Full Text of SB3775 97th General Assembly
SB3775 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB3775 Introduced 2/10/2012, by Sen. Michael W. Frerichs SYNOPSIS AS INTRODUCED: | | 750 ILCS 5/505 | from Ch. 40, par. 505 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Makes
a technical
change in a Section concerning the setting of child support.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Marriage and Dissolution of | 5 | | Marriage Act is amended by changing Section 505 as follows:
| 6 | | (750 ILCS 5/505) (from Ch. 40, par. 505)
| 7 | | Sec. 505. Child support; contempt; penalties.
| 8 | | (a) In a proceeding for dissolution of marriage, legal | 9 | | separation,
declaration of invalidity of marriage, a | 10 | | proceeding for child support
following dissolution of the the | 11 | | marriage by a court which lacked personal
jurisdiction over the | 12 | | absent spouse, a proceeding for modification of a
previous | 13 | | order for child support under Section 510 of this Act, or any
| 14 | | proceeding authorized under Section 501 or 601 of this Act, the | 15 | | court may
order either or both parents owing a duty of support | 16 | | to a child of the
marriage to pay an amount reasonable and | 17 | | necessary for his support, without
regard to marital | 18 | | misconduct. The duty of support owed to a child
includes the | 19 | | obligation to provide for the reasonable and necessary
| 20 | | physical, mental and emotional health needs of the child.
For | 21 | | purposes of this Section, the term "child" shall include any | 22 | | child under
age 18 and
any child under age 19 who is still | 23 | | attending high school.
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| 1 | | (1) The Court shall determine the minimum amount of | 2 | | support by using the
following guidelines:
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3 | | Number of Children |
Percent of Supporting Party's |
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4 | | |
Net Income |
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5 | | 1 |
20% |
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6 | | 2 |
28% |
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7 | | 3 |
32% |
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8 | | 4 |
40% |
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9 | | 5 |
45% |
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10 | | 6 or more |
50% |
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11 | | (2) The above guidelines shall be applied in each case | 12 | | unless the court
makes a finding that application of the | 13 | | guidelines would be
inappropriate, after considering the | 14 | | best interests of the child in light of
evidence including | 15 | | but not limited to one or more of the following relevant
| 16 | | factors:
| 17 | | (a) the financial resources and needs of the child;
| 18 | | (b) the financial resources and needs of the | 19 | | custodial parent;
| 20 | | (c) the standard of living the child would have | 21 | | enjoyed had the
marriage not been dissolved;
| 22 | | (d) the physical and emotional condition of the | 23 | | child, and his
educational needs; and
| 24 | | (e) the financial resources and needs of the | 25 | | non-custodial parent.
| 26 | | If the court deviates from the guidelines, the court's |
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| 1 | | finding
shall state the amount of support that would have | 2 | | been required under the
guidelines, if determinable. The | 3 | | court shall include the reason or reasons for
the variance | 4 | | from the
guidelines.
| 5 | | (3) "Net income" is defined as the total of all income | 6 | | from all
sources, minus the following deductions:
| 7 | | (a) Federal income tax (properly calculated | 8 | | withholding or estimated
payments);
| 9 | | (b) State income tax (properly calculated | 10 | | withholding or estimated
payments);
| 11 | | (c) Social Security (FICA payments);
| 12 | | (d) Mandatory retirement contributions required by | 13 | | law or as a
condition of employment;
| 14 | | (e) Union dues;
| 15 | | (f) Dependent and individual | 16 | | health/hospitalization insurance premiums and life | 17 | | insurance premiums for life insurance ordered by the | 18 | | court to reasonably secure child support or support | 19 | | ordered pursuant to Section 513, any such order to | 20 | | entail provisions on which the parties agree or, | 21 | | otherwise, in accordance with the limitations set | 22 | | forth in subsection 504(f)(1) and (2);
| 23 | | (g) Prior obligations of support or maintenance | 24 | | actually paid pursuant
to a court order;
| 25 | | (h) Expenditures for repayment of debts that | 26 | | represent reasonable and
necessary expenses for the |
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| 1 | | production of income, medical expenditures
necessary | 2 | | to preserve life or health, reasonable expenditures | 3 | | for the
benefit of the child and the other parent, | 4 | | exclusive of gifts. The court
shall reduce net income | 5 | | in determining the minimum amount of support to be
| 6 | | ordered only for the period that such payments are due | 7 | | and shall enter an
order containing provisions for its | 8 | | self-executing modification upon
termination of such | 9 | | payment period;
| 10 | | (i) Foster care payments paid by the Department of | 11 | | Children and Family Services for providing licensed | 12 | | foster care to a foster child.
