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90_SB1024
New Act
305 ILCS 5/10-16.2 from Ch. 23, par. 10-16.2
750 ILCS 5/706.1 from Ch. 40, par. 706.1
750 ILCS 15/4.1 from Ch. 40, par. 1107.1
750 ILCS 20/26.1 from Ch. 40, par. 1226.1
750 ILCS 45/20 from Ch. 40, par. 2520
Creates the New Hire Reporting Act. Requires employers
to report newly hired employees to the Department of
Employment Security, and requires that Department to maintain
a database of reported information and share that information
with the Departments of Public Aid and Human Services,
circuit clerks, and federal offices for purposes of enabling
them to perform their duties concerning collection of child
support. Provides penalties for failure to comply with
reporting requirements. Requires the Department of Public
Aid to establish a community advisory committee to oversee
implementation of the Act and to take other actions. Amends
the income withholding provisions of the Public Aid Code, the
Marriage and Dissolution of Marriage Act, the Non-Support of
Spouse and Children Act, the Revised Uniform Reciprocal
Enforcement of Support Act, and the Parentage Act of 1984.
Provides for orders for withholding to be served by regular
or certified mail or facsimile (now, by certified mail or
personal delivery). Requires a payor's nonperformance within
specified time periods to be documented by certified mail
return receipt. Provides that an order for withholding need
not be served again on a payor if income withholding is
terminated because of an interruption in the obligor's
employment of less than 180 days. Effective immediately.
LRB9003396DJcd
LRB9003396DJcd
1 AN ACT concerning child support.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 New Hire Reporting Act.
6 Section 5. Definitions. In this Act:
7 "Employee" means any individual permitted to work in this
8 State by an employer in an occupation, but does not include
9 any individual:
10 (1) who has been and will continue to be free from
11 control and direction over the performance of his or her
12 work, both under his or her contract of service with his
13 or her employer and in fact; and
14 (2) who performs work that is either outside the
15 usual course of business or is performed outside all of
16 the places of business of the employer unless the
17 employer is in the business of contracting with third
18 parties for the placement of employees; and
19 (3) who is in an independently established trade,
20 occupation, profession, or business.
21 "Employer" means any individual, partnership,
22 association, corporation, business trust, or other person or
23 group of persons acting directly or indirectly in the
24 interest of an employer in relation to an employee, for which
25 one or more persons is gainfully employed in this State.
26 Section 10. Reporting employment. Every employer shall
27 report to the Department of Employment Security the hiring of
28 any employee after September 30, 1997. The report shall
29 contain the newly hired employee's name, address, and social
30 security number and the employer's name, address, and
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1 federal employer identification number. At the employer's
2 option, the report may include the date on which the employee
3 was hired and the address at which the employer wants to be
4 served with any order for withholding under the Illinois
5 Public Aid Code, the Illinois Marriage and Dissolution of
6 Marriage Act, the Non-Support of Spouse and Children Act, the
7 Revised Uniform Reciprocal Enforcement of Support Act, or the
8 Illinois Parentage Act of 1984, if different from the address
9 designated for purposes of the employer's federal employer
10 identification number.
11 Section 15. Reporting procedure.
12 (a) An employer shall make the report required under
13 Section 10 within 20 days after hiring an employee. An
14 employer making the reports magnetically or electronically
15 shall do so by making 2 reports each month, at least 12 but
16 not more than 16 days apart.
17 (b) An employer shall make the report required under
18 Section 10 by sending a copy of the newly hired employee's
19 W-4 form, or any equivalent form or mechanism of the
20 employer's choice that includes the information required
21 under Section 10, to the Department of Employment Security by
22 any of the following means: electronically or by facsimile,
23 mail, magnetic tape, computer printout, or diskette.
24 (c) If an employer has employees in 2 or more states and
25 submits the reports required under Section 10 magnetically or
26 electronically, the employer may submit all reports of newly
27 hired employees to a single designated state in which the
28 employer has employees, after notifying the Secretary of
29 Health and Human Services.
30 Section 20. Penalty for failure to comply. If an
31 employer knowingly and without reasonable cause fails to
32 comply with the reporting requirements under this Act and
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1 without reasonable cause continues to fail to comply with
2 those requirements for more than 21 days after the Department
3 of Employment Security mails a notice of noncompliance to the
4 employer by certified mail, return receipt requested, the
5 Department of Employment Security shall impose on the
6 employer a civil administrative penalty of $15. If the
7 employer's failure to comply with the reporting requirements
8 under this Act as described in the preceding sentence is the
9 result of a conspiracy between the employer and the employee
10 whose hiring was not reported, the employer is guilty of a
11 Class B misdemeanor, for which a fine not exceeding $500 may
12 be imposed. An employer does not commit a conspiracy under
13 this Section if the failure to report was the result of a
14 conspiracy between the newly hired employee and another
15 employee committed without the owner's knowledge.
16 Section 25. Information database.
17 (a) The Department of Employment Security shall maintain
18 a database containing the information reported under this
19 Act. Reported information shall be maintained for 3 years.
20 (b) The Department of Employment Security shall make the
21 information in the database available to the following for
22 the purpose of enabling them to perform their duties in
23 connection with the collection of child support: the
24 Departments of Public Aid and Human Services, clerks of the
25 circuit court, and federal offices as required by law. The
26 supplying of this information shall be limited to named cases
27 and is subject to all confidentiality requirements of law.
28 Section 30. Toll-free telephone line; public service
29 announcements.
30 (a) The Department of Employment Security shall
31 establish a toll-free telephone line for new hire reporting,
32 employer follow-up to correct errors and facilitate
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1 electronic transmission, and an expedited administrative
2 hearing process to determine reasonable cause in
3 non-compliance situations.
4 (b) The Department of Employment Security shall issue
5 public service announcements and mailings to inform employers
6 about the new hire reporting requirements and procedures
7 under this Act, including simple instructions on completion
8 of the Form W-4 and information on electronic or magnetic
9 transmission of data.
10 Section 35. Department of Public Aid duties. The
11 Department of Public Aid shall establish a community advisory
12 committee for oversight of the implementation process,
13 toll-free telephone lines for employers with child support
14 questions, an expedited hearing process for non-custodial
15 parents who contest an employer's execution of an order for
16 withholding and brochures and public service announcements
17 that inform the general public about the New Hire Directory
18 and how to utilize it, within the federal and State
19 confidentiality laws, in pursuit of child support.
20 Section 40. Emergency judicial hearing. If the issue of
21 an employer's reasonable cause for failure to comply with the
22 reporting requirements under this Act is not resolved through
23 the expedited administrative hearing process authorized under
24 subsection (a) of Section 30, the employer may file a
25 petition in the circuit court to seek judicial review of that
26 issue.
27 Section 90. The Illinois Public Aid Code is amended by
28 changing Section 10-16.2 as follows:
29 (305 ILCS 5/10-16.2) (from Ch. 23, par. 10-16.2)
30 (Text of Section before amendment by P.A. 89-507)
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1 Sec. 10-16.2. Withholding of Income to Secure Payment of
2 Support.
3 (A) Definitions.
4 (1) "Order for support" means any order of the court
5 which provides for periodic payment of funds for the support
6 of a child or maintenance of a spouse, whether temporary or
7 final, and includes any such order which provides for:
8 (a) Modification or resumption of, or payment of
9 arrearage accrued under, a previously existing order;
10 (b) Reimbursement of support; or
11 (c) Enrollment in a health insurance plan that is
12 available to the obligor through an employer or labor
13 union or trade union.
14 (2) "Arrearage" means the total amount of unpaid support
15 obligations.
16 (3) "Delinquency" means any payment under an order for
17 support which becomes due and remains unpaid after an order
18 for withholding has been entered under subsection (B) or, for
19 purposes of subsection (K), after the last order for support
20 was entered for which no order for withholding was entered.
21 (4) "Income" means any form of periodic payment to an
22 individual, regardless of source, including, but not limited
23 to: wages, salary, commission, compensation as an independent
24 contractor, workers' compensation, disability, annuity and
25 retirement benefits, lottery prize awards, insurance
26 proceeds, vacation pay, bonuses, profit-sharing payments and
27 any other payments, made by any person, private entity,
28 federal or state government, any unit of local government,
29 school district or any entity created by Public Act; however,
30 "income" excludes:
31 (a) Any amounts required by law to be withheld,
32 other than creditor claims, including, but not limited
33 to, federal, State and local taxes, Social Security and
34 other retirement and disability contributions;
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1 (b) Union dues;
2 (c) Any amounts exempted by the federal Consumer
3 Credit Protection Act;
4 (d) Public assistance payments; and
5 (e) Unemployment insurance benefits except as
6 provided by law.
7 Any other State or local laws which limit or exempt
8 income or the amount or percentage of income that can be
9 withheld shall not apply.
10 (5) "Obligor" means the individual who owes a duty to
11 make payments under an order for support.
12 (6) "Obligee" means the individual to whom a duty of
13 support is owed or the individual's legal representative.
14 (7) "Payor" means any payor of income to an obligor.
15 (8) "Public office" means any elected official or any
16 State or local agency which is or may become responsible by
17 law for enforcement of, or which is or may become authorized
18 to enforce, an order for support, including, but not limited
19 to: the Attorney General, the Illinois Department of Public
20 Aid, the Illinois Department of Mental Health and
21 Developmental Disabilities, the Illinois Department of
22 Children and Family Services, and the various State's
23 Attorneys, Clerks of the Circuit Court and supervisors of
24 general assistance.
25 (9) "Premium" means the dollar amount for which the
26 obligor is liable to his employer or labor union or trade
27 union and which must be paid to enroll or maintain a child in
28 a health insurance plan that is available to the obligor
29 through an employer or labor union or trade union.
30 (B) Entry of an Order for Withholding.
31 (1) Upon entry of any order for support on or after
32 January 1, 1984, the court shall enter a separate order for
33 withholding which shall not take effect unless the obligor
34 becomes delinquent in paying the order for support or the
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1 obligor requests an earlier effective date; except that the
2 court may require the order for withholding to take effect
3 immediately.
4 On or after January 1, 1989, the court shall require the
5 order for withholding to take effect immediately, unless a
6 written agreement is reached between and signed by both
7 parties providing for an alternative arrangement, approved
8 and entered into the record by the court, which insures
9 payment of support. In that case, the court shall enter the
10 order for withholding which will not take effect unless the
11 obligor becomes delinquent in paying the order for support.
12 Upon entry of any order of support on or after September
13 11, 1989, if the obligor is not a United States citizen, the
14 obligor shall provide to the court the obligor's alien
15 registration number, passport number, and home country's
16 social security or national health number, if applicable; the
17 court shall make the information part of the record in the
18 case.
19 (2) An order for withholding shall be entered upon
20 petition by the obligee or public office where an order for
21 withholding has not been previously entered.
22 (3) The order for withholding shall:
23 (a) Direct any payor to withhold a dollar amount
24 equal to the order for support; and
25 (b) Direct any payor to withhold an additional
26 dollar amount, not less than 20% of the order for
27 support, until payment in full of any delinquency stated
28 in the notice of delinquency provided for in subsection
29 (C) or (F) of this Section; and
30 (c) Direct any payor or labor union or trade union
31 to enroll a child as a beneficiary of a health insurance
32 plan and withhold or cause to be withheld, if
33 applicable, any required premium; and
34 (d) State the rights, remedies and duties of the
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1 obligor under this Section; and
2 (e) Include the obligor's Social Security Number,
3 which the obligor shall disclose to the court; and
4 (f) Include the date that withholding for current
5 support terminates, which shall be the date of
6 termination of the current support obligation set forth
7 in the order for support.
8 (4) At the time the order for withholding is entered,
9 the Clerk of the Circuit Court shall provide a copy of the
10 order for withholding and the order for support to the
11 obligor and shall make copies available to the obligee and
12 public office. Any copy of the order for withholding
13 furnished to the parties under this subsection shall be
14 stamped "Not Valid".
15 (5) The order for withholding shall remain in effect for
16 as long as the order for support upon which it is based.
17 (6) The failure of an order for withholding to state an
18 arrearage is not conclusive of the issue of whether an
19 arrearage is owing.
20 (7) Notwithstanding the provisions of this subsection,
21 if the court finds at the time of any hearing that an
22 arrearage has accrued in an amount equal to at least one
23 month's support obligation or that the obligor is 30 days
24 late in paying all or part of the order for support, the
25 court shall order immediate service of the order for
26 withholding upon the payor.
27 (8) Where the court has not required that the order for
28 withholding take effect immediately, the obligee or public
29 office may prepare and serve a notice for immediate
30 withholding upon the obligor by ordinary mail addressed to
31 the obligor at his or her last known address. The notice
32 shall state that the following circumstances have occurred:
33 (a) The parties' written agreement providing an
34 alternative arrangement to immediate withholding under
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1 paragraph (1) of this subsection no longer provides for
2 timely payment of all support due; or
3 (b) The obligor has not made timely payments in
4 that the obligor has been at least 7 days late in paying
5 all or part of the order for support any of the last 6
6 consecutive dates payments were due prior to the date of
7 the notice for immediate withholding.
8 The notice for immediate withholding shall clearly state
9 that a specially certified copy of the order for withholding
10 will be sent to the payor, unless the obligor files a
11 petition contesting immediate withholding within 20 days
12 after service of the notice; however, the grounds for the
13 petition shall be limited to a dispute concerning whether the
14 circumstances stated in the notice have occurred or the
15 identity of the obligor. It shall not be grounds for the
16 petition that the obligor has made all payments due by the
17 date of the petition.
18 If the obligor files a petition contesting immediate
19 withholding within the 20-day period required under this
20 paragraph, the Clerk of the Circuit Court shall notify the
21 obligor and the obligee or public office, as appropriate, of
22 the time and place of the hearing on the petition. Upon
23 hearing the petition, the court shall enter an order granting
24 or denying relief. It shall not be grounds for granting the
25 obligor's petition that he or she has made all payments due
26 by the date of hearing. If the court denies the obligor's
27 petition, it shall order immediate service of the order for
28 withholding and direct the clerk to provide a specially
29 certified copy of the order for withholding to the obligee or
30 public office indicating that the requirements for immediate
31 withholding under this paragraph have been met.
32 If the obligor does not file a petition contesting
33 immediate withholding within the 20-day period, the obligee
34 or public office shall file with the Clerk of the Circuit
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1 Court an affidavit, with a copy of the notice for immediate
2 withholding attached thereto, stating that the notice was
3 duly served and the date on which service was effected, and
4 that the obligor has not filed a petition contesting
5 immediate withholding. The clerk shall then provide to the
6 obligee or public office a specially certified copy of the
7 order for withholding indicating that the requirements for
8 immediate withholding under this paragraph have been met.
9 Upon receipt of a specially certified copy of the order
10 for withholding, the obligee or public office may serve the
11 order on the payor, its superintendent, manager or other
12 agent, by certified mail or personal delivery. A proof of
13 service shall be filed with the Clerk of the Circuit Court.
14 (C) Notice of Delinquency.
15 (1) Whenever an obligor becomes delinquent in payment of
16 an amount equal to at least one month's support obligation
17 pursuant to the order for support or is at least 30 days late
18 in complying with all or part of the order for support,
19 whichever occurs first, the obligee or public office may
20 prepare and serve a verified notice of delinquency, together
21 with a form petition to stay service, pursuant to paragraph
22 (3) of this subsection.
23 (2) The notice of delinquency shall recite the terms of
24 the order for support and contain a computation of the period
25 and total amount of the delinquency, as of the date of the
26 notice. The notice shall clearly state that it will be sent
27 to the payor, together with a specially certified copy of the
28 order for withholding, except as provided in subsection (F),
29 unless the obligor files a petition to stay service in
30 accordance with paragraph (1) of subsection (D).
31 (3) The notice of delinquency shall be served by
32 ordinary mail addressed to the obligor at his or her last
33 known address.
34 (4) The obligor may execute a written waiver of the
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1 provisions of paragraphs (1) through (3) of this subsection
2 and request immediate service upon the payor.
3 (D) Procedures to Avoid Income Withholding.
4 (1) Except as provided in subsection (F), the obligor
5 may prevent an order for withholding from being served by
6 filing a petition to stay service with the Clerk of the
7 Circuit Court, within 20 days after service of the notice of
8 delinquency; however, the grounds for the petition to stay
9 service shall be limited to:
10 (a) A dispute concerning the amount of current
11 support or the existence or amount of the delinquency;
12 (b) The identity of the obligor.
13 The Clerk of the Circuit Court shall notify the obligor
14 and the obligee or public office, as appropriate, of the time
15 and place of the hearing on the petition to stay service. The
16 court shall hold such hearing pursuant to the provisions of
17 subsection (H).
18 (2) Except as provided in subsection (F), filing of a
19 petition to stay service, within the 20-day period required
20 under this subsection, shall prohibit the obligee or public
21 office from serving the order for withholding on any payor of
22 the obligor.
23 (E) Initial Service of Order for Withholding.
24 (1) Except as provided in subsection (F), in order to
25 serve an order for withholding upon a payor, an obligee or
26 public office shall follow the procedures set forth in this
27 subsection. After 20 days following service of the notice of
28 delinquency, the obligee or public office shall file with the
29 Clerk of the Circuit Court an affidavit, with the copy of the
30 notice of delinquency attached thereto, stating:
31 (a) that the notice of delinquency has been duly
32 served and the date on which service was effected; and
33 (b) that the obligor has not filed a petition to
34 stay service, or in the alternative
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1 (c) that the obligor has waived the provisions of
2 subparagraphs (a) and (b) of this paragraph (1) in
3 accordance with subsection (C)(4).
