Full Text of SB1824 097th General Assembly
SB1824enr 97TH 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 503, 504, 505, and | 6 | | 510 as follows:
| 7 | | (750 ILCS 5/503) (from Ch. 40, par. 503)
| 8 | | Sec. 503. Disposition of property.
| 9 | | (a) For purposes of this Act, "marital property" means all | 10 | | property acquired
by either spouse subsequent to the marriage, | 11 | | except the following, which is
known as "non-marital property":
| 12 | | (1) property acquired by gift, legacy or descent;
| 13 | | (2) property acquired in exchange for property | 14 | | acquired before the
marriage or in exchange for property | 15 | | acquired by gift, legacy or descent;
| 16 | | (3) property acquired by a spouse after a judgment of | 17 | | legal separation;
| 18 | | (4) property excluded by valid agreement of the | 19 | | parties;
| 20 | | (5) any judgment or property obtained by judgment | 21 | | awarded to a spouse
from the other spouse;
| 22 | | (6) property acquired before the marriage;
| 23 | | (7) the increase in value of property acquired by a |
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| 1 | | method listed in
paragraphs (1) through (6) of this | 2 | | subsection, irrespective of whether the
increase results | 3 | | from a contribution of marital property, non-marital | 4 | | property,
the personal effort of a spouse, or otherwise, | 5 | | subject to the right of
reimbursement provided in | 6 | | subsection (c) of this Section; and
| 7 | | (8) income from property acquired by a method listed in | 8 | | paragraphs (1)
through (7) of this subsection if the income | 9 | | is not attributable to the
personal effort of a spouse.
| 10 | | (b)(1) For purposes of distribution of property pursuant to | 11 | | this
Section, all property acquired by either spouse after the | 12 | | marriage and before a
judgment of dissolution of marriage or | 13 | | declaration of invalidity of marriage,
including non-marital | 14 | | property transferred into some form of co-ownership
between the | 15 | | spouses, is presumed to be marital property, regardless of | 16 | | whether
title is held individually or by the spouses in some | 17 | | form of co-ownership such
as joint tenancy, tenancy in common, | 18 | | tenancy by the entirety, or community
property. The presumption | 19 | | of marital property is overcome by a showing that
the property | 20 | | was acquired by a method listed in subsection (a) of this | 21 | | Section.
| 22 | | (2) For purposes of distribution of property pursuant to | 23 | | this Section,
all pension benefits (including pension benefits | 24 | | under the Illinois Pension
Code) acquired by either spouse | 25 | | after the marriage and before a judgment of
dissolution of | 26 | | marriage or declaration of invalidity of the marriage are
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| 1 | | presumed to be marital property, regardless of which spouse | 2 | | participates in the
pension plan. The presumption that these | 3 | | pension benefits are marital property
is overcome by a showing | 4 | | that the pension benefits were acquired by a method
listed in | 5 | | subsection (a) of this Section. The right to a division of | 6 | | pension
benefits in just proportions under this Section is | 7 | | enforceable under Section
1-119 of the Illinois Pension Code.
| 8 | | The value of pension benefits in a retirement system | 9 | | subject to the Illinois
Pension Code shall be determined in | 10 | | accordance with the valuation procedures
established by the | 11 | | retirement system.
| 12 | | The recognition of pension benefits as marital property and | 13 | | the division of
those benefits pursuant to a Qualified Illinois | 14 | | Domestic Relations Order shall
not be deemed to be a | 15 | | diminishment, alienation, or impairment of those
benefits. The | 16 | | division of pension benefits is an allocation of property in
| 17 | | which each spouse has a species of common ownership.
| 18 | | (3) For purposes of distribution of property under this | 19 | | Section, all stock
options granted to either spouse after the | 20 | | marriage and before a judgment of
dissolution of marriage or | 21 | | declaration of invalidity of marriage, whether
vested or | 22 | | non-vested or whether their value is ascertainable, are | 23 | | presumed to
be marital property. This presumption of marital | 24 | | property is overcome by a
showing that the stock options were | 25 | | acquired by a method listed in subsection
(a) of this Section. | 26 | | The court shall allocate stock options between the
parties at |
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| 1 | | the time of the judgment of dissolution of marriage or | 2 | | declaration
of invalidity of marriage recognizing that the | 3 | | value of the stock options may
not be then determinable and | 4 | | that the actual division of the options may not
occur until a | 5 | | future date. In making the allocation between the parties, the
| 6 | | court shall consider, in addition to the factors set forth in | 7 | | subsection (d) of
this Section, the following:
| 8 | | (i) All circumstances underlying the grant of the stock | 9 | | option including
but not limited to whether the grant was | 10 | | for past, present, or future efforts,
or any combination | 11 | | thereof.
| 12 | | (ii) The length of time from the grant of the option to | 13 | | the time the
option is exercisable.
| 14 | | (b-5) As to any policy of life insurance insuring the life | 15 | | of either spouse, or any interest in such policy, that | 16 | | constitutes marital property, whether whole life, term life, | 17 | | group term life, universal life, or other form of life
| 18 | | insurance policy, and whether or not the value is | 19 | | ascertainable, the court shall allocate ownership, death | 20 | | benefits or the
right to assign death benefits, and the | 21 | | obligation for premium payments, if any, equitably between the | 22 | | parties at the
time of the judgment for dissolution or | 23 | | declaration of invalidity of marriage. | 24 | | (c) Commingled marital and non-marital property shall be | 25 | | treated in
the following manner, unless otherwise agreed by the | 26 | | spouses:
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| 1 | | (1) When marital and non-marital property are | 2 | | commingled by contributing
one estate of property into | 3 | | another resulting in a loss of identity of the
contributed | 4 | | property, the classification of the contributed property | 5 | | is
transmuted to the estate receiving the contribution, | 6 | | subject to the provisions
of paragraph (2) of this | 7 | | subsection; provided that if marital and non-marital
| 8 | | property are commingled into newly acquired property | 9 | | resulting in a loss
of identity of the contributing | 10 | | estates, the commingled property shall be
deemed | 11 | | transmuted to marital property, subject to the provisions | 12 | | of paragraph
(2) of this subsection.