| 13 | | (4) In cases where the court order provides for
| 14 | | health/hospitalization insurance coverage pursuant to | 15 | | Section 505.2 of
this Act, the premiums for that insurance, | 16 | | or that portion of the premiums
for which the supporting | 17 | | party is responsible in the case of insurance
provided | 18 | | through an employer's health insurance plan where
the | 19 | | employer pays a portion of the premiums, shall be | 20 | | subtracted
from net income in determining the minimum | 21 | | amount of support to be ordered.
| 22 | | (4.5) In a proceeding for child support following | 23 | | dissolution of the
marriage by a court that lacked personal | 24 | | jurisdiction over the absent spouse,
and in which the court | 25 | | is requiring payment of support for the period before
the | 26 | | date an order for current support is entered, there is a |
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| 1 | | rebuttable
presumption
that the supporting party's net | 2 | | income for the prior period was the same as his
or her net | 3 | | income at the time the order for current support is | 4 | | entered.
| 5 | | (5) If the net income cannot be determined because of | 6 | | default or any
other reason, the court shall order support | 7 | | in an amount considered
reasonable in the particular case. | 8 | | The final order in all cases shall
state the support level | 9 | | in dollar amounts.
However, if the
court finds that the | 10 | | child support amount cannot be expressed exclusively as a
| 11 | | dollar amount because all or a portion of the payor's net | 12 | | income is uncertain
as to source, time of payment, or | 13 | | amount, the court may order a percentage
amount of support | 14 | | in addition to a specific dollar amount and enter
such | 15 | | other orders as may be necessary to determine and enforce, | 16 | | on a timely
basis, the applicable support ordered.
| 17 | | (6) If (i) the non-custodial parent was properly served | 18 | | with a request
for
discovery of financial information | 19 | | relating to the non-custodial parent's
ability to
provide | 20 | | child support, (ii) the non-custodial parent failed to | 21 | | comply with the
request,
despite having been ordered to do | 22 | | so by the court, and (iii) the non-custodial
parent is not | 23 | | present at the hearing to determine support despite having
| 24 | | received
proper notice, then any relevant financial | 25 | | information concerning the
non-custodial parent's ability | 26 | | to provide child support that was obtained
pursuant to
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| 1 | | subpoena and proper notice shall be admitted into evidence | 2 | | without the need to
establish any further foundation for | 3 | | its admission.
| 4 | | (a-5) In an action to enforce an order for support based on | 5 | | the
respondent's failure
to make support payments as required | 6 | | by the order, notice of proceedings to
hold the respondent in | 7 | | contempt for that failure may be served on the
respondent by | 8 | | personal service or by regular mail addressed to the | 9 | | respondent's
last known address. The respondent's last known | 10 | | address may be determined from
records of the clerk of the | 11 | | court, from the Federal Case Registry of Child
Support Orders, | 12 | | or by any other reasonable means.
| 13 | | (b) Failure of either parent to comply with an order to pay | 14 | | support shall
be punishable as in other cases of contempt. In | 15 | | addition to other
penalties provided by law the Court may, | 16 | | after finding the parent guilty
of contempt, order that the | 17 | | parent be:
| 18 | | (1) placed on probation with such conditions of | 19 | | probation as the Court
deems advisable;
| 20 | | (2) sentenced to periodic imprisonment for a period not | 21 | | to exceed 6
months; provided, however, that the Court may | 22 | | permit the parent to be
released for periods of time during | 23 | | the day or night to:
| 24 | | (A) work; or
| 25 | | (B) conduct a business or other self-employed | 26 | | occupation.