4 (2) Upon request of the obligee or public office, the
5 Clerk of the Circuit Court shall: (a) make available any
6 record of payment; and (b) determine that the file contains a
7 copy of the affidavit described in paragraph (1). The Clerk
8 shall then provide to the obligee or public office a
9 specially certified copy of the order for withholding and the
10 notice of delinquency indicating that the preconditions for
11 service have been met.
12 (3) The obligee or public office may then serve the
13 notice of delinquency and order for withholding on the payor,
14 its superintendent, manager or other agent, by regular or
15 certified mail or facsimile personal delivery. A proof of
16 service shall be filed with the Clerk of the Circuit Court.
17 (F) Subsequent Service of Order for Withholding.
18 (1) Notwithstanding the provisions of this Section, at
19 any time after the court has ordered immediate service of an
20 order for withholding or after initial service of an order
21 for withholding pursuant to subsection (E), the obligee or
22 public office may serve the order for withholding upon any
23 payor of the obligor without further notice to the obligor.
24 The obligee or public office shall provide notice to the
25 payor, pursuant to paragraph (6) of subsection (I), of any
26 payments that have been made through previous withholding or
27 any other method.
28 (2) The Clerk of the Circuit Court shall, upon request,
29 provide the obligee or public office with specially certified
30 copies of the order for withholding or the notice of
31 delinquency or both whenever the Court has ordered immediate
32 service of an order for withholding or an affidavit has been
33 placed in the court file indicating that the preconditions
34 for service have been previously met or that the requirements
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1 for immediate withholding under paragraph (8) of subsection B
2 have been previously met. The obligee or public office may
3 then serve the order for withholding on the payor, its
4 superintendent, manager or other agent by regular or
5 certified mail or facsimile personal delivery. A proof of
6 service shall be filed with the Clerk of the Circuit Court.
7 (3) If a delinquency has accrued for any reason, the
8 obligee or public office may serve a notice of delinquency
9 upon the obligor pursuant to subsection (C). The obligor may
10 prevent the notice of delinquency from being served upon the
11 payor by utilizing the procedures set forth in subsection
12 (D). If no petition to stay service has been filed within the
13 required 20 day time period, the obligee or public office may
14 serve the notice of delinquency on the payor by utilizing the
15 procedures for service set forth in subsection (E).
16 (4) New service of an order for withholding is not
17 required in order to resume withholding of income in the case
18 of an obligor with respect to whom an order for withholding
19 was previously served on the payor if withholding of income
20 was terminated because of an interruption in the obligor's
21 employment of less than 180 days.
22 (G) Duties of Payor.
23 (1) It shall be the duty of any payor who has been
24 served with a copy of the specially certified order for
25 withholding and any notice of delinquency to deduct and pay
26 over income as provided in this subsection. The payor shall
27 deduct the amount designated in the order for withholding, as
28 supplemented by the notice of delinquency and any notice
29 provided pursuant to paragraph (6) of subsection (I),
30 beginning no later than the next payment of income which is
31 payable to the obligor that occurs 14 days following the date
32 the order and any notice were mailed by certified mail or
33 placed for personal delivery. The payor may combine all
34 amounts withheld for the benefit of an obligee or public
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1 office into a single payment and transmit the payment with a
2 listing of obligors from whom withholding has been effected.
3 The payor shall pay the amount withheld to the obligee or
4 public office within 10 calendar days of the date income is
5 paid to the obligor in accordance with the order for
6 withholding and any subsequent notification received from the
7 public office redirecting payments. If the payor knowingly
8 fails to pay any amount withheld to the obligee or public
9 office within 10 calendar days of the date income is paid to
10 the obligor, the payor shall pay a penalty of $100 for each
11 day that the withheld amount is not paid to the obligee or
12 public office after the period of 10 calendar days has
13 expired. The failure of a payor, on more than one occasion,
14 to pay amounts withheld to the obligee or public office
15 within 10 calendar days of the date income is not paid to the
16 obligor creates a presumption that the payor knowingly failed
17 to pay the amounts. This penalty may be collected in a civil
18 action which may be brought against the payor in favor of the
19 obligee. A finding of a payor's nonperformance within the
20 time required under this Section must be documented by a
21 certified mail return receipt showing the date the order for
22 withholding was served on the payor. For purposes of this
23 Section, a withheld amount shall be considered paid by a
24 payor on the date it is mailed by the payor, or on the date
25 an electronic funds transfer of the amount has been initiated
26 by the payor, or on the date delivery of the amount has been
27 initiated by the payor. For each deduction, the payor shall
28 provide the obligee or public office, at the time of
29 transmittal, with the date income was paid from which support
30 was withheld.
31 Upon receipt of an order requiring that a minor child be
32 named as a beneficiary of a health insurance plan available
33 through an employer or labor union or trade union, the
34 employer or labor union or trade union shall immediately
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1 enroll the minor child as a beneficiary in the health
2 insurance plan designated by the court order. The employer
3 shall withhold any required premiums and pay over any amounts
4 so withheld and any additional amounts the employer pays to
5 the insurance carrier in a timely manner. The employer or
6 labor union or trade union shall mail to the obligee, within
7 15 days of enrollment or upon request, notice of the date of
8 coverage, information on the dependent coverage plan, and all
9 forms necessary to obtain reimbursement for covered health
10 expenses, such as would be made available to a new employee.
11 When an order for dependent coverage is in effect and the
12 insurance coverage is terminated or changed for any reason,
13 the employer or labor union or trade union shall notify the
14 obligee within 10 days of the termination or change date
15 along with notice of conversion privileges.
16 For withholding of income, the payor shall be entitled to
17 receive a fee not to exceed $5 per month to be taken from the
18 income to be paid to the obligor.
19 (2) Whenever the obligor is no longer receiving income
20 from the payor, the payor shall return a copy of the order
21 for withholding to the obligee or public office and shall
22 provide information for the purpose of enforcing this
23 Section.
24 (3) Withholding of income under this Section shall be
25 made without regard to any prior or subsequent garnishments,
26 attachments, wage assignments, or any other claims of
27 creditors. Withholding of income under this Section shall
28 not be in excess of the maximum amounts permitted under the
29 federal Consumer Credit Protection Act. If the payor has been
30 served with more than one order for withholding pertaining to
31 the same obligor, the payor shall allocate income available
32 for withholding on a proportionate share basis, giving
33 priority to current support payments. If there is any income
34 available for withholding after withholding for all current
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1 support obligations, the payor shall allocate the income to
2 past due support payments ordered in non-AFDC matters and
3 then to past due support payments ordered in AFDC matters,
4 both on a proportionate share basis. Payment as required by
5 the order for withholding shall be a complete defense by the
6 payor against any claims of the obligor or his creditors as
7 to the sum so paid.
8 (4) No payor shall discharge, discipline, refuse to hire
9 or otherwise penalize any obligor because of the duty to
10 withhold income.
11 (H) Petitions to Stay Service or to Modify, Suspend or
12 Terminate Orders for Withholding.
13 (1) When an obligor files a petition to stay service,
14 the court, after due notice to all parties, shall hear the
15 matter as soon as practicable and shall enter an order
16 granting or denying relief, amending the notice of
17 delinquency, amending the order for withholding, where
18 applicable, or otherwise resolving the matter. If the court
19 finds that a delinquency existed when the notice of
20 delinquency was served upon the obligor, in an amount of at
21 least one month's support obligation, or that the obligor was
22 at least 30 days late in paying all or part of the order for
23 support, the court shall order immediate service of the order
24 for withholding. Where the court cannot promptly resolve any
25 dispute over the amount of the delinquency, the court may
26 order immediate service of the order for withholding as to
27 any undisputed amounts specified in an amended notice of
28 delinquency, and may continue the hearing on the disputed
29 amounts.
30 (2) At any time, an obligor, obligee, public office or
31 Clerk of the Circuit Court may petition the court to:
32 (a) Modify, suspend or terminate the order for
33 withholding because of a modification, suspension or
34 termination of the underlying order for support; or
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1 (b) Modify the amount of income to be withheld to
2 reflect payment in full or in part of the delinquency or
3 arrearage by income withholding or otherwise; or
4 (c) Suspend the order for withholding because of
5 inability to deliver income withheld to the obligee due
6 to the obligee's failure to provide a mailing address or
7 other means of delivery.
8 (3) The obligor, obligee or public office shall serve on
9 the payor, by certified mail or personal delivery, a copy of
10 any order entered pursuant to this subsection that affects
11 the duties of the payor.
12 (4) At any time, a public office or Clerk of the Circuit
13 Court may serve a notice on the payor to:
14 (a) cease withholding of income for payment of
15 current support for a child when the support obligation
16 for that child has automatically ceased under the order
17 for support through emancipation or otherwise; or
18 (b) cease withholding of income for payment of
19 delinquency or arrearage when the delinquency or
20 arrearage has been paid in full.
21 (5) The notice provided for under paragraph (4) of this
22 subsection shall be served on the payor by ordinary mail, and
23 a copy shall be provided to the obligor and the obligee. A
24 copy of the notice shall be filed with the Clerk of the
25 Circuit Court.
26 (6) The order for withholding shall continue to be
27 binding upon the payor until service of any order of the
28 court or notice entered or provided for under this
29 subsection.
30 (I) Additional Duties.
31 (1) An obligee who is receiving income withholding
32 payments under this Section shall notify the payor, if the
33 obligee receives the payments directly from the payor, or the
34 public office or the Clerk of the Circuit Court, as
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1 appropriate, of any change of address within 7 days of such
2 change.
3 (2) An obligee who is a recipient of public aid shall
4 send a copy of any notice of delinquency filed pursuant to
5 subsection (C) to the Bureau of Child Support of the Illinois
6 Department of Public Aid.
7 (3) Each obligor shall notify the obligee and the Clerk
8 of the Circuit Court of any change of address within 7 days.
9 (4) An obligor whose income is being withheld or who has
10 been served with a notice of delinquency pursuant to this
11 Section shall notify the obligee and the Clerk of the Circuit
12 Court of any new payor, within 7 days.
13 (5) When the Illinois Department of Public Aid is no
14 longer authorized to receive payments for the obligee, it
15 shall, within 7 days, notify the payor or, where appropriate,
16 the Clerk of the Circuit Court, to redirect income
17 withholding payments to the obligee.
18 (6) The obligee or public office shall provide notice to
19 the payor and Clerk of the Circuit Court of any other support
20 payment made, including but not limited to, a set-off under
21 federal and State law or partial payment of the delinquency
22 or arrearage, or both.
23 (7) Any public office and Clerk of the Circuit Court
24 which collects, disburses or receives payments pursuant to
25 orders for withholding shall maintain complete, accurate, and
26 clear records of all payments and their disbursements.
27 Certified copies of payment records maintained by a public
28 office or Clerk of the Circuit Court shall, without further
29 proof, be admitted into evidence in any legal proceedings
30 under this Section.
31 (8) The Illinois Department of Public Aid shall design
32 suggested legal forms for proceeding under this Section and
33 shall make available to the courts such forms and
34 informational materials which describe the procedures and
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1 remedies set forth herein for distribution to all parties in
2 support actions.
3 (9) At the time of transmitting each support payment,
4 the clerk of the circuit court shall provide the obligee or
5 public office, as appropriate, with any information furnished
6 by the payor as to the date income was paid from which such
7 support was withheld.
8 (J) Penalties.
9 (1) Where a payor wilfully fails to withhold or pay over
10 income pursuant to a properly served, specially certified
11 order for withholding and any notice of delinquency, or
12 wilfully discharges, disciplines, refuses to hire or
13 otherwise penalizes an obligor as prohibited by subsection
14 (G), or otherwise fails to comply with any duties imposed by
15 this Section, the obligee, public office or obligor, as
16 appropriate, may file a complaint with the court against the
17 payor. The clerk of the circuit court shall notify the
18 obligee or public office, as appropriate, and the obligor and
19 payor of the time and place of the hearing on the complaint.
20 The court shall resolve any factual dispute including, but
21 not limited to, a denial that the payor is paying or has paid
22 income to the obligor. Upon a finding in favor of the
23 complaining party, the court:
24 (a) Shall enter judgment and direct the enforcement
25 thereof for the total amount that the payor wilfully
26 failed to withhold or pay over; and
27 (b) May order employment or reinstatement of or
28 restitution to the obligor, or both, where the obligor
29 has been discharged, disciplined, denied employment or
30 otherwise penalized by the payor and may impose a fine
31 upon the payor not to exceed $200.
32 (2) Any obligee, public office or obligor who wilfully
33 initiates a false proceeding under this Section or who
34 wilfully fails to comply with the requirements of this
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1 Section shall be punished as in cases of contempt of court.
2 (K) Alternative Procedures for Entry and Service of an Order
3 for Withholding.
4 (1) Effective January 1, 1987, in any matter in which an
5 order for withholding has not been entered for any reason,
6 based upon the last order for support that has been entered,
7 and in which the obligor has become delinquent in payment of
8 an amount equal to at least one month's support obligation
9 pursuant to the last order for support or is at least 30 days
10 late in complying with all or part of the order for support,
11 the obligee or public office may prepare and serve an order
12 for withholding pursuant to the procedures set forth in this
13 subsection.
14 (2) The obligee or public office shall:
15 (a) Prepare a proposed order for withholding for
16 immediate service as provided by paragraphs (1) and (3)
17 of subsection (B), except that the minimum 20%
18 delinquency payment shall be used;
19 (b) Prepare a notice of delinquency as provided by
20 paragraphs (1) and (2) of subsection (C), except the
21 notice shall state further that the order for withholding
22 has not been entered by the court and the conditions
23 under which the order will be entered; and
24 (c) Serve the notice of delinquency and form
25 petition to stay service as provided by paragraph (3) of
26 subsection (C), together with the proposed order for
27 withholding, which shall be marked "COPY ONLY".
28 (3) After 20 days following service of the notice of
29 delinquency and proposed order for withholding, in lieu of
30 the provisions of subsection (E), the obligee or public
31 office shall file with the Clerk of the Circuit Court an
32 affidavit, with a copy of the notice of delinquency and
33 proposed order for withholding attached thereto, stating
34 that:
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1 (a) The notice of delinquency and proposed order
2 for withholding have been served upon the obligor and the
3 date on which service was effected;
4 (b) The obligor has not filed a petition to stay
5 service within 20 days of service of such notice and
6 order; and
7 (c) The proposed order for withholding accurately
8 states the terms and amounts contained in the last order
9 for support.
10 (4) Upon the court's satisfaction that the procedures
11 set forth in this subsection have been met, it shall enter
12 the order for withholding.
13 (5) The Clerk shall then provide to the obligee or
14 public office a specially certified copy of the order for
15 withholding and the notice of delinquency indicating that the
16 preconditions for service have been met.
17 (6) The obligee or public office shall serve the
18 specially certified copies of the order for withholding and
19 the notice of delinquency on the payor, its superintendent,
20 manager or other agent by certified mail or personal
21 delivery. A proof of service shall be filed with the Clerk
22 of the Circuit Court.
23 (7) If the obligor requests in writing that income
24 withholding become effective prior to becoming delinquent in
25 payment of an amount equal to one month's support obligation
26 pursuant to the last order for support, or prior to becoming
27 30 days late in paying all or part of the order for support,
28 the obligee or public office shall file an affidavit with the
29 Clerk of the circuit Court, with a proposed order for
30 withholding attached, stating that the proposed order
31 accurately states the terms and amounts contained in the last
32 order for support and the obligor's request for immediate
33 service. The provisions of paragraphs (4) through (6) of
34 this subsection shall apply, except that a notice of
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1 delinquency shall not be required.
2 (8) All other provisions of this Section shall be
3 applicable with respect to the provisions of this subsection
4 (K), except that under paragraph (1) of subsection (H), the
5 court may also amend the proposed order for withholding to
6 conform to the last order for support.
7 (9) Nothing in this subsection shall be construed as
8 limiting the requirements of paragraph (1) of subsection (B)
9 with respect to the entry of a separate order for withholding
10 upon entry of any order for support.
11 (L) Remedies in Addition to Other Laws.
12 (1) The rights, remedies, duties and penalties created
13 by this Section are in addition to and not in substitution
14 for any other rights, remedies, duties and penalties created
15 by any other law.
16 (2) Nothing in this Section shall be construed as
17 invalidating any assignment of wages or benefits executed
18 prior to January 1, 1984.
19 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
20 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
21 (Text of Section after amendment by P.A. 89-507)
22 Sec. 10-16.2. Withholding of Income to Secure Payment of
23 Support.
24 (A) Definitions.
25 (1) "Order for support" means any order of the court
26 which provides for periodic payment of funds for the support
27 of a child or maintenance of a spouse, whether temporary or
28 final, and includes any such order which provides for:
29 (a) Modification or resumption of, or payment of
30 arrearage accrued under, a previously existing order;
31 (b) Reimbursement of support; or
32 (c) Enrollment in a health insurance plan that is
33 available to the obligor through an employer or labor
34 union or trade union.
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1 (2) "Arrearage" means the total amount of unpaid support
2 obligations.
3 (3) "Delinquency" means any payment under an order for
4 support which becomes due and remains unpaid after an order
5 for withholding has been entered under subsection (B) or, for
6 purposes of subsection (K), after the last order for support
7 was entered for which no order for withholding was entered.
8 (4) "Income" means any form of periodic payment to an
9 individual, regardless of source, including, but not limited
10 to: wages, salary, commission, compensation as an independent
11 contractor, workers' compensation, disability, annuity and
12 retirement benefits, lottery prize awards, insurance
13 proceeds, vacation pay, bonuses, profit-sharing payments and
14 any other payments, made by any person, private entity,
15 federal or state government, any unit of local government,
16 school district or any entity created by Public Act; however,
17 "income" excludes:
18 (a) Any amounts required by law to be withheld,
19 other than creditor claims, including, but not limited
20 to, federal, State and local taxes, Social Security and
21 other retirement and disability contributions;
22 (b) Union dues;
23 (c) Any amounts exempted by the federal Consumer
24 Credit Protection Act;
25 (d) Public assistance payments; and
26 (e) Unemployment insurance benefits except as
27 provided by law.