| 13 | | (2) When one estate of property makes a contribution to | 14 | | another estate
of property, or when a spouse contributes | 15 | | personal effort to non-marital
property, the contributing | 16 | | estate shall be reimbursed from the estate receiving
the | 17 | | contribution notwithstanding any transmutation; provided, | 18 | | that no such
reimbursement shall be made with respect to a | 19 | | contribution which is not
retraceable by clear and | 20 | | convincing evidence, or was a gift, or, in the
case of a | 21 | | contribution of personal effort of a spouse to non-marital | 22 | | property,
unless the effort is significant and results in | 23 | | substantial appreciation
of the non-marital property. | 24 | | Personal effort of a spouse shall be deemed
a contribution | 25 | | by the marital estate. The court may provide for | 26 | | reimbursement
out of the marital property to be divided or |
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| 1 | | by imposing a lien against the
non-marital property which | 2 | | received the contribution.
| 3 | | (d) In a proceeding for dissolution of marriage or | 4 | | declaration of invalidity
of marriage, or in a proceeding for | 5 | | disposition of property following
dissolution of marriage by a | 6 | | court which lacked personal jurisdiction over the
absent spouse | 7 | | or lacked jurisdiction to dispose of the property, the court
| 8 | | shall assign each spouse's non-marital property to that spouse. | 9 | | It also shall
divide the marital property without regard to | 10 | | marital misconduct in just
proportions considering all | 11 | | relevant factors, including:
| 12 | | (1) the contribution of each party to the acquisition, | 13 | | preservation, or
increase or decrease in value of the | 14 | | marital or non-marital property, including
(i) any such | 15 | | decrease attributable to a payment deemed to have been an | 16 | | advance from the parties' marital estate under subsection | 17 | | (c-1)(2) of Section 501 and (ii) the contribution of a | 18 | | spouse as a homemaker or to the family unit;
| 19 | | (2) the dissipation by each party of the marital or | 20 | | non-marital property;
| 21 | | (3) the value of the property assigned to each spouse;
| 22 | | (4) the duration of the marriage;
| 23 | | (5) the relevant economic circumstances of each spouse | 24 | | when the division
of property is to become effective, | 25 | | including the desirability of awarding
the family home, or | 26 | | the right to live therein for reasonable periods, to the
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| 1 | | spouse having custody of the children;
| 2 | | (6) any obligations and rights arising from a prior | 3 | | marriage
of either party;
| 4 | | (7) any antenuptial agreement of the parties;
| 5 | | (8) the age, health, station, occupation, amount and | 6 | | sources of income,
vocational skills, employability, | 7 | | estate, liabilities, and needs of each of the
parties;
| 8 | | (9) the custodial provisions for any children;
| 9 | | (10) whether the apportionment is in lieu of or in | 10 | | addition to
maintenance;
| 11 | | (11) the reasonable opportunity of each spouse for | 12 | | future acquisition
of capital assets and income; and
| 13 | | (12) the tax consequences of the property division upon | 14 | | the
respective economic circumstances of the parties.
| 15 | | (e) Each spouse has a species of common ownership in the | 16 | | marital property
which vests at the time dissolution | 17 | | proceedings are commenced and continues
only during the | 18 | | pendency of the action. Any such interest in marital property
| 19 | | shall not encumber that property so as to restrict its | 20 | | transfer, assignment
or conveyance by the title holder unless | 21 | | such title holder is specifically
enjoined from making such | 22 | | transfer, assignment or conveyance.
| 23 | | (f) In a proceeding for dissolution of marriage or | 24 | | declaration of
invalidity of marriage or in a proceeding for | 25 | | disposition of property
following dissolution of marriage by a | 26 | | court that lacked personal
jurisdiction over the absent spouse |
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| 1 | | or lacked jurisdiction to dispose of
the property, the court, | 2 | | in determining the value of the marital and
non-marital | 3 | | property for purposes of dividing the property, shall value the
| 4 | | property as of the date of trial or some other date as close to | 5 | | the date
of trial as is practicable.
| 6 | | (g) The court if necessary to protect and promote the best | 7 | | interests of the
children may set aside a portion of the | 8 | | jointly or separately held
estates of the parties in a separate | 9 | | fund or trust for the support,
maintenance, education, physical | 10 | | and mental health, and general welfare of any minor, dependent,
| 11 | | or incompetent child of the parties. In making a determination | 12 | | under this
subsection, the court may consider, among other | 13 | | things, the conviction of a
party of any of the offenses set | 14 | | forth in Section 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, | 15 | | 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if | 16 | | the
victim is a
child of one or both of the parties, and there | 17 | | is a need for, and cost of,
care, healing and counseling for | 18 | | the child who is the victim of the crime.
| 19 | | (h) Unless specifically directed by a reviewing court, or | 20 | | upon good
cause shown, the court shall not on remand consider | 21 | | any increase or
decrease in the value of any "marital" or | 22 | | "non-marital" property occurring
since the assessment of such | 23 | | property at the original trial or hearing, but
shall use only | 24 | | that assessment made at the original trial or hearing.
| 25 | | (i) The court may make such judgments affecting the marital | 26 | | property
as may be just and may enforce such judgments by |
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| 1 | | ordering a sale of marital
property, with proceeds therefrom to | 2 | | be applied as determined by the court.