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| 1 | | The Court may further order any part or all of the earnings | 2 | | of a parent
during a sentence of periodic imprisonment paid to | 3 | | the Clerk of the Circuit
Court or to the parent having custody | 4 | | or to the guardian having custody
of the children of the | 5 | | sentenced parent for the support of said
children until further | 6 | | order of the Court.
| 7 | | If there is a unity of interest and ownership sufficient to | 8 | | render no
financial separation between a non-custodial parent | 9 | | and another person or
persons or business entity, the court may | 10 | | pierce the ownership veil of the
person, persons, or business | 11 | | entity to discover assets of the non-custodial
parent held in | 12 | | the name of that person, those persons, or that business | 13 | | entity.
The following circumstances are sufficient to | 14 | | authorize a court to order
discovery of the assets of a person, | 15 | | persons, or business entity and to compel
the application of | 16 | | any discovered assets toward payment on the judgment for
| 17 | | support:
| 18 | | (1) the non-custodial parent and the person, persons, | 19 | | or business entity
maintain records together.
| 20 | | (2) the non-custodial parent and the person, persons, | 21 | | or business entity
fail to maintain an arms length | 22 | | relationship between themselves with regard to
any assets.
| 23 | | (3) the non-custodial parent transfers assets to the | 24 | | person, persons,
or business entity with the intent to | 25 | | perpetrate a fraud on the custodial
parent.
| 26 | | With respect to assets which
are real property, no order |
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| 1 | | entered under this paragraph shall affect the
rights of bona | 2 | | fide purchasers, mortgagees, judgment creditors, or other lien
| 3 | | holders who acquire their interests in the property prior to | 4 | | the time a notice
of lis pendens pursuant to the Code of Civil | 5 | | Procedure or a copy of the order
is placed of record in the | 6 | | office of the recorder of deeds for the county in
which the | 7 | | real property is located.
| 8 | | The court may also order in cases where the parent is 90 | 9 | | days or more
delinquent in payment of support or has been | 10 | | adjudicated in arrears in an
amount equal to 90 days obligation | 11 | | or more, that the parent's Illinois driving
privileges be | 12 | | suspended until the court
determines that the parent is in | 13 | | compliance with the order of support.
The court may also order | 14 | | that the parent be issued a family financial
responsibility | 15 | | driving permit that would allow limited driving privileges for
| 16 | | employment and medical purposes in accordance with Section | 17 | | 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit | 18 | | court shall certify the order
suspending the driving privileges | 19 | | of the parent or granting the issuance of a
family financial | 20 | | responsibility driving permit to the Secretary of State on
| 21 | | forms prescribed by the Secretary. Upon receipt of the | 22 | | authenticated
documents, the Secretary of State shall suspend | 23 | | the parent's driving privileges
until further order of the | 24 | | court and shall, if ordered by the court, subject to
the | 25 | | provisions of Section 7-702.1 of the Illinois Vehicle Code, | 26 | | issue a family
financial responsibility driving permit to the |
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| 1 | | parent.
| 2 | | In addition to the penalties or punishment that may be | 3 | | imposed under this
Section, any person whose conduct | 4 | | constitutes a violation of Section 15 of the
Non-Support | 5 | | Punishment Act may be prosecuted under that Act, and a person
| 6 | | convicted under that Act may be sentenced in accordance with | 7 | | that Act. The
sentence may include but need not be limited to a | 8 | | requirement that the person
perform community service under | 9 | | Section 50 of that Act or participate in a work
alternative | 10 | | program under Section 50 of that Act. A person may not be | 11 | | required
to participate in a work alternative program under | 12 | | Section 50 of that Act if
the person is currently participating | 13 | | in a work program pursuant to Section
505.1 of this Act.
| 14 | | A support obligation, or any portion of a support | 15 | | obligation, which becomes
due and remains unpaid as of the end | 16 | | of each month, excluding the child support that was due for | 17 | | that month to the extent that it was not paid in that month, | 18 | | shall accrue simple interest as set forth in Section 12-109 of | 19 | | the Code of Civil Procedure.