28 Any other State or local laws which limit or exempt
29 income or the amount or percentage of income that can be
30 withheld shall not apply.
31 (5) "Obligor" means the individual who owes a duty to
32 make payments under an order for support.
33 (6) "Obligee" means the individual to whom a duty of
34 support is owed or the individual's legal representative.
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1 (7) "Payor" means any payor of income to an obligor.
2 (8) "Public office" means any elected official or any
3 State or local agency which is or may become responsible by
4 law for enforcement of, or which is or may become authorized
5 to enforce, an order for support, including, but not limited
6 to: the Attorney General, the Illinois Department of Public
7 Aid, the Illinois Department of Human Services (as successor
8 to the Department of Mental Health and Developmental
9 Disabilities), the Illinois Department of Children and Family
10 Services, and the various State's Attorneys, Clerks of the
11 Circuit Court and supervisors of general assistance.
12 (9) "Premium" means the dollar amount for which the
13 obligor is liable to his employer or labor union or trade
14 union and which must be paid to enroll or maintain a child in
15 a health insurance plan that is available to the obligor
16 through an employer or labor union or trade union.
17 (B) Entry of an Order for Withholding.
18 (1) Upon entry of any order for support on or after
19 January 1, 1984, the court shall enter a separate order for
20 withholding which shall not take effect unless the obligor
21 becomes delinquent in paying the order for support or the
22 obligor requests an earlier effective date; except that the
23 court may require the order for withholding to take effect
24 immediately.
25 On or after January 1, 1989, the court shall require the
26 order for withholding to take effect immediately, unless a
27 written agreement is reached between and signed by both
28 parties providing for an alternative arrangement, approved
29 and entered into the record by the court, which insures
30 payment of support. In that case, the court shall enter the
31 order for withholding which will not take effect unless the
32 obligor becomes delinquent in paying the order for support.
33 Upon entry of any order of support on or after September
34 11, 1989, if the obligor is not a United States citizen, the
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1 obligor shall provide to the court the obligor's alien
2 registration number, passport number, and home country's
3 social security or national health number, if applicable; the
4 court shall make the information part of the record in the
5 case.
6 (2) An order for withholding shall be entered upon
7 petition by the obligee or public office where an order for
8 withholding has not been previously entered.
9 (3) The order for withholding shall:
10 (a) Direct any payor to withhold a dollar amount
11 equal to the order for support; and
12 (b) Direct any payor to withhold an additional
13 dollar amount, not less than 20% of the order for
14 support, until payment in full of any delinquency stated
15 in the notice of delinquency provided for in subsection
16 (C) or (F) of this Section; and
17 (c) Direct any payor or labor union or trade union
18 to enroll a child as a beneficiary of a health insurance
19 plan and withhold or cause to be withheld, if
20 applicable, any required premium; and
21 (d) State the rights, remedies and duties of the
22 obligor under this Section; and
23 (e) Include the obligor's Social Security Number,
24 which the obligor shall disclose to the court; and
25 (f) Include the date that withholding for current
26 support terminates, which shall be the date of
27 termination of the current support obligation set forth
28 in the order for support.
29 (4) At the time the order for withholding is entered,
30 the Clerk of the Circuit Court shall provide a copy of the
31 order for withholding and the order for support to the
32 obligor and shall make copies available to the obligee and
33 public office. Any copy of the order for withholding
34 furnished to the parties under this subsection shall be
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1 stamped "Not Valid".
2 (5) The order for withholding shall remain in effect for
3 as long as the order for support upon which it is based.
4 (6) The failure of an order for withholding to state an
5 arrearage is not conclusive of the issue of whether an
6 arrearage is owing.
7 (7) Notwithstanding the provisions of this subsection,
8 if the court finds at the time of any hearing that an
9 arrearage has accrued in an amount equal to at least one
10 month's support obligation or that the obligor is 30 days
11 late in paying all or part of the order for support, the
12 court shall order immediate service of the order for
13 withholding upon the payor.
14 (8) Where the court has not required that the order for
15 withholding take effect immediately, the obligee or public
16 office may prepare and serve a notice for immediate
17 withholding upon the obligor by ordinary mail addressed to
18 the obligor at his or her last known address. The notice
19 shall state that the following circumstances have occurred:
20 (a) The parties' written agreement providing an
21 alternative arrangement to immediate withholding under
22 paragraph (1) of this subsection no longer provides for
23 timely payment of all support due; or
24 (b) The obligor has not made timely payments in
25 that the obligor has been at least 7 days late in paying
26 all or part of the order for support any of the last 6
27 consecutive dates payments were due prior to the date of
28 the notice for immediate withholding.
29 The notice for immediate withholding shall clearly state
30 that a specially certified copy of the order for withholding
31 will be sent to the payor, unless the obligor files a
32 petition contesting immediate withholding within 20 days
33 after service of the notice; however, the grounds for the
34 petition shall be limited to a dispute concerning whether the
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1 circumstances stated in the notice have occurred or the
2 identity of the obligor. It shall not be grounds for the
3 petition that the obligor has made all payments due by the
4 date of the petition.
5 If the obligor files a petition contesting immediate
6 withholding within the 20-day period required under this
7 paragraph, the Clerk of the Circuit Court shall notify the
8 obligor and the obligee or public office, as appropriate, of
9 the time and place of the hearing on the petition. Upon
10 hearing the petition, the court shall enter an order granting
11 or denying relief. It shall not be grounds for granting the
12 obligor's petition that he or she has made all payments due
13 by the date of hearing. If the court denies the obligor's
14 petition, it shall order immediate service of the order for
15 withholding and direct the clerk to provide a specially
16 certified copy of the order for withholding to the obligee or
17 public office indicating that the requirements for immediate
18 withholding under this paragraph have been met.
19 If the obligor does not file a petition contesting
20 immediate withholding within the 20-day period, the obligee
21 or public office shall file with the Clerk of the Circuit
22 Court an affidavit, with a copy of the notice for immediate
23 withholding attached thereto, stating that the notice was
24 duly served and the date on which service was effected, and
25 that the obligor has not filed a petition contesting
26 immediate withholding. The clerk shall then provide to the
27 obligee or public office a specially certified copy of the
28 order for withholding indicating that the requirements for
29 immediate withholding under this paragraph have been met.
30 Upon receipt of a specially certified copy of the order
31 for withholding, the obligee or public office may serve the
32 order on the payor, its superintendent, manager or other
33 agent, by certified mail or personal delivery. A proof of
34 service shall be filed with the Clerk of the Circuit Court.
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1 (C) Notice of Delinquency.
2 (1) Whenever an obligor becomes delinquent in payment of
3 an amount equal to at least one month's support obligation
4 pursuant to the order for support or is at least 30 days late
5 in complying with all or part of the order for support,
6 whichever occurs first, the obligee or public office may
7 prepare and serve a verified notice of delinquency, together
8 with a form petition to stay service, pursuant to paragraph
9 (3) of this subsection.
10 (2) The notice of delinquency shall recite the terms of
11 the order for support and contain a computation of the period
12 and total amount of the delinquency, as of the date of the
13 notice. The notice shall clearly state that it will be sent
14 to the payor, together with a specially certified copy of the
15 order for withholding, except as provided in subsection (F),
16 unless the obligor files a petition to stay service in
17 accordance with paragraph (1) of subsection (D).
18 (3) The notice of delinquency shall be served by
19 ordinary mail addressed to the obligor at his or her last
20 known address.
21 (4) The obligor may execute a written waiver of the
22 provisions of paragraphs (1) through (3) of this subsection
23 and request immediate service upon the payor.
24 (D) Procedures to Avoid Income Withholding.
25 (1) Except as provided in subsection (F), the obligor
26 may prevent an order for withholding from being served by
27 filing a petition to stay service with the Clerk of the
28 Circuit Court, within 20 days after service of the notice of
29 delinquency; however, the grounds for the petition to stay
30 service shall be limited to:
31 (a) A dispute concerning the amount of current
32 support or the existence or amount of the delinquency;
33 (b) The identity of the obligor.
34 The Clerk of the Circuit Court shall notify the obligor
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1 and the obligee or public office, as appropriate, of the time
2 and place of the hearing on the petition to stay service. The
3 court shall hold such hearing pursuant to the provisions of
4 subsection (H).
5 (2) Except as provided in subsection (F), filing of a
6 petition to stay service, within the 20-day period required
7 under this subsection, shall prohibit the obligee or public
8 office from serving the order for withholding on any payor of
9 the obligor.
10 (E) Initial Service of Order for Withholding.
11 (1) Except as provided in subsection (F), in order to
12 serve an order for withholding upon a payor, an obligee or
13 public office shall follow the procedures set forth in this
14 subsection. After 20 days following service of the notice of
15 delinquency, the obligee or public office shall file with the
16 Clerk of the Circuit Court an affidavit, with the copy of the
17 notice of delinquency attached thereto, stating:
18 (a) that the notice of delinquency has been duly
19 served and the date on which service was effected; and
20 (b) that the obligor has not filed a petition to
21 stay service, or in the alternative
22 (c) that the obligor has waived the provisions of
23 subparagraphs (a) and (b) of this paragraph (1) in
24 accordance with subsection (C)(4).
25 (2) Upon request of the obligee or public office, the
26 Clerk of the Circuit Court shall: (a) make available any
27 record of payment; and (b) determine that the file contains a
28 copy of the affidavit described in paragraph (1). The Clerk
29 shall then provide to the obligee or public office a
30 specially certified copy of the order for withholding and the
31 notice of delinquency indicating that the preconditions for
32 service have been met.
33 (3) The obligee or public office may then serve the
34 notice of delinquency and order for withholding on the payor,
-30- LRB9003396DJcd
1 its superintendent, manager or other agent, by regular or
2 certified mail or facsimile personal delivery. A proof of
3 service shall be filed with the Clerk of the Circuit Court.
4 (F) Subsequent Service of Order for Withholding.
5 (1) Notwithstanding the provisions of this Section, at
6 any time after the court has ordered immediate service of an
7 order for withholding or after initial service of an order
8 for withholding pursuant to subsection (E), the obligee or
9 public office may serve the order for withholding upon any
10 payor of the obligor without further notice to the obligor.
11 The obligee or public office shall provide notice to the
12 payor, pursuant to paragraph (6) of subsection (I), of any
13 payments that have been made through previous withholding or
14 any other method.
15 (2) The Clerk of the Circuit Court shall, upon request,
16 provide the obligee or public office with specially certified
17 copies of the order for withholding or the notice of
18 delinquency or both whenever the Court has ordered immediate
19 service of an order for withholding or an affidavit has been
20 placed in the court file indicating that the preconditions
21 for service have been previously met or that the requirements
22 for immediate withholding under paragraph (8) of subsection B
23 have been previously met. The obligee or public office may
24 then serve the order for withholding on the payor, its
25 superintendent, manager or other agent by regular or
26 certified mail or facsimile personal delivery. A proof of
27 service shall be filed with the Clerk of the Circuit Court.
28 (3) If a delinquency has accrued for any reason, the
29 obligee or public office may serve a notice of delinquency
30 upon the obligor pursuant to subsection (C). The obligor may
31 prevent the notice of delinquency from being served upon the
32 payor by utilizing the procedures set forth in subsection
33 (D). If no petition to stay service has been filed within the
34 required 20 day time period, the obligee or public office may
-31- LRB9003396DJcd
1 serve the notice of delinquency on the payor by utilizing the
2 procedures for service set forth in subsection (E).
3 (4) New service of an order for withholding is not
4 required in order to resume withholding of income in the case
5 of an obligor with respect to whom an order for withholding
6 was previously served on the payor if withholding of income
7 was terminated because of an interruption in the obligor's
8 employment of less than 180 days.
9 (G) Duties of Payor.
10 (1) It shall be the duty of any payor who has been
11 served with a copy of the specially certified order for
12 withholding and any notice of delinquency to deduct and pay
13 over income as provided in this subsection. The payor shall
14 deduct the amount designated in the order for withholding, as
15 supplemented by the notice of delinquency and any notice
16 provided pursuant to paragraph (6) of subsection (I),
17 beginning no later than the next payment of income which is
18 payable to the obligor that occurs 14 days following the date
19 the order and any notice were mailed by certified mail or
20 placed for personal delivery. The payor may combine all
21 amounts withheld for the benefit of an obligee or public
22 office into a single payment and transmit the payment with a
23 listing of obligors from whom withholding has been effected.
24 The payor shall pay the amount withheld to the obligee or
25 public office within 10 calendar days of the date income is
26 paid to the obligor in accordance with the order for
27 withholding and any subsequent notification received from the
28 public office redirecting payments. If the payor knowingly
29 fails to pay any amount withheld to the obligee or public
30 office within 10 calendar days of the date income is paid to
31 the obligor, the payor shall pay a penalty of $100 for each
32 day that the withheld amount is not paid to the obligee or
33 public office after the period of 10 calendar days has
34 expired. The failure of a payor, on more than one occasion,
-32- LRB9003396DJcd
1 to pay amounts withheld to the obligee or public office
2 within 10 calendar days of the date income is not paid to the
3 obligor creates a presumption that the payor knowingly failed
4 to pay the amounts. This penalty may be collected in a civil
5 action which may be brought against the payor in favor of the
6 obligee. A finding of a payor's nonperformance within the
7 time required under this Section must be documented by a
8 certified mail return receipt showing the date the order for
9 withholding was served on the payor. For purposes of this
10 Section, a withheld amount shall be considered paid by a
11 payor on the date it is mailed by the payor, or on the date
12 an electronic funds transfer of the amount has been initiated
13 by the payor, or on the date delivery of the amount has been
14 initiated by the payor. For each deduction, the payor shall
15 provide the obligee or public office, at the time of
16 transmittal, with the date income was paid from which support
17 was withheld.
18 Upon receipt of an order requiring that a minor child be
19 named as a beneficiary of a health insurance plan available
20 through an employer or labor union or trade union, the
21 employer or labor union or trade union shall immediately
22 enroll the minor child as a beneficiary in the health
23 insurance plan designated by the court order. The employer
24 shall withhold any required premiums and pay over any amounts
25 so withheld and any additional amounts the employer pays to
26 the insurance carrier in a timely manner. The employer or
27 labor union or trade union shall mail to the obligee, within
28 15 days of enrollment or upon request, notice of the date of
29 coverage, information on the dependent coverage plan, and all
30 forms necessary to obtain reimbursement for covered health
31 expenses, such as would be made available to a new employee.
32 When an order for dependent coverage is in effect and the
33 insurance coverage is terminated or changed for any reason,
34 the employer or labor union or trade union shall notify the
-33- LRB9003396DJcd
1 obligee within 10 days of the termination or change date
2 along with notice of conversion privileges.
3 For withholding of income, the payor shall be entitled to
4 receive a fee not to exceed $5 per month to be taken from the
5 income to be paid to the obligor.
6 (2) Whenever the obligor is no longer receiving income
7 from the payor, the payor shall return a copy of the order
8 for withholding to the obligee or public office and shall
9 provide information for the purpose of enforcing this
10 Section.
11 (3) Withholding of income under this Section shall be
12 made without regard to any prior or subsequent garnishments,
13 attachments, wage assignments, or any other claims of
14 creditors. Withholding of income under this Section shall
15 not be in excess of the maximum amounts permitted under the
16 federal Consumer Credit Protection Act. If the payor has been
17 served with more than one order for withholding pertaining to
18 the same obligor, the payor shall allocate income available
19 for withholding on a proportionate share basis, giving
20 priority to current support payments. If there is any income
21 available for withholding after withholding for all current
22 support obligations, the payor shall allocate the income to
23 past due support payments ordered in non-AFDC matters and
24 then to past due support payments ordered in AFDC matters,
25 both on a proportionate share basis. Payment as required by
26 the order for withholding shall be a complete defense by the
27 payor against any claims of the obligor or his creditors as
28 to the sum so paid.
29 (4) No payor shall discharge, discipline, refuse to hire
30 or otherwise penalize any obligor because of the duty to
31 withhold income.
32 (H) Petitions to Stay Service or to Modify, Suspend or
33 Terminate Orders for Withholding.
34 (1) When an obligor files a petition to stay service,
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1 the court, after due notice to all parties, shall hear the
2 matter as soon as practicable and shall enter an order
3 granting or denying relief, amending the notice of
4 delinquency, amending the order for withholding, where
5 applicable, or otherwise resolving the matter. If the court
6 finds that a delinquency existed when the notice of
7 delinquency was served upon the obligor, in an amount of at
8 least one month's support obligation, or that the obligor was
9 at least 30 days late in paying all or part of the order for
10 support, the court shall order immediate service of the order
11 for withholding. Where the court cannot promptly resolve any
12 dispute over the amount of the delinquency, the court may
13 order immediate service of the order for withholding as to
14 any undisputed amounts specified in an amended notice of
15 delinquency, and may continue the hearing on the disputed
16 amounts.
17 (2) At any time, an obligor, obligee, public office or
18 Clerk of the Circuit Court may petition the court to:
19 (a) Modify, suspend or terminate the order for
20 withholding because of a modification, suspension or
21 termination of the underlying order for support; or
22 (b) Modify the amount of income to be withheld to
23 reflect payment in full or in part of the delinquency or
24 arrearage by income withholding or otherwise; or
25 (c) Suspend the order for withholding because of
26 inability to deliver income withheld to the obligee due
27 to the obligee's failure to provide a mailing address or
28 other means of delivery.
29 (3) The obligor, obligee or public office shall serve on
30 the payor, by certified mail or personal delivery, a copy of
31 any order entered pursuant to this subsection that affects
32 the duties of the payor.