| 3 | | (j) After proofs have closed in the final hearing on all | 4 | | other issues
between the parties (or in conjunction with the | 5 | | final hearing, if all parties
so stipulate) and before judgment | 6 | | is entered, a party's petition for
contribution to fees and | 7 | | costs incurred in the proceeding shall be heard and
decided, in | 8 | | accordance with the following provisions:
| 9 | | (1) A petition for contribution, if not filed before | 10 | | the final hearing
on other issues between the parties, | 11 | | shall be filed no later than 30 days after
the closing of | 12 | | proofs in the final hearing or within such other period as | 13 | | the
court orders.
| 14 | | (2) Any award of contribution to one party from the | 15 | | other party shall be
based on the criteria for division of | 16 | | marital property under this Section 503
and, if maintenance | 17 | | has been awarded, on the criteria for an award of
| 18 | | maintenance under Section 504.
| 19 | | (3) The filing of a petition for contribution shall not | 20 | | be deemed to
constitute a waiver of the attorney-client | 21 | | privilege between the petitioning
party and current or | 22 | | former counsel; and such a waiver shall not constitute a
| 23 | | prerequisite to a hearing for contribution. If either | 24 | | party's presentation on
contribution, however, includes | 25 | | evidence within the scope of the
attorney-client | 26 | | privilege, the disclosure or disclosures shall be narrowly
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| 1 | | construed and shall not be deemed by the court to | 2 | | constitute a general waiver
of the privilege as to matters | 3 | | beyond the scope of the presentation.
| 4 | | (4) No finding on which a contribution award is based | 5 | | or denied shall be
asserted against counsel or former | 6 | | counsel for purposes of any hearing under
subsection (c) or | 7 | | (e) of Section 508.
| 8 | | (5) A contribution award (payable to either the | 9 | | petitioning
party or the party's counsel, or jointly, as | 10 | | the court determines) may be in
the form of either a set | 11 | | dollar amount or a percentage of fees and costs (or a
| 12 | | portion of fees and costs) to be subsequently agreed upon | 13 | | by the petitioning
party and counsel or, alternatively, | 14 | | thereafter determined in a hearing
pursuant to subsection | 15 | | (c) of Section 508 or previously or thereafter
determined | 16 | | in an independent proceeding under subsection (e) of | 17 | | Section
508.
| 18 | | (6) The changes to this Section 503 made by this | 19 | | amendatory Act of 1996
apply to cases pending on or after | 20 | | June 1, 1997, except as otherwise provided
in Section 508.
| 21 | | (Source: P.A. 95-374, eff. 1-1-08; 96-583, eff. 1-1-10.)
| 22 | | (750 ILCS 5/504) (from Ch. 40, par. 504)
| 23 | | Sec. 504. Maintenance.
| 24 | | (a) In a proceeding for dissolution of marriage or legal | 25 | | separation or
declaration of invalidity of marriage, or a |
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| 1 | | proceeding for maintenance
following dissolution of the | 2 | | marriage by a court which lacked personal
jurisdiction over the | 3 | | absent spouse, the court may grant a temporary or
permanent | 4 | | maintenance award for either spouse in amounts and for periods | 5 | | of
time as the court deems just, without regard to marital | 6 | | misconduct, in
gross or for fixed or indefinite periods of | 7 | | time, and the maintenance may
be paid from the income or | 8 | | property of the other spouse after consideration
of all | 9 | | relevant factors, including:
| 10 | | (1) the income and property of each party, including | 11 | | marital property
apportioned and non-marital property | 12 | | assigned to the party seeking maintenance;
| 13 | | (2) the needs of each party;
| 14 | | (3) the present and future earning capacity of each | 15 | | party;
| 16 | | (4) any impairment of the present and future earning | 17 | | capacity of the
party seeking maintenance due to that party | 18 | | devoting time to domestic
duties or having forgone or | 19 | | delayed education, training,
employment, or
career | 20 | | opportunities due to the marriage;
| 21 | | (5) the time necessary to enable the party seeking | 22 | | maintenance to
acquire appropriate education, training, | 23 | | and employment, and whether that
party is able to support | 24 | | himself or herself through appropriate employment
or is the | 25 | | custodian of a child making it appropriate that the | 26 | | custodian not
seek employment;
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| 1 | | (6) the standard of living established during the | 2 | | marriage;
| 3 | | (7) the duration of the marriage;
| 4 | | (8) the age and the physical and emotional condition of
| 5 | | both parties;
| 6 | | (9) the tax consequences of the property division upon | 7 | | the respective
economic circumstances of the parties;
| 8 | | (10) contributions and services by the party seeking | 9 | | maintenance to
the education, training, career or career | 10 | | potential, or license of the
other spouse;
| 11 | | (11) any valid agreement of the parties; and
| 12 | | (12) any other factor that the court expressly finds to | 13 | | be just and
equitable.
| 14 | | (b) (Blank).
| 15 | | (b-5) Any maintenance obligation including any unallocated | 16 | | maintenance and child support obligation, or any portion of any | 17 | | support obligation, that becomes due and remains unpaid shall | 18 | | accrue simple interest as set forth in Section 505 of this Act.
| 19 | | (b-7) Any new or existing maintenance order including any | 20 | | unallocated maintenance and child support order entered by the | 21 | | court under this Section shall be deemed to be a series of | 22 | | judgments against the person obligated to pay support | 23 | | thereunder. Each such judgment to be in the amount of each | 24 | | payment or installment of support and each such judgment to be | 25 | | deemed entered as of the date the corresponding payment or | 26 | | installment becomes due under the terms of the support order, |
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| 1 | | except no judgment shall arise as to any installment coming due | 2 | | after the termination of maintenance as provided by Section 510 | 3 | | of the Illinois Marriage and Dissolution of Marriage Act or the | 4 | | provisions of any order for maintenance. Each such judgment | 5 | | shall have the full force, effect and attributes of any other | 6 | | judgment of this State, including the ability to be enforced. A | 7 | | lien arises by operation of law against the real and personal | 8 | | property of the obligor for each installment of overdue support | 9 | | owed by the obligor. | 10 | | (c) The court may grant and enforce the payment of | 11 | | maintenance during
the pendency of an appeal as the court shall | 12 | | deem reasonable and proper.