An order for support entered or | 20 | | modified on or after January 1, 2006 shall
contain a statement | 21 | | that a support obligation required under the order, or any
| 22 | | portion of a support obligation required under the order, that | 23 | | becomes due and
remains unpaid as of the end of each month, | 24 | | excluding the child support that was due for that month to the | 25 | | extent that it was not paid in that month, shall accrue simple | 26 | | interest as set forth in Section 12-109 of the Code of Civil |
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| 1 | | Procedure. Failure to include the statement in the order for | 2 | | support does
not affect the validity of the order or the | 3 | | accrual of interest as provided in
this Section.
| 4 | | (c) A one-time charge of 20% is imposable upon the amount | 5 | | of
past-due child support owed on July 1, 1988 which has | 6 | | accrued under a
support order entered by the court. The charge | 7 | | shall be imposed in
accordance with the provisions of Section | 8 | | 10-21 of the Illinois Public Aid
Code and shall be enforced by | 9 | | the court upon petition.
| 10 | | (d) Any new or existing support order entered by the court
| 11 | | under this Section shall be deemed to be a series of judgments | 12 | | against the
person obligated to pay support thereunder, each | 13 | | such judgment to be in the
amount of each payment or | 14 | | installment of support and each such judgment to
be deemed | 15 | | entered as of the date the corresponding payment or installment
| 16 | | becomes due under the terms of the support order. Each such | 17 | | judgment shall
have the full force, effect and attributes of | 18 | | any other judgment of this
State, including the ability to be | 19 | | enforced.
Notwithstanding any other State or local law to the | 20 | | contrary, a lien arises by operation of law against the real | 21 | | and personal property of
the noncustodial parent for each | 22 | | installment of overdue support owed by the
noncustodial parent.
| 23 | | (e) When child support is to be paid through the clerk of | 24 | | the court in a
county of 1,000,000 inhabitants or less, the | 25 | | order shall direct the obligor
to pay to the clerk, in addition | 26 | | to the child support payments, all fees
imposed by the county |
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| 1 | | board under paragraph (3) of subsection (u) of
Section 27.1 of | 2 | | the Clerks of Courts Act. Unless paid in cash or pursuant to
an | 3 | | order for withholding, the payment of the fee shall be by a | 4 | | separate
instrument from the support payment and shall be made | 5 | | to the order of the
Clerk.
| 6 | | (f) All orders for support, when entered or
modified, shall | 7 | | include a provision requiring the obligor to notify
the court | 8 | | and, in cases in which a party is receiving child and spouse
| 9 | | services under Article X of the Illinois Public Aid Code, the
| 10 | | Department of Healthcare and Family Services, within 7 days, | 11 | | (i) of the name and address
of any new employer of the obligor, | 12 | | (ii) whether the obligor has access to
health insurance | 13 | | coverage through the employer or other group coverage and,
if | 14 | | so, the policy name and number and the names of persons covered | 15 | | under
the policy, and (iii) of any new residential or mailing | 16 | | address or telephone
number of the non-custodial parent. In any | 17 | | subsequent action to enforce a
support order, upon a sufficient | 18 | | showing that a diligent effort has been made
to ascertain the | 19 | | location of the non-custodial parent, service of process or
| 20 | | provision of notice necessary in the case may be made at the | 21 | | last known
address of the non-custodial parent in any manner | 22 | | expressly provided by the
Code of Civil Procedure or this Act, | 23 | | which service shall be sufficient for
purposes of due process.