33 (4) At any time, a public office or Clerk of the Circuit
34 Court may serve a notice on the payor to:
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1 (a) cease withholding of income for payment of
2 current support for a child when the support obligation
3 for that child has automatically ceased under the order
4 for support through emancipation or otherwise; or
5 (b) cease withholding of income for payment of
6 delinquency or arrearage when the delinquency or
7 arrearage has been paid in full.
8 (5) The notice provided for under paragraph (4) of this
9 subsection shall be served on the payor by ordinary mail, and
10 a copy shall be provided to the obligor and the obligee. A
11 copy of the notice shall be filed with the Clerk of the
12 Circuit Court.
13 (6) The order for withholding shall continue to be
14 binding upon the payor until service of any order of the
15 court or notice entered or provided for under this
16 subsection.
17 (I) Additional Duties.
18 (1) An obligee who is receiving income withholding
19 payments under this Section shall notify the payor, if the
20 obligee receives the payments directly from the payor, or the
21 public office or the Clerk of the Circuit Court, as
22 appropriate, of any change of address within 7 days of such
23 change.
24 (2) An obligee who is a recipient of public aid shall
25 send a copy of any notice of delinquency filed pursuant to
26 subsection (C) to the Bureau of Child Support of the Illinois
27 Department of Public Aid.
28 (3) Each obligor shall notify the obligee and the Clerk
29 of the Circuit Court of any change of address within 7 days.
30 (4) An obligor whose income is being withheld or who has
31 been served with a notice of delinquency pursuant to this
32 Section shall notify the obligee and the Clerk of the Circuit
33 Court of any new payor, within 7 days.
34 (5) When the Illinois Department of Public Aid is no
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1 longer authorized to receive payments for the obligee, it
2 shall, within 7 days, notify the payor or, where appropriate,
3 the Clerk of the Circuit Court, to redirect income
4 withholding payments to the obligee.
5 (6) The obligee or public office shall provide notice to
6 the payor and Clerk of the Circuit Court of any other support
7 payment made, including but not limited to, a set-off under
8 federal and State law or partial payment of the delinquency
9 or arrearage, or both.
10 (7) Any public office and Clerk of the Circuit Court
11 which collects, disburses or receives payments pursuant to
12 orders for withholding shall maintain complete, accurate, and
13 clear records of all payments and their disbursements.
14 Certified copies of payment records maintained by a public
15 office or Clerk of the Circuit Court shall, without further
16 proof, be admitted into evidence in any legal proceedings
17 under this Section.
18 (8) The Illinois Department of Public Aid shall design
19 suggested legal forms for proceeding under this Section and
20 shall make available to the courts such forms and
21 informational materials which describe the procedures and
22 remedies set forth herein for distribution to all parties in
23 support actions.
24 (9) At the time of transmitting each support payment,
25 the clerk of the circuit court shall provide the obligee or
26 public office, as appropriate, with any information furnished
27 by the payor as to the date income was paid from which such
28 support was withheld.
29 (J) Penalties.
30 (1) Where a payor wilfully fails to withhold or pay over
31 income pursuant to a properly served, specially certified
32 order for withholding and any notice of delinquency, or
33 wilfully discharges, disciplines, refuses to hire or
34 otherwise penalizes an obligor as prohibited by subsection
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1 (G), or otherwise fails to comply with any duties imposed by
2 this Section, the obligee, public office or obligor, as
3 appropriate, may file a complaint with the court against the
4 payor. The clerk of the circuit court shall notify the
5 obligee or public office, as appropriate, and the obligor and
6 payor of the time and place of the hearing on the complaint.
7 The court shall resolve any factual dispute including, but
8 not limited to, a denial that the payor is paying or has paid
9 income to the obligor. Upon a finding in favor of the
10 complaining party, the court:
11 (a) Shall enter judgment and direct the enforcement
12 thereof for the total amount that the payor wilfully
13 failed to withhold or pay over; and
14 (b) May order employment or reinstatement of or
15 restitution to the obligor, or both, where the obligor
16 has been discharged, disciplined, denied employment or
17 otherwise penalized by the payor and may impose a fine
18 upon the payor not to exceed $200.
19 (2) Any obligee, public office or obligor who wilfully
20 initiates a false proceeding under this Section or who
21 wilfully fails to comply with the requirements of this
22 Section shall be punished as in cases of contempt of court.
23 (K) Alternative Procedures for Entry and Service of an Order
24 for Withholding.
25 (1) Effective January 1, 1987, in any matter in which an
26 order for withholding has not been entered for any reason,
27 based upon the last order for support that has been entered,
28 and in which the obligor has become delinquent in payment of
29 an amount equal to at least one month's support obligation
30 pursuant to the last order for support or is at least 30 days
31 late in complying with all or part of the order for support,
32 the obligee or public office may prepare and serve an order
33 for withholding pursuant to the procedures set forth in this
34 subsection.
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1 (2) The obligee or public office shall:
2 (a) Prepare a proposed order for withholding for
3 immediate service as provided by paragraphs (1) and (3)
4 of subsection (B), except that the minimum 20%
5 delinquency payment shall be used;
6 (b) Prepare a notice of delinquency as provided by
7 paragraphs (1) and (2) of subsection (C), except the
8 notice shall state further that the order for withholding
9 has not been entered by the court and the conditions
10 under which the order will be entered; and
11 (c) Serve the notice of delinquency and form
12 petition to stay service as provided by paragraph (3) of
13 subsection (C), together with the proposed order for
14 withholding, which shall be marked "COPY ONLY".
15 (3) After 20 days following service of the notice of
16 delinquency and proposed order for withholding, in lieu of
17 the provisions of subsection (E), the obligee or public
18 office shall file with the Clerk of the Circuit Court an
19 affidavit, with a copy of the notice of delinquency and
20 proposed order for withholding attached thereto, stating
21 that:
22 (a) The notice of delinquency and proposed order
23 for withholding have been served upon the obligor and the
24 date on which service was effected;
25 (b) The obligor has not filed a petition to stay
26 service within 20 days of service of such notice and
27 order; and
28 (c) The proposed order for withholding accurately
29 states the terms and amounts contained in the last order
30 for support.
31 (4) Upon the court's satisfaction that the procedures
32 set forth in this subsection have been met, it shall enter
33 the order for withholding.
34 (5) The Clerk shall then provide to the obligee or
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1 public office a specially certified copy of the order for
2 withholding and the notice of delinquency indicating that the
3 preconditions for service have been met.
4 (6) The obligee or public office shall serve the
5 specially certified copies of the order for withholding and
6 the notice of delinquency on the payor, its superintendent,
7 manager or other agent by certified mail or personal
8 delivery. A proof of service shall be filed with the Clerk
9 of the Circuit Court.
10 (7) If the obligor requests in writing that income
11 withholding become effective prior to becoming delinquent in
12 payment of an amount equal to one month's support obligation
13 pursuant to the last order for support, or prior to becoming
14 30 days late in paying all or part of the order for support,
15 the obligee or public office shall file an affidavit with the
16 Clerk of the circuit Court, with a proposed order for
17 withholding attached, stating that the proposed order
18 accurately states the terms and amounts contained in the last
19 order for support and the obligor's request for immediate
20 service. The provisions of paragraphs (4) through (6) of
21 this subsection shall apply, except that a notice of
22 delinquency shall not be required.
23 (8) All other provisions of this Section shall be
24 applicable with respect to the provisions of this subsection
25 (K), except that under paragraph (1) of subsection (H), the
26 court may also amend the proposed order for withholding to
27 conform to the last order for support.
28 (9) Nothing in this subsection shall be construed as
29 limiting the requirements of paragraph (1) of subsection (B)
30 with respect to the entry of a separate order for withholding
31 upon entry of any order for support.
32 (L) Remedies in Addition to Other Laws.
33 (1) The rights, remedies, duties and penalties created
34 by this Section are in addition to and not in substitution
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1 for any other rights, remedies, duties and penalties created
2 by any other law.
3 (2) Nothing in this Section shall be construed as
4 invalidating any assignment of wages or benefits executed
5 prior to January 1, 1984.
6 (Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
7 eff. 12-2-94; 89-507, eff. 7-1-97.)
8 Section 91. The Illinois Marriage and Dissolution of
9 Marriage Act is amended by changing Section 706.1 as follows:
10 (750 ILCS 5/706.1) (from Ch. 40, par. 706.1)
11 (Text of Section before amendment by P.A. 89-507)
12 Sec. 706.1. Withholding of Income to Secure Payment of
13 Support.
14 (A) Definitions.
15 (1) "Order for support" means any order of the court
16 which provides for periodic payment of funds for the support
17 of a child or maintenance of a spouse, whether temporary or
18 final, and includes any such order which provides for:
19 (a) Modification or resumption of, or payment of
20 arrearage accrued under, a previously existing order;
21 (b) Reimbursement of support; or
22 (c) Enrollment in a health insurance plan that is
23 available to the obligor through an employer or labor
24 union or trade union.
25 (2) "Arrearage" means the total amount of unpaid support
26 obligations.
27 (3) "Delinquency" means any payment under an order for
28 support which becomes due and remains unpaid after an order
29 for withholding has been entered under subsection (B) or, for
30 purposes of subsection (K), after the last order for support
31 was entered for which no order for withholding was entered.
32 (4) "Income" means any form of periodic payment to an
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1 individual, regardless of source, including, but not limited
2 to: wages, salary, commission, compensation as an independent
3 contractor, workers' compensation, disability, annuity and
4 retirement benefits, lottery prize awards, insurance
5 proceeds, vacation pay, bonuses, profit-sharing payments and
6 any other payments, made by any person, private entity,
7 federal or state government, any unit of local government,
8 school district or any entity created by Public Act; however,
9 "income" excludes:
10 (a) Any amounts required by law to be withheld,
11 other than creditor claims, including, but not limited
12 to, federal, State and local taxes, Social Security and
13 other retirement and disability contributions;
14 (b) Union dues;
15 (c) Any amounts exempted by the federal Consumer
16 Credit Protection Act;
17 (d) Public assistance payments; and
18 (e) Unemployment insurance benefits except as
19 provided by law.
20 Any other State or local laws which limit or exempt
21 income or the amount or percentage of income that can be
22 withheld shall not apply.
23 (5) "Obligor" means the individual who owes a duty to
24 make payments under an order for support.
25 (6) "Obligee" means the individual to whom a duty of
26 support is owed or the individual's legal representative.
27 (7) "Payor" means any payor of income to an obligor.
28 (8) "Public office" means any elected official or any
29 State or local agency which is or may become responsible by
30 law for enforcement of, or which is or may become authorized
31 to enforce, an order for support, including, but not limited
32 to: the Attorney General, the Illinois Department of Public
33 Aid, the Illinois Department of Mental Health and
34 Developmental Disabilities, the Illinois Department of
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1 Children and Family Services, and the various State's
2 Attorneys, Clerks of the Circuit Court and supervisors of
3 general assistance.
4 (9) "Premium" means the dollar amount for which the
5 obligor is liable to his employer or labor union or trade
6 union and which must be paid to enroll or maintain a child in
7 a health insurance plan that is available to the obligor
8 through an employer or labor union or trade union.
9 (B) Entry of an Order for Withholding.
10 (1) Upon entry of any order for support on or after
11 January 1, 1984, the court shall enter a separate order for
12 withholding which shall not take effect unless the obligor
13 becomes delinquent in paying the order for support or the
14 obligor requests an earlier effective date; except that the
15 court may require the order for withholding to take effect
16 immediately.
17 On or after January 1, 1989, the court shall require the
18 order for withholding to take effect immediately, unless a
19 written agreement is reached between and signed by both
20 parties providing for an alternative arrangement, approved
21 and entered into the record by the court, which insures
22 payment of support. In that case, the court shall enter the
23 order for withholding which will not take effect unless the
24 obligor becomes delinquent in paying the order for support.
25 Upon entry of any order of support on or after September
26 11, 1989, if the obligor is not a United States citizen, the
27 obligor shall provide to the court the obligor's alien
28 registration number, passport number, and home country's
29 social security or national health number, if applicable; the
30 court shall make the information part of the record in the
31 case.
32 (2) An order for withholding shall be entered upon
33 petition by the obligee or public office where an order for
34 withholding has not been previously entered.
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1 (3) The order for withholding shall:
2 (a) Direct any payor to withhold a dollar amount
3 equal to the order for support; and
4 (b) Direct any payor to withhold an additional
5 dollar amount, not less than 20% of the order for
6 support, until payment in full of any delinquency stated
7 in the notice of delinquency provided for in subsection
8 (C) or (F) of this Section; and
9 (c) Direct any payor or labor union or trade union
10 to enroll a child as a beneficiary of a health insurance
11 plan and withhold or cause to be withheld, if
12 applicable, any required premiums; and
13 (d) State the rights, remedies and duties of the
14 obligor under this Section; and
15 (e) Include the obligor's Social Security Number,
16 which the obligor shall disclose to the court; and
17 (f) Include the date that withholding for current
18 support terminates, which shall be the date of
19 termination of the current support obligation set forth
20 in the order for support.
21 (4) At the time the order for withholding is entered,
22 the Clerk of the Circuit Court shall provide a copy of the
23 order for withholding and the order for support to the
24 obligor and shall make copies available to the obligee and
25 public office. Any copy of the order for withholding
26 furnished to the parties under this subsection shall be
27 stamped "Not Valid".
28 (5) The order for withholding shall remain in effect for
29 as long as the order for support upon which it is based.
30 (6) The failure of an order for withholding to state an
31 arrearage is not conclusive of the issue of whether an
32 arrearage is owing.
33 (7) Notwithstanding the provisions of this subsection,
34 if the court finds at the time of any hearing that an
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1 arrearage has accrued in an amount equal to at least one
2 month's support obligation or that the obligor is 30 days
3 late in paying all or part of the order for support, the
4 court shall order immediate service of the order for
5 withholding upon the payor.
6 (8) Where the court has not required that the order for
7 withholding take effect immediately, the obligee or public
8 office may prepare and serve a notice for immediate
9 withholding upon the obligor by ordinary mail addressed to
10 the obligor at his or her last known address. The notice
11 shall state that the following circumstances have occurred:
12 (a) The parties' written agreement providing an
13 alternative arrangement to immediate withholding under
14 paragraph (1) of this subsection no longer provides for
15 timely payment of all support due; or
16 (b) The obligor has not made timely payments in
17 that the obligor has been at least 7 days late in paying
18 all or part of the order for support any of the last 6
19 consecutive dates payments were due prior to the date of
20 the notice for immediate withholding.
21 The notice for immediate withholding shall clearly state
22 that a specially certified copy of the order for withholding
23 will be sent to the payor, unless the obligor files a
24 petition contesting immediate withholding within 20 days
25 after service of the notice; however, the grounds for the
26 petition shall be limited to a dispute concerning whether the
27 circumstances stated in the notice have occurred or the
28 identity of the obligor. It shall not be grounds for the
29 petition that the obligor has made all payments due by the
30 date of the petition.
31 If the obligor files a petition contesting immediate
32 withholding within the 20-day period required under this
33 paragraph, the Clerk of the Circuit Court shall notify the
34 obligor and the obligee or public office, as appropriate, of
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1 the time and place of the hearing on the petition. Upon
2 hearing the petition, the court shall enter an order granting
3 or denying relief. It shall not be grounds for granting the
4 obligor's petition that he or she has made all payments due
5 by the date of hearing. If the court denies the obligor's
6 petition, it shall order immediate service of the order for
7 withholding and direct the clerk to provide a specially
8 certified copy of the order for withholding to the obligee or
9 public office indicating that the requirements for immediate
10 withholding under this paragraph have been met.
11 If the obligor does not file a petition contesting
12 immediate withholding within the 20-day period, the obligee
13 or public office shall file with the Clerk of the Circuit
14 Court an affidavit, with a copy of the notice for immediate
15 withholding attached thereto, stating that the notice was
16 duly served and the date on which service was effected, and
17 that the obligor has not filed a petition contesting
18 immediate withholding. The clerk shall then provide to the
19 obligee or public office a specially certified copy of the
20 order for withholding indicating that the requirements for
21 immediate withholding under this paragraph have been met.
22 Upon receipt of a specially certified copy of the order
23 for withholding, the obligee or public office may serve the
24 order on the payor, its superintendent, manager or other
25 agent, by certified mail or personal delivery. A proof of
26 service shall be filed with the Clerk of the Circuit Court.
27 (C) Notice of Delinquency.
28 (1) Whenever an obligor becomes delinquent in payment of
29 an amount equal to at least one month's support obligation
30 pursuant to the order for support or is at least 30 days late
31 in complying with all or part of the order for support,
32 whichever occurs first, the obligee or public office may
33 prepare and serve a verified notice of delinquency, together
34 with a form petition to stay service, pursuant to paragraph
-46- LRB9003396DJcd
1 (3) of this subsection.
2 (2) The notice of delinquency shall recite the terms of
3 the order for support and contain a computation of the period
4 and total amount of the delinquency, as of the date of the
5 notice. The notice shall clearly state that it will be sent
6 to the payor, together with a specially certified copy of the
7 order for withholding, except as provided in subsection (F),
8 unless the obligor files a petition to stay service in
9 accordance with paragraph (1) of subsection (D).
10 (3) The notice of delinquency shall be served by
11 ordinary mail addressed to the obligor at his or her last
12 known address.
13 (4) The obligor may execute a written waiver of the
14 provisions of paragraphs (1) through (3) of this subsection
15 and request immediate service upon the payor.
16 (D) Procedures to Avoid Income Withholding.