| 13 | | (d) No maintenance shall accrue during the period in which | 14 | | a party is
imprisoned for failure to comply with the court's | 15 | | order for the payment of
such maintenance.
| 16 | | (e) When maintenance is to be paid through the clerk of the | 17 | | court in a
county of 1,000,000 inhabitants or less, the order | 18 | | shall direct the obligor
to pay to the clerk, in addition to | 19 | | the maintenance payments, all fees
imposed by the county board | 20 | | under paragraph (3) of subsection (u) of
Section 27.1 of the | 21 | | Clerks of Courts Act. Unless paid in cash or pursuant
to an | 22 | | order for withholding, the payment of the fee shall be by a | 23 | | separate
instrument from the support payment and shall be made | 24 | | to the order of
the Clerk.
| 25 | | (f) An award ordered by a court upon entry of a dissolution | 26 | | judgment or upon entry of an award of maintenance following a |
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| 1 | | reservation of maintenance in a dissolution judgment may be | 2 | | reasonably secured, in whole or in part, by life insurance on | 3 | | the
payor's life on terms as to which the parties agree, or, if | 4 | | they do not agree, on such terms determined by the court,
| 5 | | subject to the following: | 6 | | (1) With respect to existing life insurance, provided | 7 | | the court is apprised through evidence,
stipulation, or | 8 | | otherwise as to level of death benefits, premium, and other | 9 | | relevant
data and makes findings relative thereto, the | 10 | | court may allocate death benefits, the right
to assign | 11 | | death benefits, or the obligation for future premium | 12 | | payments between the
parties as it deems just. | 13 | | (2) To the extent the court determines that its award | 14 | | should be secured, in whole or in part,
by new life | 15 | | insurance on the payor's life, the court may only order: | 16 | | (i) that the payor cooperate on all appropriate | 17 | | steps for the payee to obtain
such new life insurance; | 18 | | and | 19 | | (ii) that the payee, at his or her sole option and | 20 | | expense, may obtain such new life
insurance on the | 21 | | payor's life up to a maximum level of death benefit | 22 | | coverage,
or descending death benefit coverage, as is | 23 | | set by the court, such level not to exceed a reasonable
| 24 | | amount in light of the court's award, with the payee or | 25 | | the
payee's designee being the beneficiary of such life | 26 | | insurance. |
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| 1 | | In determining the maximum level of death benefit coverage, the | 2 | | court shall take into account all relevant facts and | 3 | | circumstances, including the impact on access to life insurance | 4 | | by the maintenance payor. If in resolving any issues under | 5 | | paragraph (2) of this subsection (f) a court reviews any | 6 | | submitted or proposed application for new insurance on the life | 7 | | of a maintenance payor, the review shall be in camera. | 8 | | (3) A judgment shall expressly set forth that all death | 9 | | benefits paid under life insurance on
a payor's life | 10 | | maintained or obtained pursuant to this subsection to | 11 | | secure
maintenance are designated as excludable from the | 12 | | gross income of the
maintenance payee under Section | 13 | | 71(b)(1)(B) of the Internal Revenue Code, unless an
| 14 | | agreement or stipulation of the parties otherwise | 15 | | provides. | 16 | | (Source: P.A. 94-89, eff. 1-1-06.)
| 17 | | (750 ILCS 5/505) (from Ch. 40, par. 505)
| 18 | | Sec. 505. Child support; contempt; penalties.
| 19 | | (a) In a proceeding for dissolution of marriage, legal | 20 | | separation,
declaration of invalidity of marriage, a | 21 | | proceeding for child support
following dissolution of the | 22 | | marriage by a court which lacked personal
jurisdiction over the | 23 | | absent spouse, a proceeding for modification of a
previous | 24 | | order for child support under Section 510 of this Act, or any
| 25 | | proceeding authorized under Section 501 or 601 of this Act, the |
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| 1 | | court may
order either or both parents owing a duty of support | 2 | | to a child of the
marriage to pay an amount reasonable and | 3 | | necessary for his support, without
regard to marital | 4 | | misconduct. The duty of support owed to a child
includes the | 5 | | obligation to provide for the reasonable and necessary
| 6 | | physical, mental and emotional health needs of the child.
For | 7 | | purposes of this Section, the term "child" shall include any | 8 | | child under
age 18 and
any child under age 19 who is still | 9 | | attending high school.
| 10 | | (1) The Court shall determine the minimum amount of | 11 | | support by using the
following guidelines:
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12 | | Number of Children |
Percent of Supporting Party's |
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13 | | |
Net Income |
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14 | | 1 |
20% |
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15 | | 2 |
28% |
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16 | | 3 |
32% |
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17 | | 4 |
40% |
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18 | | 5 |
45% |
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19 | | 6 or more |
50% |
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20 | | (2) The above guidelines shall be applied in each case | 21 | | unless the court
makes a finding that application of the | 22 | | guidelines would be
inappropriate, after considering the | 23 | | best interests of the child in light of
evidence including | 24 | | but not limited to one or more of the following relevant
| 25 | | factors:
| 26 | | (a) the financial resources and needs of the child;
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| 1 | | (b) the financial resources and needs of the | 2 | | custodial parent;
| 3 | | (c) the standard of living the child would have | 4 | | enjoyed had the
marriage not been dissolved;
| 5 | | (d) the physical and emotional condition of the | 6 | | child, and his
educational needs; and
| 7 | | (e) the financial resources and needs of the | 8 | | non-custodial parent.
| 9 | | If the court deviates from the guidelines, the court's | 10 | | finding
shall state the amount of support that would have | 11 | | been required under the
guidelines, if determinable. The | 12 | | court shall include the reason or reasons for
the variance | 13 | | from the
guidelines.
