisdiction
of the court;
| 3 | | (iii) enjoining a party from striking or | 4 | | interfering with the
personal liberty of the other | 5 | | party or of any child; or
| 6 | | (iv) requiring a party to surrender to the court or | 7 | | the petitioner's attorney any United States or foreign | 8 | | passport issued in the name of a child, including a | 9 | | passport issued in the name of both the parent and the | 10 | | child; | 11 | | (v) requiring a party to place the name of a child | 12 | | in the Children's Passport Issuance Alert Program of | 13 | | the United States Department of State; | 14 | | (vi) enjoining a party from applying on behalf of a | 15 | | child for a new or replacement passport or visa; or
| 16 | | (vii) (iv) providing other injunctive relief | 17 | | proper in the circumstances;
or
| 18 | | (3) other appropriate temporary relief.
| 19 | | (b) The court may issue a temporary restraining order | 20 | | without
requiring notice to the other party only if it finds, | 21 | | on the basis of
the moving affidavit or other evidence, that | 22 | | irreparable injury will
result to the moving party if no order | 23 | | is issued until the time for
responding has elapsed.
| 24 | | (c) A response hereunder may be filed within 21 days after | 25 | | service
of notice of motion or at the time specified in the | 26 | | temporary
restraining order.
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| 1 | | (c-1) As used in this subsection (c-1), "interim attorney's | 2 | | fees and
costs" means attorney's fees and costs
assessed
from | 3 | | time to time while a case is pending, in favor of the | 4 | | petitioning party's
current counsel, for reasonable fees and | 5 | | costs either already incurred or to be
incurred, and "interim | 6 | | award" means an award of interim attorney's fees and
costs. | 7 | | Interim awards shall be governed by the following:
| 8 | | (1) Except for good cause shown, a proceeding for (or | 9 | | relating to) interim
attorney's fees and costs in a | 10 | | pre-judgment dissolution proceeding shall be | 11 | | nonevidentiary and summary in nature. All hearings for or | 12 | | relating to interim attorney's fees and costs under this | 13 | | subsection shall be scheduled expeditiously by the court. | 14 | | When a party files a petition for interim attorney's fees | 15 | | and
costs supported by one or more
affidavits that | 16 | | delineate relevant factors, the court (or a hearing | 17 | | officer)
shall assess an interim award after affording the | 18 | | opposing party a reasonable
opportunity to file a | 19 | | responsive pleading. A responsive pleading shall set out
| 20 | | the amount of each retainer or other payment or payments, | 21 | | or both, previously
paid to the responding party's counsel | 22 | | by or on behalf of the responding party.
In assessing an
| 23 | | interim award, the court shall consider all relevant | 24 | | factors, as presented,
that appear reasonable and | 25 | | necessary, including to the extent applicable:
| 26 | | (A) the income and property of each party, |
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| 1 | | including alleged marital
property within the sole | 2 | | control of one party and alleged non-marital property
| 3 | | within access to a party;
| 4 | | (B) the needs of each party;
| 5 | | (C) the realistic earning capacity of each party;
| 6 | | (D) any impairment to present earning capacity of | 7 | | either party,
including
age and physical and emotional | 8 | | health;
| 9 | | (E) the standard of living established during the | 10 | | marriage;
| 11 | | (F) the degree of complexity of the issues, | 12 | | including custody, valuation
or division (or both) of | 13 | | closely held businesses, and tax planning, as well as
| 14 | | reasonable needs for expert investigations or expert | 15 | | witnesses, or both;
| 16 | | (G) each party's access to relevant information;
| 17 | | (H) the amount of the payment or payments made or | 18 | | reasonably expected to
be made to the attorney for the | 19 | | other party; and
| 20 | | (I) any other factor that the court expressly finds | 21 | | to be just and
equitable.
| 22 | | (2) Any assessment of an interim award (including one | 23 | | pursuant to an
agreed
order) shall be without prejudice to | 24 | | any final allocation and without prejudice
as to any claim | 25 | | or right of either party or any counsel of record at the | 26 | | time
of the award. Any such claim or right may be presented |
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| 1 | | by the appropriate
party or counsel at a hearing on | 2 | | contribution under subsection (j) of Section
503 or a | 3 | | hearing on counsel's fees under subsection (c) of Section | 4 | | 508. Unless
otherwise ordered by the court at the final | 5 | | hearing between the parties or in a
hearing under | 6 | | subsection (j) of Section 503 or subsection (c) of
Section | 7 | | 508, interim awards, as well as the aggregate of all other | 8 | | payments
by each party
to
counsel and related payments to | 9 | | third parties, shall be deemed to have been
advances from | 10 | | the parties' marital estate. Any portion of any interim | 11 | | award
constituting an overpayment shall be remitted back to | 12 | | the appropriate party or
parties, or, alternatively, to | 13 | | successor counsel, as the court determines and
directs, | 14 | | after notice.
| 15 | | (3) In any proceeding under this subsection (c-1), the | 16 | | court (or hearing
officer) shall assess an interim award | 17 | | against an opposing party in an
amount necessary to enable | 18 | | the petitioning party to participate adequately in
the | 19 | | litigation, upon findings that the party from whom | 20 | | attorney's fees and
costs are sought has the financial | 21 | | ability to pay reasonable amounts and that
the party | 22 | | seeking attorney's fees and costs lacks sufficient access | 23 | | to assets
or income to pay reasonable amounts. In | 24 | | determining an award, the
court shall consider whether | 25 | | adequate participation in the litigation requires
| 26 | | expenditure of more fees and costs for a party that is not |
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| 1 | | in control of assets
or relevant information. Except for | 2 | | good cause shown, an interim award shall
not be less than | 3 | | payments made or reasonably expected to be made to the | 4 | | counsel
for the other party. If the court finds that both | 5 | | parties
lack financial ability or access to assets or | 6 | | income for reasonable attorney's
fees and costs, the court | 7 | | (or hearing officer) shall enter an order that
allocates | 8 | | available funds for each party's counsel, including | 9 | | retainers or
interim payments, or both, previously paid, in | 10 | | a manner that achieves
substantial parity between the | 11 | | parties.
| 12 | | (4) The changes to this Section 501 made by this | 13 | | amendatory Act of 1996
apply to cases pending on or after | 14 | | June 1, 1997, except as otherwise provided
in Section 508.
| 15 | | (d) A temporary order entered under this Section:
| 16 | | (1) does not prejudice the rights of the parties or the | 17 | | child which
are to be adjudicated at subsequent hearings in | 18 | | the proceeding;
| 19 | | (2) may be revoked or modified before final judgment, | 20 | | on a showing
by affidavit and upon hearing; and
| 21 | | (3) terminates when the final judgment is entered or | 22 | | when the
petition for dissolution of marriage or legal | 23 | | separation or declaration
of invalidity of marriage is | 24 | | dismissed.
| 25 | | (Source: P.A. 96-583, eff. 1-1-10.)
| 26 | | Section 99. Effective date. This Act takes effect upon |
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| 1 | | becoming law.
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