17 (1) Except as provided in subsection (F), the obligor
18 may prevent an order for withholding from being served by
19 filing a petition to stay service with the Clerk of the
20 Circuit Court, within 20 days after service of the notice of
21 delinquency; however, the grounds for the petition to stay
22 service shall be limited to:
23 (a) A dispute concerning the amount of current
24 support or the existence or amount of the delinquency;
25 (b) The identity of the obligor.
26 The Clerk of the Circuit Court shall notify the obligor
27 and the obligee or public office, as appropriate, of the time
28 and place of the hearing on the petition to stay service. The
29 court shall hold such hearing pursuant to the provisions of
30 subsection (H).
31 (2) Except as provided in subsection (F), filing of a
32 petition to stay service, within the 20-day period required
33 under this subsection, shall prohibit the obligee or public
34 office from serving the order for withholding on any payor of
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1 the obligor.
2 (E) Initial Service of Order for Withholding.
3 (1) Except as provided in subsection (F), in order to
4 serve an order for withholding upon a payor, an obligee or
5 public office shall follow the procedures set forth in this
6 subsection. After 20 days following service of the notice of
7 delinquency, the obligee or public office shall file with the
8 Clerk of the Circuit Court an affidavit, with the copy of the
9 notice of delinquency attached thereto, stating:
10 (a) that the notice of delinquency has been duly
11 served and the date on which service was effected; and
12 (b) that the obligor has not filed a petition to
13 stay service, or in the alternative
14 (c) that the obligor has waived the provisions of
15 subparagraphs (a) and (b) of this paragraph (1) in
16 accordance with subsection (C)(4).
17 (2) Upon request of the obligee or public office, the
18 Clerk of the Circuit Court shall: (a) make available any
19 record of payment; and (b) determine that the file contains a
20 copy of the affidavit described in paragraph (1). The Clerk
21 shall then provide to the obligee or public office a
22 specially certified copy of the order for withholding and the
23 notice of delinquency indicating that the preconditions for
24 service have been met.
25 (3) The obligee or public office may then serve the
26 notice of delinquency and order for withholding on the payor,
27 its superintendent, manager or other agent, by regular or
28 certified mail or facsimile personal delivery. A proof of
29 service shall be filed with the Clerk of the Circuit Court.
30 (F) Subsequent Service of Order for Withholding.
31 (1) Notwithstanding the provisions of this Section, at
32 any time after the court has ordered immediate service of an
33 order for withholding or after initial service of an order
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1 for withholding pursuant to subsection (E), the obligee or
2 public office may serve the order for withholding upon any
3 payor of the obligor without further notice to the obligor.
4 The obligee or public office shall provide notice to the
5 payor, pursuant to paragraph (6) of subsection (I), of any
6 payments that have been made through previous withholding or
7 any other method.
8 (2) The Clerk of the Circuit Court shall, upon request,
9 provide the obligee or public office with specially certified
10 copies of the order for withholding or the notice of
11 delinquency or both whenever the Court has ordered immediate
12 service of an order for withholding or an affidavit has been
13 placed in the court file indicating that the preconditions
14 for service have been previously met. The obligee or public
15 office may then serve the order for withholding on the payor,
16 its superintendent, manager or other agent by regular or
17 certified mail or facsimile personal delivery. A proof of
18 service shall be filed with the Clerk of the Circuit Court.
19 (3) If a delinquency has accrued for any reason, the
20 obligee or public office may serve a notice of delinquency
21 upon the obligor pursuant to subsection (C). The obligor may
22 prevent the notice of delinquency from being served upon the
23 payor by utilizing the procedures set forth in subsection
24 (D). If no petition to stay service has been filed within the
25 required 20 day time period, the obligee or public office may
26 serve the notice of delinquency on the payor by utilizing the
27 procedures for service set forth in subsection (E).
28 (4) New service of an order for withholding is not
29 required in order to resume withholding of income in the case
30 of an obligor with respect to whom an order for withholding
31 was previously served on the payor if withholding of income
32 was terminated because of an interruption in the obligor's
33 employment of less than 180 days.
34 (G) Duties of Payor.
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1 (1) It shall be the duty of any payor who has been
2 served with a copy of the specially certified order for
3 withholding and any notice of delinquency to deduct and pay
4 over income as provided in this subsection. The payor shall
5 deduct the amount designated in the order for withholding, as
6 supplemented by the notice of delinquency and any notice
7 provided pursuant to paragraph (6) of subsection (I),
8 beginning no later than the next payment of income which is
9 payable to the obligor that occurs 14 days following the date
10 the order and any notice were mailed by certified mail or
11 placed for personal delivery. The payor may combine all
12 amounts withheld for the benefit of an obligee or public
13 office into a single payment and transmit the payment with a
14 listing of obligors from whom withholding has been effected.
15 The payor shall pay the amount withheld to the obligee or
16 public office within 10 calendar days of the date income is
17 paid to the obligor in accordance with the order for
18 withholding and any subsequent notification received from the
19 public office redirecting payments. If the payor knowingly
20 fails to pay any amount withheld to the obligee or public
21 office within 10 calendar days of the date income is paid to
22 the obligor, the payor shall pay a penalty of $100 for each
23 day that the withheld amount is not paid to the obligee or
24 public office after the period of 10 calendar days has
25 expired. The failure of a payor, on more than one occasion,
26 to pay amounts withheld to the obligee or public office
27 within 10 calendar days of the date income is not paid to the
28 obligor creates a presumption that the payor knowingly failed
29 to pay the amounts. This penalty may be collected in a civil
30 action which may be brought against the payor in favor of the
31 obligee. A finding of a payor's nonperformance within the
32 time required under this Section must be documented by a
33 certified mail return receipt showing the date the order for
34 withholding was served on the payor. For purposes of this
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1 Section, a withheld amount shall be considered paid by a
2 payor on the date it is mailed by the payor, or on the date
3 an electronic funds transfer of the amount has been initiated
4 by the payor, or on the date delivery of the amount has been
5 initiated by the payor. For each deduction, the payor shall
6 provide the obligee or public office, at the time of
7 transmittal, with the date income was paid from which support
8 was withheld.
9 Upon receipt of an order requiring that a minor child be
10 named as a beneficiary of a health insurance plan available
11 through an employer or labor union or trade union, the
12 employer or labor union or trade union shall immediately
13 enroll the minor child as a beneficiary in the health
14 insurance plan designated by the court order. The employer
15 shall withhold any required premiums and pay over any amounts
16 so withheld and any additional amounts the employer pays to
17 the insurance carrier in a timely manner. The employer or
18 labor union or trade union shall mail to the obligee, within
19 15 days of enrollment or upon request, notice of the date of
20 coverage, information on the dependent coverage plan, and all
21 forms necessary to obtain reimbursement for covered health
22 expenses, such as would be made available to a new employee.
23 When an order for dependent coverage is in effect and the
24 insurance coverage is terminated or changed for any reason,
25 the employer or labor union or trade union shall notify the
26 obligee within 10 days of the termination or change date
27 along with notice of conversion privileges.
28 For withholding of income, the payor shall be entitled to
29 receive a fee not to exceed $5 per month to be taken from the
30 income to be paid to the obligor.
31 (2) Whenever the obligor is no longer receiving income
32 from the payor, the payor shall return a copy of the order
33 for withholding to the obligee or public office and shall
34 provide information for the purpose of enforcing this
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1 Section.
2 (3) Withholding of income under this Section shall be
3 made without regard to any prior or subsequent garnishments,
4 attachments, wage assignments, or any other claims of
5 creditors. Withholding of income under this Section shall
6 not be in excess of the maximum amounts permitted under the
7 federal Consumer Credit Protection Act. If the payor has been
8 served with more than one order for withholding pertaining to
9 the same obligor, the payor shall allocate income available
10 for withholding on a proportionate share basis, giving
11 priority to current support payments. If there is any income
12 available for withholding after withholding for all current
13 support obligations, the payor shall allocate the income to
14 past due support payments ordered in non-AFDC matters and
15 then to past due support payments ordered in AFDC matters,
16 both on a proportionate share basis. Payment as required by
17 the order for withholding shall be a complete defense by the
18 payor against any claims of the obligor or his creditors as
19 to the sum so paid.
20 (4) No payor shall discharge, discipline, refuse to hire
21 or otherwise penalize any obligor because of the duty to
22 withhold income.
23 (H) Petitions to Stay Service or to Modify, Suspend or
24 Terminate Orders for Withholding.
25 (1) When an obligor files a petition to stay service,
26 the court, after due notice to all parties, shall hear the
27 matter as soon as practicable and shall enter an order
28 granting or denying relief, amending the notice of
29 delinquency, amending the order for withholding, where
30 applicable, or otherwise resolving the matter. If the court
31 finds that a delinquency existed when the notice of
32 delinquency was served upon the obligor, in an amount of at
33 least one month's support obligation, or that the obligor was
34 at least 30 days late in paying all or part of the order for
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1 support, the court shall order immediate service of the order
2 for withholding. Where the court cannot promptly resolve any
3 dispute over the amount of the delinquency, the court may
4 order immediate service of the order for withholding as to
5 any undisputed amounts specified in an amended notice of
6 delinquency, and may continue the hearing on the disputed
7 amounts.
8 (2) At any time, an obligor, obligee, public office or
9 Clerk of the Circuit Court may petition the court to:
10 (a) Modify, suspend or terminate the order for
11 withholding because of a modification, suspension or
12 termination of the underlying order for support; or
13 (b) Modify the amount of income to be withheld to
14 reflect payment in full or in part of the delinquency or
15 arrearage by income withholding or otherwise; or
16 (c) Suspend the order for withholding because of
17 inability to deliver income withheld to the obligee due
18 to the obligee's failure to provide a mailing address or
19 other means of delivery.
20 (3) The obligor, obligee or public office shall serve on
21 the payor, by certified mail or personal delivery, a copy of
22 any order entered pursuant to this subsection that affects
23 the duties of the payor.
24 (4) At any time, a public office or Clerk of the Circuit
25 Court may serve a notice on the payor to:
26 (a) cease withholding of income for payment of
27 current support for a child when the support obligation
28 for that child has automatically ceased under the order
29 for support through emancipation or otherwise; or
30 (b) cease withholding of income for payment of
31 delinquency or arrearage when the delinquency or
32 arrearage has been paid in full.
33 (5) The notice provided for under paragraph (4) of this
34 subsection shall be served on the payor by ordinary mail, and
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1 a copy shall be provided to the obligor and the obligee. A
2 copy of the notice shall be filed with the Clerk of the
3 Circuit Court.
4 (6) The order for withholding shall continue to be
5 binding upon the payor until service of any order of the
6 court or notice entered or provided for under this
7 subsection.
8 (I) Additional Duties.
9 (1) An obligee who is receiving income withholding
10 payments under this Section shall notify the payor, if the
11 obligee receives the payments directly from the payor, or the
12 public office or the Clerk of the Circuit Court, as
13 appropriate, of any change of address within 7 days of such
14 change.
15 (2) An obligee who is a recipient of public aid shall
16 send a copy of any notice of delinquency filed pursuant to
17 subsection (C) to the Bureau of Child Support of the Illinois
18 Department of Public Aid.
19 (3) Each obligor shall notify the obligee and the Clerk
20 of the Circuit Court of any change of address within 7 days.
21 (4) An obligor whose income is being withheld or who has
22 been served with a notice of delinquency pursuant to this
23 Section shall notify the obligee and the Clerk of the Circuit
24 Court of any new payor, within 7 days.
25 (5) When the Illinois Department of Public Aid is no
26 longer authorized to receive payments for the obligee, it
27 shall, within 7 days, notify the payor or, where appropriate,
28 the Clerk of the Circuit Court, to redirect income
29 withholding payments to the obligee.
30 (6) The obligee or public office shall provide notice to
31 the payor and Clerk of the Circuit Court of any other support
32 payment made, including but not limited to, a set-off under
33 federal and State law or partial payment of the delinquency
34 or arrearage, or both.
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1 (7) Any public office and Clerk of the Circuit Court
2 which collects, disburses or receives payments pursuant to
3 orders for withholding shall maintain complete, accurate, and
4 clear records of all payments and their disbursements.
5 Certified copies of payment records maintained by a public
6 office or Clerk of the Circuit Court shall, without further
7 proof, be admitted into evidence in any legal proceedings
8 under this Section.
9 (8) The Illinois Department of Public Aid shall design
10 suggested legal forms for proceeding under this Section and
11 shall make available to the courts such forms and
12 informational materials which describe the procedures and
13 remedies set forth herein for distribution to all parties in
14 support actions.
15 (9) At the time of transmitting each support payment,
16 the clerk of the circuit court shall provide the obligee or
17 public office, as appropriate, with any information furnished
18 by the payor as to the date income was paid from which such
19 support was withheld.
20 (J) Penalties.
21 (1) Where a payor wilfully fails to withhold or pay over
22 income pursuant to a properly served, specially certified
23 order for withholding and any notice of delinquency, or
24 wilfully discharges, disciplines, refuses to hire or
25 otherwise penalizes an obligor as prohibited by subsection
26 (G), or otherwise fails to comply with any duties imposed by
27 this Section, the obligee, public office or obligor, as
28 appropriate, may file a complaint with the court against the
29 payor. The clerk of the circuit court shall notify the
30 obligee or public office, as appropriate, and the obligor and
31 payor of the time and place of the hearing on the complaint.
32 The court shall resolve any factual dispute including, but
33 not limited to, a denial that the payor is paying or has paid
34 income to the obligor. Upon a finding in favor of the
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1 complaining party, the court:
2 (a) Shall enter judgment and direct the enforcement
3 thereof for the total amount that the payor wilfully
4 failed to withhold or pay over; and
5 (b) May order employment or reinstatement of or
6 restitution to the obligor, or both, where the obligor
7 has been discharged, disciplined, denied employment or
8 otherwise penalized by the payor and may impose a fine
9 upon the payor not to exceed $200.
10 (2) Any obligee, public office or obligor who wilfully
11 initiates a false proceeding under this Section or who
12 wilfully fails to comply with the requirements of this
13 Section shall be punished as in cases of contempt of court.
14 (K) Alternative Procedures for Entry and Service of an Order
15 for Withholding.
16 (1) Effective January 1, 1987, in any matter in which an
17 order for withholding has not been entered for any reason,
18 based upon the last order for support that has been entered,
19 and in which the obligor has become delinquent in payment of
20 an amount equal to at least one month's support obligation
21 pursuant to the last order for support or is at least 30 days
22 late in complying with all or part of the order for support,
23 the obligee or public office may prepare and serve an order
24 for withholding pursuant to the procedures set forth in this
25 subsection.
26 (2) The obligee or public office shall:
27 (a) Prepare a proposed order for withholding for
28 immediate service as provided by paragraphs (1) and (3)
29 of subsection (B), except that the minimum 20%
30 delinquency payment shall be used;
31 (b) Prepare a notice of delinquency as provided by
32 paragraphs (1) and (2) of subsection (C), except the
33 notice shall state further that the order for withholding
34 has not been entered by the court and the conditions
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1 under which the order will be entered; and
2 (c) Serve the notice of delinquency and form
3 petition to stay service as provided by paragraph (3) of
4 subsection (C), together with the proposed order for
5 withholding, which shall be marked "COPY ONLY".
6 (3) After 20 days following service of the notice of
7 delinquency and proposed order for withholding, in lieu of
8 the provisions of subsection (E), the obligee or public
9 office shall file with the Clerk of the Circuit Court an
10 affidavit, with a copy of the notice of delinquency and
11 proposed order for withholding attached thereto, stating
12 that:
13 (a) The notice of delinquency and proposed order
14 for withholding have been served upon the obligor and the
15 date on which service was effected;
16 (b) The obligor has not filed a petition to stay
17 service within 20 days of service of such notice and
18 order; and
19 (c) The proposed order for withholding accurately
20 states the terms and amounts contained in the last order
21 for support.
22 (4) Upon the court's satisfaction that the procedures
23 set forth in this subsection have been met, it shall enter
24 the order for withholding.
25 (5) The Clerk shall then provide to the obligee or
26 public office a specially certified copy of the order for
27 withholding and the notice of delinquency indicating that the
28 preconditions for service have been met.
29 (6) The obligee or public office shall serve the
30 specially certified copies of the order for withholding and
31 the notice of delinquency on the payor, its superintendent,
32 manager or other agent by certified mail or personal
33 delivery. A proof of service shall be filed with the Clerk
34 of the Circuit Court.
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1 (7) If the obligor requests in writing that income
2 withholding become effective prior to becoming delinquent in
3 payment of an amount equal to one month's support obligation
4 pursuant to the last order for support, or prior to becoming
5 30 days late in paying all or part of the order for support,
6 the obligee or public office shall file an affidavit with the
7 Clerk of the circuit Court, with a proposed order for
8 withholding attached, stating that the proposed order
9 accurately states the terms and amounts contained in the last
10 order for support and the obligor's request for immediate
11 service. The provisions of paragraphs (4) through (6) of
12 this subsection shall apply, except that a notice of
13 delinquency shall not be required.
14 (8) All other provisions of this Section shall be
15 applicable with respect to the provisions of this subsection
16 (K), except that under paragraph (1) of subsection (H), the
17 court may also amend the proposed order for withholding to
18 conform to the last order for support.
19 (9) Nothing in this subsection shall be construed as
20 limiting the requirements of paragraph (1) of subsection (B)
21 with respect to the entry of a separate order for withholding
22 upon entry of any order for support.
23 (L) Remedies in Addition to Other Laws.
24 (1) The rights, remedies, duties and penalties created
25 by this Section are in addition to and not in substitution
26 for any other rights, remedies, duties and penalties created
27 by any other law.
28 (2) Nothing in this Section shall be construed as
29 invalidating any assignment of wages or benefits executed
30 prior to January 1, 1984.