| 14 | | (3) "Net income" is defined as the total of all income | 15 | | from all
sources, minus the following deductions:
| 16 | | (a) Federal income tax (properly calculated | 17 | | withholding or estimated
payments);
| 18 | | (b) State income tax (properly calculated | 19 | | withholding or estimated
payments);
| 20 | | (c) Social Security (FICA payments);
| 21 | | (d) Mandatory retirement contributions required by | 22 | | law or as a
condition of employment;
| 23 | | (e) Union dues;
| 24 | | (f) Dependent and individual | 25 | | health/hospitalization insurance premiums and life | 26 | | insurance premiums for life insurance ordered by the |
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| 1 | | court to reasonably secure child support or support | 2 | | ordered pursuant to Section 513, any such order to | 3 | | entail provisions on which the parties agree or, | 4 | | otherwise, in accordance with the limitations set | 5 | | forth in subsection 504(f)(1) and (2) ;
| 6 | | (g) Prior obligations of support or maintenance | 7 | | actually paid pursuant
to a court order;
| 8 | | (h) Expenditures for repayment of debts that | 9 | | represent reasonable and
necessary expenses for the | 10 | | production of income, medical expenditures
necessary | 11 | | to preserve life or health, reasonable expenditures | 12 | | for the
benefit of the child and the other parent, | 13 | | exclusive of gifts. The court
shall reduce net income | 14 | | in determining the minimum amount of support to be
| 15 | | ordered only for the period that such payments are due | 16 | | and shall enter an
order containing provisions for its | 17 | | self-executing modification upon
termination of such | 18 | | payment period;
| 19 | | (i) Foster care payments paid by the Department of | 20 | | Children and Family Services for providing licensed | 21 | | foster care to a foster child.
| 22 | | (4) In cases where the court order provides for
| 23 | | health/hospitalization insurance coverage pursuant to | 24 | | Section 505.2 of
this Act, the premiums for that insurance, | 25 | | or that portion of the premiums
for which the supporting | 26 | | party is responsible in the case of insurance
provided |
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| 1 | | through an employer's health insurance plan where
the | 2 | | employer pays a portion of the premiums, shall be | 3 | | subtracted
from net income in determining the minimum | 4 | | amount of support to be ordered.
| 5 | | (4.5) In a proceeding for child support following | 6 | | dissolution of the
marriage by a court that lacked personal | 7 | | jurisdiction over the absent spouse,
and in which the court | 8 | | is requiring payment of support for the period before
the | 9 | | date an order for current support is entered, there is a | 10 | | rebuttable
presumption
that the supporting party's net | 11 | | income for the prior period was the same as his
or her net | 12 | | income at the time the order for current support is | 13 | | entered.
| 14 | | (5) If the net income cannot be determined because of | 15 | | default or any
other reason, the court shall order support | 16 | | in an amount considered
reasonable in the particular case. | 17 | | The final order in all cases shall
state the support level | 18 | | in dollar amounts.
However, if the
court finds that the | 19 | | child support amount cannot be expressed exclusively as a
| 20 | | dollar amount because all or a portion of the payor's net | 21 | | income is uncertain
as to source, time of payment, or | 22 | | amount, the court may order a percentage
amount of support | 23 | | in addition to a specific dollar amount and enter
such | 24 | | other orders as may be necessary to determine and enforce, | 25 | | on a timely
basis, the applicable support ordered.
| 26 | | (6) If (i) the non-custodial parent was properly served |
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| 1 | | with a request
for
discovery of financial information | 2 | | relating to the non-custodial parent's
ability to
provide | 3 | | child support, (ii) the non-custodial parent failed to | 4 | | comply with the
request,
despite having been ordered to do | 5 | | so by the court, and (iii) the non-custodial
parent is not | 6 | | present at the hearing to determine support despite having
| 7 | | received
proper notice, then any relevant financial | 8 | | information concerning the
non-custodial parent's ability | 9 | | to provide child support that was obtained
pursuant to
| 10 | | subpoena and proper notice shall be admitted into evidence | 11 | | without the need to
establish any further foundation for | 12 | | its admission.
| 13 | | (a-5) In an action to enforce an order for support based on | 14 | | the
respondent's failure
to make support payments as required | 15 | | by the order, notice of proceedings to
hold the respondent in | 16 | | contempt for that failure may be served on the
respondent by | 17 | | personal service or by regular mail addressed to the | 18 | | respondent's
last known address. The respondent's last known | 19 | | address may be determined from
records of the clerk of the | 20 | | court, from the Federal Case Registry of Child
Support Orders, | 21 | | or by any other reasonable means.
| 22 | | (b) Failure of either parent to comply with an order to pay | 23 | | support shall
be punishable as in other cases of contempt. In | 24 | | addition to other
penalties provided by law the Court may, | 25 | | after finding the parent guilty
of contempt, order that the | 26 | | parent be:
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| 1 | | (1) placed on probation with such conditions of | 2 | | probation as the Court
deems advisable;
| 3 | | (2) sentenced to periodic imprisonment for a period not | 4 | | to exceed 6
months; provided, however, that the Court may | 5 | | permit the parent to be
released for periods of time during | 6 | | the day or night to:
| 7 | | (A) work; or
| 8 | | (B) conduct a business or other self-employed | 9 | | occupation.
| 10 | | The Court may further order any part or all of the earnings | 11 | | of a parent
during a sentence of periodic imprisonment paid to | 12 | | the Clerk of the Circuit
Court or to the parent having custody | 13 | | or to the guardian having custody
of the children of the | 14 | | sentenced parent for the support of said
children until further | 15 | | order of the Court.
| 16 | | If there is a unity of interest and ownership sufficient to | 17 | | render no
financial separation between a non-custodial parent | 18 | | and another person or
persons or business entity, the court may | 19 | | pierce the ownership veil of the
person, persons, or business | 20 | | entity to discover assets of the non-custodial
parent held in | 21 | | the name of that person, those persons, or that business | 22 | | entity.
