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90_SB0465eng
735 ILCS 5/12-112 from Ch. 110, par. 12-112
765 ILCS 1005/1c from Ch. 76, par. 1c
Amends the Code of Civil Procedure to exclude from the
provision forbidding property held in tenancy by the entirety
to be sold upon judgment against one creditor, property that
was transferred into tenancy by the entirety in violation of
the Uniform Fraudulent Transfer Act. Amends the Joint
Tenancy Act. Provides that it is not the intent of the Joint
Tenancy Act to enable a person to make a devise, conveyance,
assignment, or other transfer of property maintained or
intended for maintenance as a homestead by both husband and
wife together during coverture declaring that the devise is
made to persons, expressly named as husband and wife, as
tenants by the entirety in order to defraud a creditor.
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1 AN ACT in relation to property, amending named Acts.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Code of Civil Procedure is amended by
5 changing Section 12-112 as follows:
6 (735 ILCS 5/12-112) (from Ch. 110, par. 12-112)
7 Sec. 12-112. What liable to enforcement. All the lands,
8 tenements, real estate, goods and chattels (except such as is
9 by law declared to be exempt) of every person against whom
10 any judgment has been or shall be hereafter entered in any
11 court, for any debt, damages, costs, or other sum of money,
12 shall be liable to be sold upon such judgment. Any real
13 property, or any beneficial interest in a land trust, held in
14 tenancy by the entirety shall not be liable to be sold upon
15 judgment entered on or after October 1, 1990 against only one
16 of the tenants, except if the property was transferred into
17 tenancy by the entirety in violation of the Uniform
18 Fraudulent Transfer Act. However, any income from such
19 property shall be subject to garnishment as provided in Part
20 7 of this Article XII, whether judgment has been entered
21 against one or both of the tenants.
22 This amendatory Act of 1995 is declarative of existing
23 law.
24 (Source: P.A. 89-88, eff. 6-30-95; 89-438, eff. 12-15-95.)
25 Section 10. The Joint Tenancy Act is amended by changing
26 Section 1c as follows:
27 (765 ILCS 1005/1c) (from Ch. 76, par. 1c)
28 Sec. 1c. Whenever a devise, conveyance, assignment, or
29 other transfer of property, including a beneficial interest
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1 in a land trust, maintained or intended for maintenance as a
2 homestead by both husband and wife together during coverture
3 shall be made and the instrument of devise, conveyance,
4 assignment, or transfer expressly declares that the devise or
5 conveyance is made to persons, named and expressly identified
6 in that instrument as husband and wife, not as joint tenants
7 or tenants in common but as tenants by the entirety, or if
8 the beneficial interest in a land trust is to be held by both
9 husband and wife as tenants by the entirety, the estate
10 created shall be deemed to be in tenancy by the entirety.
11 Subject to the provisions of paragraph (d) of Section 2 and
12 unless otherwise assented to in writing by both tenants by
13 the entirety, the estate in tenancy by the entirety so
14 created shall exist only if, and as long as, the tenants are
15 and remain married to each other, and upon the death of
16 either such tenant the survivor shall retain the entire
17 estate; provided that, upon a judgment of dissolution of
18 marriage or of declaration of invalidity of marriage, the
19 estate shall, by operation of law, become a tenancy in common
20 until and unless the court directs otherwise; provided
21 further that the estate shall, by operation of law, become a
22 joint tenancy upon the creation and maintenance by both
23 spouses together of other property as a homestead. A devise,
24 conveyance, assignment, or other transfer to 2 grantees who
25 are not in fact husband and wife that purports to create an
26 estate by the entirety shall be construed as having created
27 an estate in joint tenancy. An estate in tenancy by the
28 entirety may be created notwithstanding the fact that a
29 grantor is or the grantors are also named as a grantee or the
30 grantees in a deed. No deed, contract for deed, mortgage, or
31 lease of homestead property held in tenancy by the entirety
32 shall be effective unless signed by both tenants. This
33 Section shall not apply to nor operate to change the effect
34 of any devise or conveyance.
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1 Nothing in this Section shall be construed nor was it
2 ever the intent of the General Assembly that this Section be
3 construed to enable a person to make a devise, conveyance,
4 assignment, or other transfer of property maintained or
5 intended for maintenance as a homestead by both husband and
6 wife together during coverture declaring that the devise or
7 conveyance is made to persons, named and expressly identified
8 as husband and wife, as tenants by the entirety in order to
9 defraud a creditor as provided in Section 5 of the Uniform
10 Fraudulent Transfer Act.
11 This amendatory Act of 1995 is declarative of existing
12 law.
13 (Source: P.A. 89-88, eff. 6-30-95; 89-438, eff. 12-15-95.)