31 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
32 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
33 (Text of Section after amendment by P.A.89-507)
34 Sec. 706.1. Withholding of Income to Secure Payment of
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1 Support.
2 (A) Definitions.
3 (1) "Order for support" means any order of the court
4 which provides for periodic payment of funds for the support
5 of a child or maintenance of a spouse, whether temporary or
6 final, and includes any such order which provides for:
7 (a) Modification or resumption of, or payment of
8 arrearage accrued under, a previously existing order;
9 (b) Reimbursement of support; or
10 (c) Enrollment in a health insurance plan that is
11 available to the obligor through an employer or labor
12 union or trade union.
13 (2) "Arrearage" means the total amount of unpaid support
14 obligations.
15 (3) "Delinquency" means any payment under an order for
16 support which becomes due and remains unpaid after an order
17 for withholding has been entered under subsection (B) or, for
18 purposes of subsection (K), after the last order for support
19 was entered for which no order for withholding was entered.
20 (4) "Income" means any form of periodic payment to an
21 individual, regardless of source, including, but not limited
22 to: wages, salary, commission, compensation as an independent
23 contractor, workers' compensation, disability, annuity and
24 retirement benefits, lottery prize awards, insurance
25 proceeds, vacation pay, bonuses, profit-sharing payments and
26 any other payments, made by any person, private entity,
27 federal or state government, any unit of local government,
28 school district or any entity created by Public Act; however,
29 "income" excludes:
30 (a) Any amounts required by law to be withheld,
31 other than creditor claims, including, but not limited
32 to, federal, State and local taxes, Social Security and
33 other retirement and disability contributions;
34 (b) Union dues;
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1 (c) Any amounts exempted by the federal Consumer
2 Credit Protection Act;
3 (d) Public assistance payments; and
4 (e) Unemployment insurance benefits except as
5 provided by law.
6 Any other State or local laws which limit or exempt
7 income or the amount or percentage of income that can be
8 withheld shall not apply.
9 (5) "Obligor" means the individual who owes a duty to
10 make payments under an order for support.
11 (6) "Obligee" means the individual to whom a duty of
12 support is owed or the individual's legal representative.
13 (7) "Payor" means any payor of income to an obligor.
14 (8) "Public office" means any elected official or any
15 State or local agency which is or may become responsible by
16 law for enforcement of, or which is or may become authorized
17 to enforce, an order for support, including, but not limited
18 to: the Attorney General, the Illinois Department of Public
19 Aid, the Illinois Department of Human Services, the Illinois
20 Department of Children and Family Services, and the various
21 State's Attorneys, Clerks of the Circuit Court and
22 supervisors of general assistance.
23 (9) "Premium" means the dollar amount for which the
24 obligor is liable to his employer or labor union or trade
25 union and which must be paid to enroll or maintain a child in
26 a health insurance plan that is available to the obligor
27 through an employer or labor union or trade union.
28 (B) Entry of an Order for Withholding.
29 (1) Upon entry of any order for support on or after
30 January 1, 1984, the court shall enter a separate order for
31 withholding which shall not take effect unless the obligor
32 becomes delinquent in paying the order for support or the
33 obligor requests an earlier effective date; except that the
34 court may require the order for withholding to take effect
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1 immediately.
2 On or after January 1, 1989, the court shall require the
3 order for withholding to take effect immediately, unless a
4 written agreement is reached between and signed by both
5 parties providing for an alternative arrangement, approved
6 and entered into the record by the court, which insures
7 payment of support. In that case, the court shall enter the
8 order for withholding which will not take effect unless the
9 obligor becomes delinquent in paying the order for support.
10 Upon entry of any order of support on or after September
11 11, 1989, if the obligor is not a United States citizen, the
12 obligor shall provide to the court the obligor's alien
13 registration number, passport number, and home country's
14 social security or national health number, if applicable; the
15 court shall make the information part of the record in the
16 case.
17 (2) An order for withholding shall be entered upon
18 petition by the obligee or public office where an order for
19 withholding has not been previously entered.
20 (3) The order for withholding shall:
21 (a) Direct any payor to withhold a dollar amount
22 equal to the order for support; and
23 (b) Direct any payor to withhold an additional
24 dollar amount, not less than 20% of the order for
25 support, until payment in full of any delinquency stated
26 in the notice of delinquency provided for in subsection
27 (C) or (F) of this Section; and
28 (c) Direct any payor or labor union or trade union
29 to enroll a child as a beneficiary of a health insurance
30 plan and withhold or cause to be withheld, if
31 applicable, any required premiums; and
32 (d) State the rights, remedies and duties of the
33 obligor under this Section; and
34 (e) Include the obligor's Social Security Number,
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1 which the obligor shall disclose to the court; and
2 (f) Include the date that withholding for current
3 support terminates, which shall be the date of
4 termination of the current support obligation set forth
5 in the order for support.
6 (4) At the time the order for withholding is entered,
7 the Clerk of the Circuit Court shall provide a copy of the
8 order for withholding and the order for support to the
9 obligor and shall make copies available to the obligee and
10 public office. Any copy of the order for withholding
11 furnished to the parties under this subsection shall be
12 stamped "Not Valid".
13 (5) The order for withholding shall remain in effect for
14 as long as the order for support upon which it is based.
15 (6) The failure of an order for withholding to state an
16 arrearage is not conclusive of the issue of whether an
17 arrearage is owing.
18 (7) Notwithstanding the provisions of this subsection,
19 if the court finds at the time of any hearing that an
20 arrearage has accrued in an amount equal to at least one
21 month's support obligation or that the obligor is 30 days
22 late in paying all or part of the order for support, the
23 court shall order immediate service of the order for
24 withholding upon the payor.
25 (8) Where the court has not required that the order for
26 withholding take effect immediately, the obligee or public
27 office may prepare and serve a notice for immediate
28 withholding upon the obligor by ordinary mail addressed to
29 the obligor at his or her last known address. The notice
30 shall state that the following circumstances have occurred:
31 (a) The parties' written agreement providing an
32 alternative arrangement to immediate withholding under
33 paragraph (1) of this subsection no longer provides for
34 timely payment of all support due; or
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1 (b) The obligor has not made timely payments in
2 that the obligor has been at least 7 days late in paying
3 all or part of the order for support any of the last 6
4 consecutive dates payments were due prior to the date of
5 the notice for immediate withholding.
6 The notice for immediate withholding shall clearly state
7 that a specially certified copy of the order for withholding
8 will be sent to the payor, unless the obligor files a
9 petition contesting immediate withholding within 20 days
10 after service of the notice; however, the grounds for the
11 petition shall be limited to a dispute concerning whether the
12 circumstances stated in the notice have occurred or the
13 identity of the obligor. It shall not be grounds for the
14 petition that the obligor has made all payments due by the
15 date of the petition.
16 If the obligor files a petition contesting immediate
17 withholding within the 20-day period required under this
18 paragraph, the Clerk of the Circuit Court shall notify the
19 obligor and the obligee or public office, as appropriate, of
20 the time and place of the hearing on the petition. Upon
21 hearing the petition, the court shall enter an order granting
22 or denying relief. It shall not be grounds for granting the
23 obligor's petition that he or she has made all payments due
24 by the date of hearing. If the court denies the obligor's
25 petition, it shall order immediate service of the order for
26 withholding and direct the clerk to provide a specially
27 certified copy of the order for withholding to the obligee or
28 public office indicating that the requirements for immediate
29 withholding under this paragraph have been met.
30 If the obligor does not file a petition contesting
31 immediate withholding within the 20-day period, the obligee
32 or public office shall file with the Clerk of the Circuit
33 Court an affidavit, with a copy of the notice for immediate
34 withholding attached thereto, stating that the notice was
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1 duly served and the date on which service was effected, and
2 that the obligor has not filed a petition contesting
3 immediate withholding. The clerk shall then provide to the
4 obligee or public office a specially certified copy of the
5 order for withholding indicating that the requirements for
6 immediate withholding under this paragraph have been met.
7 Upon receipt of a specially certified copy of the order
8 for withholding, the obligee or public office may serve the
9 order on the payor, its superintendent, manager or other
10 agent, by certified mail or personal delivery. A proof of
11 service shall be filed with the Clerk of the Circuit Court.
12 (C) Notice of Delinquency.
13 (1) Whenever an obligor becomes delinquent in payment of
14 an amount equal to at least one month's support obligation
15 pursuant to the order for support or is at least 30 days late
16 in complying with all or part of the order for support,
17 whichever occurs first, the obligee or public office may
18 prepare and serve a verified notice of delinquency, together
19 with a form petition to stay service, pursuant to paragraph
20 (3) of this subsection.
21 (2) The notice of delinquency shall recite the terms of
22 the order for support and contain a computation of the period
23 and total amount of the delinquency, as of the date of the
24 notice. The notice shall clearly state that it will be sent
25 to the payor, together with a specially certified copy of the
26 order for withholding, except as provided in subsection (F),
27 unless the obligor files a petition to stay service in
28 accordance with paragraph (1) of subsection (D).
29 (3) The notice of delinquency shall be served by
30 ordinary mail addressed to the obligor at his or her last
31 known address.
32 (4) The obligor may execute a written waiver of the
33 provisions of paragraphs (1) through (3) of this subsection
34 and request immediate service upon the payor.
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1 (D) Procedures to Avoid Income Withholding.
2 (1) Except as provided in subsection (F), the obligor
3 may prevent an order for withholding from being served by
4 filing a petition to stay service with the Clerk of the
5 Circuit Court, within 20 days after service of the notice of
6 delinquency; however, the grounds for the petition to stay
7 service shall be limited to:
8 (a) A dispute concerning the amount of current
9 support or the existence or amount of the delinquency;
10 (b) The identity of the obligor.
11 The Clerk of the Circuit Court shall notify the obligor
12 and the obligee or public office, as appropriate, of the time
13 and place of the hearing on the petition to stay service. The
14 court shall hold such hearing pursuant to the provisions of
15 subsection (H).
16 (2) Except as provided in subsection (F), filing of a
17 petition to stay service, within the 20-day period required
18 under this subsection, shall prohibit the obligee or public
19 office from serving the order for withholding on any payor of
20 the obligor.
21 (E) Initial Service of Order for Withholding.
22 (1) Except as provided in subsection (F), in order to
23 serve an order for withholding upon a payor, an obligee or
24 public office shall follow the procedures set forth in this
25 subsection. After 20 days following service of the notice of
26 delinquency, the obligee or public office shall file with the
27 Clerk of the Circuit Court an affidavit, with the copy of the
28 notice of delinquency attached thereto, stating:
29 (a) that the notice of delinquency has been duly
30 served and the date on which service was effected; and
31 (b) that the obligor has not filed a petition to
32 stay service, or in the alternative
33 (c) that the obligor has waived the provisions of
34 subparagraphs (a) and (b) of this paragraph (1) in
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1 accordance with subsection (C)(4).
2 (2) Upon request of the obligee or public office, the
3 Clerk of the Circuit Court shall: (a) make available any
4 record of payment; and (b) determine that the file contains a
5 copy of the affidavit described in paragraph (1). The Clerk
6 shall then provide to the obligee or public office a
7 specially certified copy of the order for withholding and the
8 notice of delinquency indicating that the preconditions for
9 service have been met.
10 (3) The obligee or public office may then serve the
11 notice of delinquency and order for withholding on the payor,
12 its superintendent, manager or other agent, by regular or
13 certified mail or facsimile personal delivery. A proof of
14 service shall be filed with the Clerk of the Circuit Court.
15 (F) Subsequent Service of Order for Withholding.
16 (1) Notwithstanding the provisions of this Section, at
17 any time after the court has ordered immediate service of an
18 order for withholding or after initial service of an order
19 for withholding pursuant to subsection (E), the obligee or
20 public office may serve the order for withholding upon any
21 payor of the obligor without further notice to the obligor.
22 The obligee or public office shall provide notice to the
23 payor, pursuant to paragraph (6) of subsection (I), of any
24 payments that have been made through previous withholding or
25 any other method.
26 (2) The Clerk of the Circuit Court shall, upon request,
27 provide the obligee or public office with specially certified
28 copies of the order for withholding or the notice of
29 delinquency or both whenever the Court has ordered immediate
30 service of an order for withholding or an affidavit has been
31 placed in the court file indicating that the preconditions
32 for service have been previously met. The obligee or public
33 office may then serve the order for withholding on the payor,
34 its superintendent, manager or other agent by regular or
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1 certified mail or facsimile personal delivery. A proof of
2 service shall be filed with the Clerk of the Circuit Court.
3 (3) If a delinquency has accrued for any reason, the
4 obligee or public office may serve a notice of delinquency
5 upon the obligor pursuant to subsection (C). The obligor may
6 prevent the notice of delinquency from being served upon the
7 payor by utilizing the procedures set forth in subsection
8 (D). If no petition to stay service has been filed within the
9 required 20 day time period, the obligee or public office may
10 serve the notice of delinquency on the payor by utilizing the
11 procedures for service set forth in subsection (E).
12 (4) New service of an order for withholding is not
13 required in order to resume withholding of income in the case
14 of an obligor with respect to whom an order for withholding
15 was previously served on the payor if withholding of income
16 was terminated because of an interruption in the obligor's
17 employment of less than 180 days.
18 (G) Duties of Payor.
19 (1) It shall be the duty of any payor who has been
20 served with a copy of the specially certified order for
21 withholding and any notice of delinquency to deduct and pay
22 over income as provided in this subsection. The payor shall
23 deduct the amount designated in the order for withholding, as
24 supplemented by the notice of delinquency and any notice
25 provided pursuant to paragraph (6) of subsection (I),
26 beginning no later than the next payment of income which is
27 payable to the obligor that occurs 14 days following the date
28 the order and any notice were mailed by certified mail or
29 placed for personal delivery. The payor may combine all
30 amounts withheld for the benefit of an obligee or public
31 office into a single payment and transmit the payment with a
32 listing of obligors from whom withholding has been effected.
33 The payor shall pay the amount withheld to the obligee or
34 public office within 10 calendar days of the date income is
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1 paid to the obligor in accordance with the order for
2 withholding and any subsequent notification received from the
3 public office redirecting payments. If the payor knowingly
4 fails to pay any amount withheld to the obligee or public
5 office within 10 calendar days of the date income is paid to
6 the obligor, the payor shall pay a penalty of $100 for each
7 day that the withheld amount is not paid to the obligee or
8 public office after the period of 10 calendar days has
9 expired. The failure of a payor, on more than one occasion,
10 to pay amounts withheld to the obligee or public office
11 within 10 calendar days of the date income is not paid to the
12 obligor creates a presumption that the payor knowingly failed
13 to pay the amounts. This penalty may be collected in a civil
14 action which may be brought against the payor in favor of the
15 obligee. A finding of a payor's nonperformance within the
16 time required under this Section must be documented by a
17 certified mail return receipt showing the date the order for
18 withholding was served on the payor. For purposes of this
19 Section, a withheld amount shall be considered paid by a
20 payor on the date it is mailed by the payor, or on the date
21 an electronic funds transfer of the amount has been initiated
22 by the payor, or on the date delivery of the amount has been
23 initiated by the payor. For each deduction, the payor shall
24 provide the obligee or public office, at the time of
25 transmittal, with the date income was paid from which support
26 was withheld.
27 Upon receipt of an order requiring that a minor child be
28 named as a beneficiary of a health insurance plan available
29 through an employer or labor union or trade union, the
30 employer or labor union or trade union shall immediately
31 enroll the minor child as a beneficiary in the health
32 insurance plan designated by the court order. The employer
33 shall withhold any required premiums and pay over any amounts
34 so withheld and any additional amounts the employer pays to
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1 the insurance carrier in a timely manner. The employer or
2 labor union or trade union shall mail to the obligee, within
3 15 days of enrollment or upon request, notice of the date of
4 coverage, information on the dependent coverage plan, and all
5 forms necessary to obtain reimbursement for covered health
6 expenses, such as would be made available to a new employee.
7 When an order for dependent coverage is in effect and the
8 insurance coverage is terminated or changed for any reason,
9 the employer or labor union or trade union shall notify the
10 obligee within 10 days of the termination or change date
11 along with notice of conversion privileges.
12 For withholding of income, the payor shall be entitled to
13 receive a fee not to exceed $5 per month to be taken from the
14 income to be paid to the obligor.
15 (2) Whenever the obligor is no longer receiving income
16 from the payor, the payor shall return a copy of the order
17 for withholding to the obligee or public office and shall
18 provide information for the purpose of enforcing this
19 Section.
20 (3) Withholding of income under this Section shall be
21 made without regard to any prior or subsequent garnishments,
22 attachments, wage assignments, or any other claims of
23 creditors. Withholding of income under this Section shall
24 not be in excess of the maximum amounts permitted under the
25 federal Consumer Credit Protection Act. If the payor has been
26 served with more than one order for withholding pertaining to
27 the same obligor, the payor shall allocate income available
28 for withholding on a proportionate share basis, giving
29 priority to current support payments. If there is any income
30 available for withholding after withholding for all current
31 support obligations, the payor shall allocate the income to
32 past due support payments ordered in non-AFDC matters and
33 then to past due support payments ordered in AFDC matters,
34 both on a proportionate share basis. Payment as required by
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1 the order for withholding shall be a complete defense by the
2 payor against any claims of the obligor or his creditors as
3 to the sum so paid.
4 (4) No payor shall discharge, discipline, refuse to hire
5 or otherwise penalize any obligor because of the duty to
6 withhold income.