The following circumstances are sufficient to | 23 | | authorize a court to order
discovery of the assets of a person, | 24 | | persons, or business entity and to compel
the application of | 25 | | any discovered assets toward payment on the judgment for
| 26 | | support:
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| 1 | | (1) the non-custodial parent and the person, persons, | 2 | | or business entity
maintain records together.
| 3 | | (2) the non-custodial parent and the person, persons, | 4 | | or business entity
fail to maintain an arms length | 5 | | relationship between themselves with regard to
any assets.
| 6 | | (3) the non-custodial parent transfers assets to the | 7 | | person, persons,
or business entity with the intent to | 8 | | perpetrate a fraud on the custodial
parent.
| 9 | | With respect to assets which
are real property, no order | 10 | | entered under this paragraph shall affect the
rights of bona | 11 | | fide purchasers, mortgagees, judgment creditors, or other lien
| 12 | | holders who acquire their interests in the property prior to | 13 | | the time a notice
of lis pendens pursuant to the Code of Civil | 14 | | Procedure or a copy of the order
is placed of record in the | 15 | | office of the recorder of deeds for the county in
which the | 16 | | real property is located.
| 17 | | The court may also order in cases where the parent is 90 | 18 | | days or more
delinquent in payment of support or has been | 19 | | adjudicated in arrears in an
amount equal to 90 days obligation | 20 | | or more, that the parent's Illinois driving
privileges be | 21 | | suspended until the court
determines that the parent is in | 22 | | compliance with the order of support.
The court may also order | 23 | | that the parent be issued a family financial
responsibility | 24 | | driving permit that would allow limited driving privileges for
| 25 | | employment and medical purposes in accordance with Section | 26 | | 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit |
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| 1 | | court shall certify the order
suspending the driving privileges | 2 | | of the parent or granting the issuance of a
family financial | 3 | | responsibility driving permit to the Secretary of State on
| 4 | | forms prescribed by the Secretary. Upon receipt of the | 5 | | authenticated
documents, the Secretary of State shall suspend | 6 | | the parent's driving privileges
until further order of the | 7 | | court and shall, if ordered by the court, subject to
the | 8 | | provisions of Section 7-702.1 of the Illinois Vehicle Code, | 9 | | issue a family
financial responsibility driving permit to the | 10 | | parent.
| 11 | | In addition to the penalties or punishment that may be | 12 | | imposed under this
Section, any person whose conduct | 13 | | constitutes a violation of Section 15 of the
Non-Support | 14 | | Punishment Act may be prosecuted under that Act, and a person
| 15 | | convicted under that Act may be sentenced in accordance with | 16 | | that Act. The
sentence may include but need not be limited to a | 17 | | requirement that the person
perform community service under | 18 | | Section 50 of that Act or participate in a work
alternative | 19 | | program under Section 50 of that Act. A person may not be | 20 | | required
to participate in a work alternative program under | 21 | | Section 50 of that Act if
the person is currently participating | 22 | | in a work program pursuant to Section
505.1 of this Act.
| 23 | | A support obligation, or any portion of a support | 24 | | obligation, which becomes
due and remains unpaid as of the end | 25 | | of each month, excluding the child support that was due for | 26 | | that month to the extent that it was not paid in that month, |
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| 1 | | shall accrue simple interest as set forth in Section 12-109 of | 2 | | the Code of Civil Procedure.
An order for support entered or | 3 | | modified on or after January 1, 2006 shall
contain a statement | 4 | | that a support obligation required under the order, or any
| 5 | | portion of a support obligation required under the order, that | 6 | | becomes due and
remains unpaid as of the end of each month, | 7 | | excluding the child support that was due for that month to the | 8 | | extent that it was not paid in that month, shall accrue simple | 9 | | interest as set forth in Section 12-109 of the Code of Civil | 10 | | Procedure. Failure to include the statement in the order for | 11 | | support does
not affect the validity of the order or the | 12 | | accrual of interest as provided in
this Section.
| 13 | | (c) A one-time charge of 20% is imposable upon the amount | 14 | | of
past-due child support owed on July 1, 1988 which has | 15 | | accrued under a
support order entered by the court. The charge | 16 | | shall be imposed in
accordance with the provisions of Section | 17 | | 10-21 of the Illinois Public Aid
Code and shall be enforced by | 18 | | the court upon petition.
| 19 | | (d) Any new or existing support order entered by the court
| 20 | | under this Section shall be deemed to be a series of judgments | 21 | | against the
person obligated to pay support thereunder, each | 22 | | such judgment to be in the
amount of each payment or | 23 | | installment of support and each such judgment to
be deemed | 24 | | entered as of the date the corresponding payment or installment
| 25 | | becomes due under the terms of the support order. Each such | 26 | | judgment shall
have the full force, effect and attributes of |
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| 1 | | any other judgment of this
State, including the ability to be | 2 | | enforced.