| 24 | | (g) An order for support shall include a date on which the | 25 | | current
support obligation terminates. The termination date | 26 | | shall be no earlier than
the date on which the child covered by |
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| 1 | | the order will attain the age of
18. However, if the child will | 2 | | not graduate from high school until after
attaining the age of | 3 | | 18, then the termination date shall be no earlier than the
| 4 | | earlier of the date on which the child's high school graduation | 5 | | will occur or
the date on which the child will attain the age | 6 | | of 19. The order for support
shall state that the termination | 7 | | date does not apply to any arrearage that may
remain unpaid on | 8 | | that date. Nothing in this subsection shall be construed to
| 9 | | prevent the court from modifying the order or terminating the | 10 | | order in the
event the child is otherwise emancipated.
| 11 | | (g-5) If there is an unpaid arrearage or delinquency (as | 12 | | those terms are defined in the Income Withholding for Support | 13 | | Act) equal to at least one month's support obligation on the | 14 | | termination date stated in the order for support or, if there | 15 | | is no termination date stated in the order, on the date the | 16 | | child attains the age of majority or is otherwise emancipated, | 17 | | the periodic amount required to be paid for current support of | 18 | | that child immediately prior to that date shall automatically | 19 | | continue to be an obligation, not as current support but as | 20 | | periodic payment toward satisfaction of the unpaid arrearage or | 21 | | delinquency. That periodic payment shall be in addition to any | 22 | | periodic payment previously required for satisfaction of the | 23 | | arrearage or delinquency. The total periodic amount to be paid | 24 | | toward satisfaction of the arrearage or delinquency may be | 25 | | enforced and collected by any method provided by law for | 26 | | enforcement and collection of child support, including but not |
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| 1 | | limited to income withholding under the Income Withholding for | 2 | | Support Act. Each order for support entered or modified on or | 3 | | after the effective date of this amendatory Act of the 93rd | 4 | | General Assembly must contain a statement notifying the parties | 5 | | of the requirements of this subsection. Failure to include the | 6 | | statement in the order for support does not affect the validity | 7 | | of the order or the operation of the provisions of this | 8 | | subsection with regard to the order. This subsection shall not | 9 | | be construed to prevent or affect the establishment or | 10 | | modification of an order for support of a minor child or the | 11 | | establishment or modification of an order for support of a | 12 | | non-minor child or educational expenses under Section 513 of | 13 | | this Act.
| 14 | | (h) An order entered under this Section shall include a | 15 | | provision requiring
the obligor to report to the obligee and to | 16 | | the clerk of court within 10 days
each time the obligor obtains | 17 | | new employment, and each time the obligor's
employment is | 18 | | terminated for any reason. The report shall be in writing and
| 19 | | shall, in the case of new employment, include the name and | 20 | | address of the new
employer. Failure to report new employment | 21 | | or the termination of current
employment, if coupled with | 22 | | nonpayment of support for a period in excess of 60
days, is | 23 | | indirect criminal contempt. For any obligor arrested for | 24 | | failure to
report new employment bond shall be set in the | 25 | | amount of the child support that
should have been paid during | 26 | | the period of unreported employment. An order
entered under |
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| 1 | | this Section shall also include a provision requiring the | 2 | | obligor
and obligee parents to advise each other of a change in | 3 | | residence within 5 days
of the change except when the court | 4 | | finds that the physical, mental, or
emotional health of a party | 5 | | or that of a child, or both, would be
seriously endangered by | 6 | | disclosure of the party's address.
| 7 | | (i) The court does not lose the powers of contempt, | 8 | | driver's license
suspension, or other child support | 9 | | enforcement mechanisms, including, but
not limited to, | 10 | | criminal prosecution as set forth in this Act, upon the
| 11 | | emancipation of the minor child or children.
| 12 | | (Source: P.A. 96-1134, eff. 7-21-10; 97-186, eff. 7-22-11; | 13 | | 97-608, eff. 1-1-12; revised 10-4-11.)
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