7 (H) Petitions to Stay Service or to Modify, Suspend or
8 Terminate Orders for Withholding.
9 (1) When an obligor files a petition to stay service,
10 the court, after due notice to all parties, shall hear the
11 matter as soon as practicable and shall enter an order
12 granting or denying relief, amending the notice of
13 delinquency, amending the order for withholding, where
14 applicable, or otherwise resolving the matter. If the court
15 finds that a delinquency existed when the notice of
16 delinquency was served upon the obligor, in an amount of at
17 least one month's support obligation, or that the obligor was
18 at least 30 days late in paying all or part of the order for
19 support, the court shall order immediate service of the order
20 for withholding. Where the court cannot promptly resolve any
21 dispute over the amount of the delinquency, the court may
22 order immediate service of the order for withholding as to
23 any undisputed amounts specified in an amended notice of
24 delinquency, and may continue the hearing on the disputed
25 amounts.
26 (2) At any time, an obligor, obligee, public office or
27 Clerk of the Circuit Court may petition the court to:
28 (a) Modify, suspend or terminate the order for
29 withholding because of a modification, suspension or
30 termination of the underlying order for support; or
31 (b) Modify the amount of income to be withheld to
32 reflect payment in full or in part of the delinquency or
33 arrearage by income withholding or otherwise; or
34 (c) Suspend the order for withholding because of
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1 inability to deliver income withheld to the obligee due
2 to the obligee's failure to provide a mailing address or
3 other means of delivery.
4 (3) The obligor, obligee or public office shall serve on
5 the payor, by certified mail or personal delivery, a copy of
6 any order entered pursuant to this subsection that affects
7 the duties of the payor.
8 (4) At any time, a public office or Clerk of the Circuit
9 Court may serve a notice on the payor to:
10 (a) cease withholding of income for payment of
11 current support for a child when the support obligation
12 for that child has automatically ceased under the order
13 for support through emancipation or otherwise; or
14 (b) cease withholding of income for payment of
15 delinquency or arrearage when the delinquency or
16 arrearage has been paid in full.
17 (5) The notice provided for under paragraph (4) of this
18 subsection shall be served on the payor by ordinary mail, and
19 a copy shall be provided to the obligor and the obligee. A
20 copy of the notice shall be filed with the Clerk of the
21 Circuit Court.
22 (6) The order for withholding shall continue to be
23 binding upon the payor until service of any order of the
24 court or notice entered or provided for under this
25 subsection.
26 (I) Additional Duties.
27 (1) An obligee who is receiving income withholding
28 payments under this Section shall notify the payor, if the
29 obligee receives the payments directly from the payor, or the
30 public office or the Clerk of the Circuit Court, as
31 appropriate, of any change of address within 7 days of such
32 change.
33 (2) An obligee who is a recipient of public aid shall
34 send a copy of any notice of delinquency filed pursuant to
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1 subsection (C) to the Bureau of Child Support of the Illinois
2 Department of Public Aid.
3 (3) Each obligor shall notify the obligee and the Clerk
4 of the Circuit Court of any change of address within 7 days.
5 (4) An obligor whose income is being withheld or who has
6 been served with a notice of delinquency pursuant to this
7 Section shall notify the obligee and the Clerk of the Circuit
8 Court of any new payor, within 7 days.
9 (5) When the Illinois Department of Public Aid is no
10 longer authorized to receive payments for the obligee, it
11 shall, within 7 days, notify the payor or, where appropriate,
12 the Clerk of the Circuit Court, to redirect income
13 withholding payments to the obligee.
14 (6) The obligee or public office shall provide notice to
15 the payor and Clerk of the Circuit Court of any other support
16 payment made, including but not limited to, a set-off under
17 federal and State law or partial payment of the delinquency
18 or arrearage, or both.
19 (7) Any public office and Clerk of the Circuit Court
20 which collects, disburses or receives payments pursuant to
21 orders for withholding shall maintain complete, accurate, and
22 clear records of all payments and their disbursements.
23 Certified copies of payment records maintained by a public
24 office or Clerk of the Circuit Court shall, without further
25 proof, be admitted into evidence in any legal proceedings
26 under this Section.
27 (8) The Illinois Department of Public Aid shall design
28 suggested legal forms for proceeding under this Section and
29 shall make available to the courts such forms and
30 informational materials which describe the procedures and
31 remedies set forth herein for distribution to all parties in
32 support actions.
33 (9) At the time of transmitting each support payment,
34 the clerk of the circuit court shall provide the obligee or
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1 public office, as appropriate, with any information furnished
2 by the payor as to the date income was paid from which such
3 support was withheld.
4 (J) Penalties.
5 (1) Where a payor wilfully fails to withhold or pay over
6 income pursuant to a properly served, specially certified
7 order for withholding and any notice of delinquency, or
8 wilfully discharges, disciplines, refuses to hire or
9 otherwise penalizes an obligor as prohibited by subsection
10 (G), or otherwise fails to comply with any duties imposed by
11 this Section, the obligee, public office or obligor, as
12 appropriate, may file a complaint with the court against the
13 payor. The clerk of the circuit court shall notify the
14 obligee or public office, as appropriate, and the obligor and
15 payor of the time and place of the hearing on the complaint.
16 The court shall resolve any factual dispute including, but
17 not limited to, a denial that the payor is paying or has paid
18 income to the obligor. Upon a finding in favor of the
19 complaining party, the court:
20 (a) Shall enter judgment and direct the enforcement
21 thereof for the total amount that the payor wilfully
22 failed to withhold or pay over; and
23 (b) May order employment or reinstatement of or
24 restitution to the obligor, or both, where the obligor
25 has been discharged, disciplined, denied employment or
26 otherwise penalized by the payor and may impose a fine
27 upon the payor not to exceed $200.
28 (2) Any obligee, public office or obligor who wilfully
29 initiates a false proceeding under this Section or who
30 wilfully fails to comply with the requirements of this
31 Section shall be punished as in cases of contempt of court.
32 (K) Alternative Procedures for Entry and Service of an Order
33 for Withholding.
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1 (1) Effective January 1, 1987, in any matter in which an
2 order for withholding has not been entered for any reason,
3 based upon the last order for support that has been entered,
4 and in which the obligor has become delinquent in payment of
5 an amount equal to at least one month's support obligation
6 pursuant to the last order for support or is at least 30 days
7 late in complying with all or part of the order for support,
8 the obligee or public office may prepare and serve an order
9 for withholding pursuant to the procedures set forth in this
10 subsection.
11 (2) The obligee or public office shall:
12 (a) Prepare a proposed order for withholding for
13 immediate service as provided by paragraphs (1) and (3)
14 of subsection (B), except that the minimum 20%
15 delinquency payment shall be used;
16 (b) Prepare a notice of delinquency as provided by
17 paragraphs (1) and (2) of subsection (C), except the
18 notice shall state further that the order for withholding
19 has not been entered by the court and the conditions
20 under which the order will be entered; and
21 (c) Serve the notice of delinquency and form
22 petition to stay service as provided by paragraph (3) of
23 subsection (C), together with the proposed order for
24 withholding, which shall be marked "COPY ONLY".
25 (3) After 20 days following service of the notice of
26 delinquency and proposed order for withholding, in lieu of
27 the provisions of subsection (E), the obligee or public
28 office shall file with the Clerk of the Circuit Court an
29 affidavit, with a copy of the notice of delinquency and
30 proposed order for withholding attached thereto, stating
31 that:
32 (a) The notice of delinquency and proposed order
33 for withholding have been served upon the obligor and the
34 date on which service was effected;
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1 (b) The obligor has not filed a petition to stay
2 service within 20 days of service of such notice and
3 order; and
4 (c) The proposed order for withholding accurately
5 states the terms and amounts contained in the last order
6 for support.
7 (4) Upon the court's satisfaction that the procedures
8 set forth in this subsection have been met, it shall enter
9 the order for withholding.
10 (5) The Clerk shall then provide to the obligee or
11 public office a specially certified copy of the order for
12 withholding and the notice of delinquency indicating that the
13 preconditions for service have been met.
14 (6) The obligee or public office shall serve the
15 specially certified copies of the order for withholding and
16 the notice of delinquency on the payor, its superintendent,
17 manager or other agent by certified mail or personal
18 delivery. A proof of service shall be filed with the Clerk
19 of the Circuit Court.
20 (7) If the obligor requests in writing that income
21 withholding become effective prior to becoming delinquent in
22 payment of an amount equal to one month's support obligation
23 pursuant to the last order for support, or prior to becoming
24 30 days late in paying all or part of the order for support,
25 the obligee or public office shall file an affidavit with the
26 Clerk of the circuit Court, with a proposed order for
27 withholding attached, stating that the proposed order
28 accurately states the terms and amounts contained in the last
29 order for support and the obligor's request for immediate
30 service. The provisions of paragraphs (4) through (6) of
31 this subsection shall apply, except that a notice of
32 delinquency shall not be required.
33 (8) All other provisions of this Section shall be
34 applicable with respect to the provisions of this subsection
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1 (K), except that under paragraph (1) of subsection (H), the
2 court may also amend the proposed order for withholding to
3 conform to the last order for support.
4 (9) Nothing in this subsection shall be construed as
5 limiting the requirements of paragraph (1) of subsection (B)
6 with respect to the entry of a separate order for withholding
7 upon entry of any order for support.
8 (L) Remedies in Addition to Other Laws.
9 (1) The rights, remedies, duties and penalties created
10 by this Section are in addition to and not in substitution
11 for any other rights, remedies, duties and penalties created
12 by any other law.
13 (2) Nothing in this Section shall be construed as
14 invalidating any assignment of wages or benefits executed
15 prior to January 1, 1984.
16 (Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
17 eff. 12-2-94; 89-507, eff. 7-1-97.)
18 Section 92. The Non-Support of Spouse and Children Act
19 is amended by changing Section 4.1 as follows:
20 (750 ILCS 15/4.1) (from Ch. 40, par. 1107.1)
21 (Text of Section before amendment by P.A. 89-507)
22 Sec. 4.1. Withholding of Income to Secure Payment of
23 Support.
24 (A) Definitions.
25 (1) "Order for support" means any order of the court
26 which provides for periodic payment of funds for the support
27 of a child or maintenance of a spouse, whether temporary or
28 final, and includes any such order which provides for:
29 (a) Modification or resumption of, or payment of
30 arrearage accrued under, a previously existing order;
31 (b) Reimbursement of support; or
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1 (c) Enrollment in a health insurance plan that is
2 available to the obligor through an employer or labor
3 union or trade union.
4 (2) "Arrearage" means the total amount of unpaid support
5 obligations.
6 (3) "Delinquency" means any payment under an order for
7 support which becomes due and remains unpaid after an order
8 for withholding has been entered under subsection (B) or, for
9 purposes of subsection (K), after the last order for support
10 was entered for which no order for withholding was entered.
11 (4) "Income" means any form of periodic payment to an
12 individual, regardless of source, including, but not limited
13 to: wages, salary, commission, compensation as an independent
14 contractor, workers' compensation, disability, annuity and
15 retirement benefits, lottery prize awards, insurance
16 proceeds, vacation pay, bonuses, profit-sharing payments and
17 any other payments, made by any person, private entity,
18 federal or state government, any unit of local government,
19 school district or any entity created by Public Act; however,
20 "income" excludes:
21 (a) Any amounts required by law to be withheld,
22 other than creditor claims, including, but not limited
23 to, federal, State and local taxes, Social Security and
24 other retirement and disability contributions;
25 (b) Union dues;
26 (c) Any amounts exempted by the federal Consumer
27 Credit Protection Act;
28 (d) Public assistance payments; and
29 (e) Unemployment insurance benefits except as
30 provided by law.
31 Any other State or local laws which limit or exempt
32 income or the amount or percentage of income that can be
33 withheld shall not apply.
34 (5) "Obligor" means the individual who owes a duty to
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1 make payments under an order for support.
2 (6) "Obligee" means the individual to whom a duty of
3 support is owed or the individual's legal representative.
4 (7) "Payor" means any payor of income to an obligor.
5 (8) "Public office" means any elected official or any
6 State or local agency which is or may become responsible by
7 law for enforcement of, or which is or may become authorized
8 to enforce, an order for support, including, but not limited
9 to: the Attorney General, the Illinois Department of Public
10 Aid, the Illinois Department of Mental Health and
11 Developmental Disabilities, the Illinois Department of
12 Children and Family Services, and the various State's
13 Attorneys, Clerks of the Circuit Court and supervisors of
14 general assistance.
15 (9) "Premium" means the dollar amount for which the
16 obligor is liable to his employer or labor union or trade
17 union and which must be paid to enroll or maintain a child in
18 a health insurance plan that is available to the obligor
19 through an employer or labor union or trade union.
20 (B) Entry of an Order for Withholding.
21 (1) Upon entry of any order for support on or after
22 January 1, 1984, the court shall enter a separate order for
23 withholding which shall not take effect unless the obligor
24 becomes delinquent in paying the order for support or the
25 obligor requests an earlier effective date; except that the
26 court may require the order for withholding to take effect
27 immediately.
28 On or after January 1, 1989, the court shall require the
29 order for withholding to take effect immediately, unless a
30 written agreement is reached between and signed by both
31 parties providing for an alternative arrangement, approved
32 and entered into the record by the court, which insures
33 payment of support. In that case, the court shall enter the
34 order for withholding which will not take effect unless the
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1 obligor becomes delinquent in paying the order for support.
2 Upon entry of any order of support on or after September
3 11, 1989, if the obligor is not a United States citizen, the
4 obligor shall provide to the court the obligor's alien
5 registration number, passport number, and home country's
6 social security or national health number, if applicable; the
7 court shall make the information part of the record in the
8 case.
9 (2) An order for withholding shall be entered upon
10 petition by the obligee or public office where an order for
11 withholding has not been previously entered.
12 (3) The order for withholding shall:
13 (a) Direct any payor to withhold a dollar amount
14 equal to the order for support; and
15 (b) Direct any payor to withhold an additional
16 dollar amount, not less than 20% of the order for
17 support, until payment in full of any delinquency stated
18 in the notice of delinquency provided for in subsection
19 (C) or (F) of this Section; and
20 (c) Direct any payor or labor union or trade union
21 to enroll a child as a beneficiary of a health insurance
22 plan and withhold or cause to be withheld, if applicable,
23 any required premiums; and
24 (d) State the rights, remedies and duties of the
25 obligor under this Section; and
26 (e) Include the obligor's Social Security Number,
27 which the obligor shall disclose to the court; and
28 (f) Include the date that withholding for current
29 support terminates, which shall be the date of
30 termination of the current support obligation set forth
31 in the order for support.
32 (4) At the time the order for withholding is entered,
33 the Clerk of the Circuit Court shall provide a copy of the
34 order for withholding and the order for support to the
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1 obligor and shall make copies available to the obligee and
2 public office. Any copy of the order for withholding
3 furnished to the parties under this subsection shall be
4 stamped "Not Valid".
5 (5) The order for withholding shall remain in effect for
6 as long as the order for support upon which it is based.
7 (6) The failure of an order for withholding to state an
8 arrearage is not conclusive of the issue of whether an
9 arrearage is owing.
10 (7) Notwithstanding the provisions of this subsection,
11 if the court finds at the time of any hearing that an
12 arrearage has accrued in an amount equal to at least one
13 month's support obligation or that the obligor is 30 days
14 late in paying all or part of the order for support, the
15 court shall order immediate service of the order for
16 withholding upon the payor.
17 (8) Where the court has not required that the order for
18 withholding take effect immediately, the obligee or public
19 office may prepare and serve a notice for immediate
20 withholding upon the obligor by ordinary mail addressed to
21 the obligor at his or her last known address. The notice
22 shall state that the following circumstances have occurred:
23 (a) The parties' written agreement providing an
24 alternative arrangement to immediate withholding under
25 paragraph (1) of this subsection no longer provides for
26 timely payment of all support due; or
27 (b) The obligor has not made timely payments in
28 that the obligor has been at least 7 days late in paying
29 all or part of the order for support any of the last 6
30 consecutive dates payments were due prior to the date of
31 the notice for immediate withholding.
32 The notice for immediate withholding shall clearly state
33 that a specially certified copy of the order for withholding
34 will be sent to the payor, unless the obligor files a
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1 petition contesting immediate withholding within 20 days
2 after service of the notice; however, the grounds for the
3 petition shall be limited to a dispute concerning whether the
4 circumstances stated in the notice have occurred or the
5 identity of the obligor. It shall not be grounds for the
6 petition that the obligor has made all payments due by the
7 date of the petition.
8 If the obligor files a petition contesting immediate
9 withholding within the 20-day period required under this
10 paragraph, the Clerk of the Circuit Court shall notify the
11 obligor and the obligee or public office, as appropriate, of
12 the time and place of the hearing on the petition. Upon
13 hearing the petition, the court shall enter an order granting
14 or denying relief. It shall not be grounds for granting the
15 obligor's petition that he or she has made all payments due
16 by the date of hearing. If the court denies the obligor's
17 petition, it shall order immediate service of the order for
18 withholding, and direct the clerk to provide a specially
19 certified copy of the order for withholding to the obligee or
20 public office indicating that the requirements for immediate
21 withholding under this paragraph have been met.
22 If the obligor does not file a petition contesting
23 immediate withholding within the 20-day period, the obligee
24 or public office shall file with the Clerk of the Circuit
25 Court an affidavit, with a copy of the notice for immediate
26 withholding attached thereto, stating that the notice was
27 duly served and the date on which service was effected, and
28 that the obligor has not filed a petition contesting
29 immediate withholding. The clerk shall then provide to the
30 obligee or public office a specially certified copy of the
31 order for withholding indicating that the requirements for
32 immediate withholding under this paragraph have been met.
33 Upon receipt of a specially certified copy of the order
34 for withholding, the obligee or public office may serve the
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1 order on the payor, its superintendent, manager or other
2 agent, by certified mail or personal delivery. A proof of
3 service shall be filed with the Clerk of the Circuit Court.
4 (C) Notice of Delinquency.