A lien arises by operation of law against the real | 3 | | and personal property of
the noncustodial parent for each | 4 | | installment of overdue support owed by the
noncustodial parent.
| 5 | | (e) When child support is to be paid through the clerk of | 6 | | the court in a
county of 1,000,000 inhabitants or less, the | 7 | | order shall direct the obligor
to pay to the clerk, in addition | 8 | | to the child support payments, all fees
imposed by the county | 9 | | board under paragraph (3) of subsection (u) of
Section 27.1 of | 10 | | the Clerks of Courts Act. Unless paid in cash or pursuant to
an | 11 | | order for withholding, the payment of the fee shall be by a | 12 | | separate
instrument from the support payment and shall be made | 13 | | to the order of the
Clerk.
| 14 | | (f) All orders for support, when entered or
modified, shall | 15 | | include a provision requiring the obligor to notify
the court | 16 | | and, in cases in which a party is receiving child and spouse
| 17 | | services under Article X of the Illinois Public Aid Code, the
| 18 | | Department of Healthcare and Family Services, within 7 days, | 19 | | (i) of the name and address
of any new employer of the obligor, | 20 | | (ii) whether the obligor has access to
health insurance | 21 | | coverage through the employer or other group coverage and,
if | 22 | | so, the policy name and number and the names of persons covered | 23 | | under
the policy, and (iii) of any new residential or mailing | 24 | | address or telephone
number of the non-custodial parent. In any | 25 | | subsequent action to enforce a
support order, upon a sufficient | 26 | | showing that a diligent effort has been made
to ascertain the |
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| 1 | | location of the non-custodial parent, service of process or
| 2 | | provision of notice necessary in the case may be made at the | 3 | | last known
address of the non-custodial parent in any manner | 4 | | expressly provided by the
Code of Civil Procedure or this Act, | 5 | | which service shall be sufficient for
purposes of due process.
| 6 | | (g) An order for support shall include a date on which the | 7 | | current
support obligation terminates. The termination date | 8 | | shall be no earlier than
the date on which the child covered by | 9 | | the order will attain the age of
18. However, if the child will | 10 | | not graduate from high school until after
attaining the age of | 11 | | 18, then the termination date shall be no earlier than the
| 12 | | earlier of the date on which the child's high school graduation | 13 | | will occur or
the date on which the child will attain the age | 14 | | of 19. The order for support
shall state that the termination | 15 | | date does not apply to any arrearage that may
remain unpaid on | 16 | | that date. Nothing in this subsection shall be construed to
| 17 | | prevent the court from modifying the order or terminating the | 18 | | order in the
event the child is otherwise emancipated.
| 19 | | (g-5) If there is an unpaid arrearage or delinquency (as | 20 | | those terms are defined in the Income Withholding for Support | 21 | | Act) equal to at least one month's support obligation on the | 22 | | termination date stated in the order for support or, if there | 23 | | is no termination date stated in the order, on the date the | 24 | | child attains the age of majority or is otherwise emancipated, | 25 | | the periodic amount required to be paid for current support of | 26 | | that child immediately prior to that date shall automatically |
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| 1 | | continue to be an obligation, not as current support but as | 2 | | periodic payment toward satisfaction of the unpaid arrearage or | 3 | | delinquency. That periodic payment shall be in addition to any | 4 | | periodic payment previously required for satisfaction of the | 5 | | arrearage or delinquency. The total periodic amount to be paid | 6 | | toward satisfaction of the arrearage or delinquency may be | 7 | | enforced and collected by any method provided by law for | 8 | | enforcement and collection of child support, including but not | 9 | | limited to income withholding under the Income Withholding for | 10 | | Support Act. Each order for support entered or modified on or | 11 | | after the effective date of this amendatory Act of the 93rd | 12 | | General Assembly must contain a statement notifying the parties | 13 | | of the requirements of this subsection. Failure to include the | 14 | | statement in the order for support does not affect the validity | 15 | | of the order or the operation of the provisions of this | 16 | | subsection with regard to the order. This subsection shall not | 17 | | be construed to prevent or affect the establishment or | 18 | | modification of an order for support of a minor child or the | 19 | | establishment or modification of an order for support of a | 20 | | non-minor child or educational expenses under Section 513 of | 21 | | this Act.
| 22 | | (h) An order entered under this Section shall include a | 23 | | provision requiring
the obligor to report to the obligee and to | 24 | | the clerk of court within 10 days
each time the obligor obtains | 25 | | new employment, and each time the obligor's
employment is | 26 | | terminated for any reason. The report shall be in writing and
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| 1 | | shall, in the case of new employment, include the name and | 2 | | address of the new
employer. Failure to report new employment | 3 | | or the termination of current
employment, if coupled with | 4 | | nonpayment of support for a period in excess of 60
days, is | 5 | | indirect criminal contempt. For any obligor arrested for | 6 | | failure to
report new employment bond shall be set in the | 7 | | amount of the child support that
should have been paid during | 8 | | the period of unreported employment. An order
entered under | 9 | | this Section shall also include a provision requiring the | 10 | | obligor
and obligee parents to advise each other of a change in | 11 | | residence within 5 days
of the change except when the court | 12 | | finds that the physical, mental, or
emotional health of a party | 13 | | or that of a child, or both, would be
seriously endangered by | 14 | | disclosure of the party's address.
| 15 | | (i) The court does not lose the powers of contempt, | 16 | | driver's license
suspension, or other child support | 17 | | enforcement mechanisms, including, but
not limited to, | 18 | | criminal prosecution as set forth in this Act, upon the
| 19 | | emancipation of the minor child or children.
| 20 | | (Source: P.A. 95-331, eff. 8-21-07; 96-1134, eff. 7-21-10.)
| 21 | | (750 ILCS 5/510) (from Ch. 40, par. 510)
| 22 | | Sec. 510. Modification and termination of provisions for
| 23 | | maintenance, support, educational expenses, and property | 24 | | disposition.
| 25 | | (a) Except as otherwise provided in paragraph (f) of |
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| 1 | | Section 502 and
in subsection (b), clause (3) of Section 505.2, | 2 | | the provisions of any
judgment respecting maintenance or | 3 | | support may be modified only as to
installments accruing | 4 | | subsequent to due notice by the moving party of the
filing of | 5 | | the motion for modification. An order for child
support may be | 6 | | modified as follows:
| 7 | | (1) upon a showing of a substantial change in | 8 | | circumstances; and
| 9 | | (2) without the necessity of showing a substantial | 10 | | change in
circumstances, as follows:
| 11 | | (A) upon a showing of an inconsistency of at least | 12 | | 20%, but no
less than $10 per month, between the amount | 13 | | of the existing order and the
amount of child support | 14 | | that results from application of the guidelines
| 15 | | specified in Section 505 of this Act unless the | 16 | | inconsistency is due to the
fact that the amount of the | 17 | | existing order resulted from a deviation from the
| 18 | | guideline amount and there has not been a change in the | 19 | | circumstances that
resulted in that deviation; or
| 20 | | (B) Upon a showing of a need to provide for the | 21 | | health care needs
of the child under the order through | 22 | | health insurance or other means. In no
event shall the | 23 | | eligibility for or receipt of medical assistance be | 24 | | considered
to meet the need to provide for the child's | 25 | | health care needs.
| 26 | | The provisions of subparagraph (a)(2)(A) shall apply only
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| 1 | | in cases in which a party is receiving child support
| 2 | | enforcement services from the Department of Healthcare and | 3 | | Family Services under
Article X of the Illinois Public Aid | 4 | | Code, and only when at least 36
months have elapsed since the | 5 | | order for child support was entered or last
modified.
| 6 | | (a-5) An order for maintenance may be modified or | 7 | | terminated only upon a
showing of a substantial change in | 8 | | circumstances. In all such proceedings, as
well as in | 9 | | proceedings in which maintenance is being reviewed, the court | 10 | | shall
consider the applicable factors set forth in subsection | 11 | | (a) of Section 504 and
the following factors:
| 12 | | (1) any change in the employment status of either party | 13 | | and whether the
change has been made
in good faith;
| 14 | | (2) the efforts, if any, made by the party receiving | 15 | | maintenance to become
self-supporting, and
the | 16 | | reasonableness of the efforts where they are appropriate;
| 17 | | (3) any impairment of the present and future earning | 18 | | capacity of either
party;
| 19 | | (4) the tax consequences of the maintenance payments | 20 | | upon the respective
economic
circumstances of the parties;
| 21 | | (5) the duration of the maintenance payments | 22 | | previously paid (and
remaining to be paid) relative
to the | 23 | | length of the marriage;
| 24 | | (6) the property, including retirement benefits, | 25 | | awarded to each party
under the judgment of
dissolution of | 26 | | marriage, judgment of legal separation, or judgment of
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| 1 | | declaration of invalidity of
marriage and the present | 2 | | status of the property;
| 3 | | (7) the increase or decrease in each party's income | 4 | | since the prior
judgment or order from which
a review, | 5 | | modification, or termination is being sought;
| 6 | | (8) the property acquired and currently owned by each | 7 | | party after the
entry of the judgment of
dissolution of | 8 | | marriage, judgment of legal separation, or judgment of
| 9 | | declaration of invalidity of
marriage; and
| 10 | | (9) any other factor that the court expressly finds to | 11 | | be just and
equitable.
| 12 | | (b) The provisions as to property disposition may not be | 13 | | revoked or
modified,
unless the court finds the existence of | 14 | | conditions that justify the
reopening of a judgment under the | 15 | | laws of this State.
| 16 | | (c) Unless otherwise agreed by the parties in a written | 17 | | agreement
set forth in the judgment or otherwise approved by | 18 | | the court, the obligation
to pay future maintenance is | 19 | | terminated upon the death of either party, or
the remarriage of | 20 | | the party receiving maintenance, or if the party
receiving | 21 | | maintenance cohabits with another person on a resident,
| 22 | | continuing conjugal basis. Any obligation of a payor party for | 23 | | premium payments respecting insurance on such party's life | 24 | | imposed under subsection (f) of Section 504 is also terminated | 25 | | on the occurrence of any of the foregoing events, unless | 26 | | otherwise agreed by the parties. Any termination of an |
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| 1 | | obligation for maintenance as a result of the death of the | 2 | | payor party, however, shall be inapplicable to any right of the | 3 | | other party or such other party's designee to receive a death | 4 | | benefit under such insurance on the payor party's life.
| 5 | | (d) Unless otherwise provided in this Act, or as agreed in | 6 | | writing or
expressly
provided in the
judgment, provisions for | 7 | | the support of a child are terminated by emancipation
of the
| 8 | | child, or if the child has attained the age of 18 and is still | 9 | | attending
high school,
provisions for the support of the child | 10 | | are terminated upon the date that the
child
graduates from high | 11 | | school or the date the child attains the age of 19,
whichever | 12 | | is
earlier, but not by the death of a parent obligated to | 13 | | support or educate the
child.
An existing obligation to pay for | 14 | | support
or educational expenses, or both, is not terminated by | 15 | | the death of a
parent. When a parent obligated to pay support | 16 | | or educational
expenses, or both, dies, the amount of support | 17 | | or educational expenses, or
both, may be enforced, modified, | 18 | | revoked or commuted to a lump sum payment,
as equity may | 19 | | require, and that determination may be provided for at the
time | 20 | | of the dissolution of the marriage or thereafter.
| 21 | | (e) The right to petition for support or educational | 22 | | expenses, or both,
under Sections 505 and 513 is not | 23 | | extinguished by the death of a parent.
Upon a petition filed | 24 | | before or after a parent's death, the court may award
sums of | 25 | | money out of the decedent's estate for the child's support or
| 26 | | educational expenses, or both, as equity may require. The time |
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| 1 | | within
which a claim may be filed against the estate of a | 2 | | decedent under Sections
505 and 513 and subsection (d) and this | 3 | | subsection shall be governed by the
provisions of the Probate | 4 | | Act of 1975, as a barrable, noncontingent claim.
| 5 | | (f) A petition to modify or terminate child support, | 6 | | custody, or
visitation shall not delay any child support | 7 | | enforcement litigation or
supplementary proceeding on behalf | 8 | | of the obligee, including, but not limited
to, a petition for a | 9 | | rule to show cause, for non-wage garnishment, or for a
| 10 | | restraining order.
| 11 | | (Source: P.A. 95-331, eff. 8-21-07.)
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