5 (1) Whenever an obligor becomes delinquent in payment of
6 an amount equal to at least one month's support obligation
7 pursuant to the order for support or is at least 30 days late
8 in complying with all or part of the order for support,
9 whichever occurs first, the obligee or public office may
10 prepare and serve a verified notice of delinquency, together
11 with a form petition to stay service, pursuant to paragraph
12 (3) of this subsection.
13 (2) The notice of delinquency shall recite the terms of
14 the order for support and contain a computation of the period
15 and total amount of the delinquency, as of the date of the
16 notice. The notice shall clearly state that it will be sent
17 to the payor, together with a specially certified copy of the
18 order for withholding, except as provided in subsection (F),
19 unless the obligor files a petition to stay service in
20 accordance with paragraph (1) of subsection (D).
21 (3) The notice of delinquency shall be served by
22 ordinary mail addressed to the obligor at his or her last
23 known address.
24 (4) The obligor may execute a written waiver of the
25 provisions of paragraphs (1) through (3) of this subsection
26 and request immediate service upon the payor.
27 (D) Procedures to Avoid Income Withholding.
28 (1) Except as provided in subsection (F), the obligor
29 may prevent an order for withholding from being served by
30 filing a petition to stay service with the Clerk of the
31 Circuit Court, within 20 days after service of the notice of
32 delinquency; however, the grounds for the petition to stay
33 service shall be limited to:
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1 (a) A dispute concerning the amount of current
2 support or the existence or amount of the delinquency;
3 (b) The identity of the obligor.
4 The Clerk of the Circuit Court shall notify the obligor
5 and the obligee or public office, as appropriate, of the time
6 and place of the hearing on the petition to stay service. The
7 court shall hold such hearing pursuant to the provisions of
8 subsection (H).
9 (2) Except as provided in subsection (F), filing of a
10 petition to stay service, within the 20-day period required
11 under this subsection, shall prohibit the obligee or public
12 office from serving the order for withholding on any payor of
13 the obligor.
14 (E) Initial Service of Order for Withholding.
15 (1) Except as provided in subsection (F), in order to
16 serve an order for withholding upon a payor, an obligee or
17 public office shall follow the procedures set forth in this
18 subsection. After 20 days following service of the notice of
19 delinquency, the obligee or public office shall file with the
20 Clerk of the Circuit Court an affidavit, with the copy of the
21 notice of delinquency attached thereto, stating:
22 (a) that the notice of delinquency has been duly
23 served and the date on which service was effected; and
24 (b) that the obligor has not filed a petition to
25 stay service, or in the alternative
26 (c) that the obligor has waived the provisions of
27 subparagraphs (a) and (b) of this paragraph (1) in
28 accordance with subsection (C)(4).
29 (2) Upon request of the obligee or public office, the
30 Clerk of the Circuit Court shall: (a) make available any
31 record of payment; and (b) determine that the file contains a
32 copy of the affidavit described in paragraph (1). The Clerk
33 shall then provide to the obligee or public office a
34 specially certified copy of the order for withholding and the
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1 notice of delinquency indicating that the preconditions for
2 service have been met.
3 (3) The obligee or public office may then serve the
4 notice of delinquency and order for withholding on the payor,
5 its superintendent, manager or other agent, by regular or
6 certified mail or facsimile personal delivery. A proof of
7 service shall be filed with the Clerk of the Circuit Court.
8 (F) Subsequent Service of Order for Withholding.
9 (1) Notwithstanding the provisions of this Section, at
10 any time after the court has ordered immediate service of an
11 order for withholding or after initial service of an order
12 for withholding pursuant to subsection (E), the obligee or
13 public office may serve the order for withholding upon any
14 payor of the obligor without further notice to the obligor.
15 The obligee or public office shall provide notice to the
16 payor, pursuant to paragraph (6) of subsection (I), of any
17 payments that have been made through previous withholding or
18 any other method.
19 (2) The Clerk of the Circuit Court shall, upon request,
20 provide the obligee or public office with specially certified
21 copies of the order for withholding or the notice of
22 delinquency or both whenever the Court has ordered immediate
23 service of an order for withholding or an affidavit has been
24 placed in the court file indicating that the preconditions
25 for service have been previously met. The obligee or public
26 office may then serve the order for withholding on the payor,
27 its superintendent, manager or other agent by regular or
28 certified mail or facsimile personal delivery. A proof of
29 service shall be filed with the Clerk of the Circuit Court.
30 (3) If a delinquency has accrued for any reason, the
31 obligee or public office may serve a notice of delinquency
32 upon the obligor pursuant to subsection (C). The obligor may
33 prevent the notice of delinquency from being served upon the
34 payor by utilizing the procedures set forth in subsection
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1 (D).
2 If no petition to stay service has been filed within the
3 required 20 day time period, the obligee or public office may
4 serve the notice of delinquency on the payor by utilizing the
5 procedures for service set forth in subsection (E).
6 (4) New service of an order for withholding is not
7 required in order to resume withholding of income in the case
8 of an obligor with respect to whom an order for withholding
9 was previously served on the payor if withholding of income
10 was terminated because of an interruption in the obligor's
11 employment of less than 180 days.
12 (G) Duties of Payor.
13 (1) It shall be the duty of any payor who has been
14 served with a copy of the specially certified order for
15 withholding and any notice of delinquency to deduct and pay
16 over income as provided in this subsection. The payor shall
17 deduct the amount designated in the order for withholding, as
18 supplemented by the notice of delinquency and any notice
19 provided pursuant to paragraph (6) of subsection (I),
20 beginning no later than the next payment of income which is
21 payable to the obligor that occurs 14 days following the date
22 the order and any notice were mailed by certified mail or
23 placed for personal delivery. The payor may combine all
24 amounts withheld for the benefit of an obligee or public
25 office into a single payment and transmit the payment with a
26 listing of obligors from whom withholding has been effected.
27 The payor shall pay the amount withheld to the obligee or
28 public office within 10 calendar days of the date income is
29 paid to the obligor in accordance with the order for
30 withholding and any subsequent notification received from the
31 public office redirecting payments. If the payor knowingly
32 fails to pay any amount withheld to the obligee or public
33 office within 10 calendar days of the date income is paid to
34 the obligor, the payor shall pay a penalty of $100 for each
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1 day that the withheld amount is not paid to the obligee or
2 public office after the period of 10 calendar days has
3 expired. The failure of a payor, on more than one occasion,
4 to pay amounts withheld to the obligee or public office
5 within 10 calendar days of the date income is paid to the
6 obligor creates a presumption that the payor knowingly failed
7 to pay the amounts. This penalty may be collected in a civil
8 action which may be brought against the payor in favor of the
9 obligee. A finding of a payor's nonperformance within the
10 time required under this Section must be documented by a
11 certified mail return receipt showing the date the order for
12 withholding was served on the payor. For purposes of this
13 Section, a withheld amount shall be considered paid by a
14 payor on the date it is mailed by the payor, or on the date
15 an electronic funds transfer of the amount has been initiated
16 by the payor, or on the date delivery of the amount has been
17 initiated by the payor. For each deduction, the payor shall
18 provide the obligee or public office, at the time of
19 transmittal, with the date income was paid from which support
20 was withheld.
21 Upon receipt of an order requiring that a minor child be
22 named as a beneficiary of a health insurance plan available
23 through an employer or labor union or trade union, the
24 employer or labor union or trade union shall immediately
25 enroll the minor child as a beneficiary in the health
26 insurance plan designated by the court order. The employer
27 shall withhold any required premiums and pay over any amounts
28 so withheld and any additional amounts the employer pays to
29 the insurance carrier in a timely manner. The employer or
30 labor union or trade union shall mail to the obligee, within
31 15 days of enrollment or upon request, notice of the date of
32 coverage, information on the dependent coverage plan, and all
33 forms necessary to obtain reimbursement for covered health
34 expenses, such as would be made available to a new employee.
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1 When an order for dependent coverage is in effect and the
2 insurance coverage is terminated or changed for any reason,
3 the employer or labor union or trade union shall notify the
4 obligee within 10 days of the termination or change date
5 along with notice of conversion privileges.
6 For withholding of income, the payor shall be entitled to
7 receive a fee not to exceed $5 per month or the actual check
8 processing cost to be taken from the income to be paid to the
9 obligor.
10 (2) Whenever the obligor is no longer receiving income
11 from the payor, the payor shall return a copy of the order
12 for withholding to the obligee or public office and shall
13 provide information for the purpose of enforcing this
14 Section.
15 (3) Withholding of income under this Section shall be
16 made without regard to any prior or subsequent garnishments,
17 attachments, wage assignments, or any other claims of
18 creditors. Withholding of income under this Section shall
19 not be in excess of the maximum amounts permitted under the
20 federal Consumer Credit Protection Act. If the payor has been
21 served with more than one order for withholding pertaining to
22 the same obligor, the payor shall allocate income available
23 for withholding on a proportionate share basis, giving
24 priority to current support payments. If there is any income
25 available for withholding after withholding for all current
26 support obligations, the payor shall allocate the income to
27 past due support payments ordered in non-AFDC matters and
28 then to past due support payments ordered in AFDC matters,
29 both on a proportionate share basis. Payment as required by
30 the order for withholding shall be a complete defense by the
31 payor against any claims of the obligor or his creditors as
32 to the sum so paid.
33 (4) No payor shall discharge, discipline, refuse to hire
34 or otherwise penalize any obligor because of the duty to
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1 withhold income.
2 (H) Petitions to Stay Service or to Modify, Suspend or
3 Terminate Orders for Withholding.
4 (1) When an obligor files a petition to stay service,
5 the court, after due notice to all parties, shall hear the
6 matter as soon as practicable and shall enter an order
7 granting or denying relief, amending the notice of
8 delinquency, amending the order for withholding, where
9 applicable, or otherwise resolving the matter. If the court
10 finds that a delinquency existed when the notice of
11 delinquency was served upon the obligor, in an amount of at
12 least one month's support obligation, or that the obligor was
13 at least 30 days late in paying all or part of the order for
14 support, the court shall order immediate service of the order
15 for withholding. Where the court cannot promptly resolve any
16 dispute over the amount of the delinquency, the court may
17 order immediate service of the order for withholding as to
18 any undisputed amounts specified in an amended notice of
19 delinquency, and may continue the hearing on the disputed
20 amounts.
21 (2) At any time, an obligor, obligee, public office or
22 Clerk of the Circuit Court may petition the court to:
23 (a) Modify, suspend or terminate the order for
24 withholding because of a modification, suspension or
25 termination of the underlying order for support; or
26 (b) Modify the amount of income to be withheld to
27 reflect payment in full or in part of the delinquency or
28 arrearage by income withholding or otherwise; or
29 (c) Suspend the order for withholding because of
30 inability to deliver income withheld to the obligee due
31 to the obligee's failure to provide a mailing address or
32 other means of delivery.
33 (3) The obligor, obligee or public office shall serve on
34 the payor, by certified mail or personal delivery, a copy of
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1 any order entered pursuant to this subsection that affects
2 the duties of the payor.
3 (4) At any time, a public office or Clerk of the Circuit
4 Court may serve a notice on the payor to:
5 (a) cease withholding of income for payment of
6 current support for a child when the support obligation
7 for that child has automatically ceased under the order
8 for support through emancipation or otherwise; or
9 (b) cease withholding of income for payment of
10 delinquency or arrearage when the delinquency or
11 arrearage has been paid in full.
12 (5) The notice provided for under paragraph (4) of this
13 subsection shall be served on the payor by ordinary mail, and
14 a copy shall be provided to the obligor and the obligee. A
15 copy of the notice shall be filed with the Clerk of the
16 Circuit Court.
17 (6) The order for withholding shall continue to be
18 binding upon the payor until service of any order of the
19 court or notice entered or provided for under this
20 subsection.
21 (I) Additional Duties.
22 (1) An obligee who is receiving income withholding
23 payments under this Section shall notify the payor, if the
24 obligee receives the payments directly from the payor, or the
25 public office or the Clerk of the Circuit Court, as
26 appropriate, of any change of address within 7 days of such
27 change.
28 (2) An obligee who is a recipient of public aid shall
29 send a copy of any notice of delinquency filed pursuant to
30 subsection (C) to the Bureau of Child Support of the Illinois
31 Department of Public Aid.
32 (3) Each obligor shall notify the obligee and the Clerk
33 of the Circuit Court of any change of address within 7 days.
34 (4) An obligor whose income is being withheld or who has
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1 been served with a notice of delinquency pursuant to this
2 Section shall notify the obligee and the Clerk of the Circuit
3 Court of any new payor, within 7 days.
4 (5) When the Illinois Department of Public Aid is no
5 longer authorized to receive payments for the obligee, it
6 shall, within 7 days, notify the payor or, where appropriate,
7 the Clerk of the Circuit Court, to redirect income
8 withholding payments to the obligee.
9 (6) The obligee or public office shall provide notice to
10 the payor and Clerk of the Circuit Court of any other support
11 payment made, including but not limited to, a set-off under
12 federal and State law or partial payment of the delinquency
13 or arrearage, or both.
14 (7) Any public office and Clerk of the Circuit Court
15 which collects, disburses or receives payments pursuant to
16 orders for withholding shall maintain complete, accurate, and
17 clear records of all payments and their disbursements.
18 Certified copies of payment records maintained by a public
19 office or Clerk of the Circuit Court shall, without further
20 proof, be admitted into evidence in any legal proceedings
21 under this Section.
22 (8) The Illinois Department of Public Aid shall design
23 suggested legal forms for proceeding under this Section and
24 shall make available to the courts such forms and
25 informational materials which describe the procedures and
26 remedies set forth herein for distribution to all parties in
27 support actions.
28 (9) At the time of transmitting each support payment,
29 the clerk of the circuit court shall provide the obligee or
30 public office, as appropriate, with any information furnished
31 by the payor as to the date income was paid from which such
32 support was withheld.
33 (J) Penalties.
34 (1) Where a payor wilfully fails to withhold or pay over
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1 income pursuant to a properly served, specially certified
2 order for withholding and any notice of delinquency, or
3 wilfully discharges, disciplines, refuses to hire or
4 otherwise penalizes an obligor as prohibited by subsection
5 (G), or otherwise fails to comply with any duties imposed by
6 this Section, the obligee, public office or obligor, as
7 appropriate, may file a complaint with the court against the
8 payor. The clerk of the circuit court shall notify the
9 obligee or public office, as appropriate, and the obligor and
10 payor of the time and place of the hearing on the complaint.
11 The court shall resolve any factual dispute including, but
12 not limited to, a denial that the payor is paying or has paid
13 income to the obligor. Upon a finding in favor of the
14 complaining party, the court:
15 (a) Shall enter judgment and direct the enforcement
16 thereof for the total amount that the payor wilfully
17 failed to withhold or pay over; and
18 (b) May order employment or reinstatement of or
19 restitution to the obligor, or both, where the obligor
20 has been discharged, disciplined, denied employment or
21 otherwise penalized by the payor and may impose a fine
22 upon the payor not to exceed $200.
23 (2) Any obligee, public office or obligor who wilfully
24 initiates a false proceeding under this Section or who
25 wilfully fails to comply with the requirements of this
26 Section shall be punished as in cases of contempt of court.
27 (K) Alternative Procedures for Entry and Service of an Order
28 for Withholding.
29 (1) Effective January 1, 1987, in any matter in which an
30 order for withholding has not been entered for any reason,
31 based upon the last order for support that has been entered,
32 and in which the obligor has become delinquent in payment of
33 an amount equal to at least one month's support obligation
34 pursuant to the last order for support or is at least 30 days
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1 late in complying with all or part of the order for support,
2 the obligee or public office may prepare and serve an order
3 for withholding pursuant to the procedures set forth in this
4 subsection.
5 (2) The obligee or public office shall:
6 (a) Prepare a proposed order for withholding for
7 immediate service as provided by paragraphs (1) and (3)
8 of subsection (B), except that the minimum 20%
9 delinquency payment shall be used;
10 (b) Prepare a notice of delinquency as provided by
11 paragraphs (1) and (2) of subsection (C), except the
12 notice shall state further that the order for withholding
13 has not been entered by the court and the conditions
14 under which the order will be entered; and
15 (c) Serve the notice of delinquency and form
16 petition to stay service as provided by paragraph (3) of
17 subsection (C), together with the proposed order for
18 withholding, which shall be marked "COPY ONLY".
19 (3) After 20 days following service of the notice of
20 delinquency and proposed order for withholding, in lieu of
21 the provisions of subsection (E), the obligee or public
22 office shall file with the Clerk of the Circuit Court an
23 affidavit, with a copy of the notice of delinquency and
24 proposed order for withholding attached thereto, stating
25 that:
26 (a) The notice of delinquency and proposed order
27 for withholding have been served upon the obligor and the
28 date on which service was effected;
29 (b) The obligor has not filed a petition to stay
30 service within 20 days of service of such notice and
31 order; and
32 (c) The proposed order for withholding accurately
33 states the terms and amounts contained in the last order
34 for support.
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1 (4) Upon the court's satisfaction that the procedures
2 set forth in this subsection have been met, it shall enter
3 the order for withholding.
4 (5) The Clerk shall then provide to the obligee or
5 public office a specially certified copy of the order for
6 withholding and the notice of delinquency indicating that the
7 preconditions for service have been met.
8 (6) The obligee or public office shall serve the
9 specially certified copies of the order for withholding and
10 the notice of delinquency on the payor, its superintendent,
11 manager or other agent by certified mail or personal
12 delivery. A proof of service shall be filed with the Clerk
13 of the Circuit Court.
14 (7) If the obligor requests in writing that income
15 withholding become effective prior to becoming delinquent in
16 payment of an amount equal to one month's support obligation
17 pursuant to the last order for support, or prior to becoming
18 30 days late in paying all or part of the order for support,
19 the obligee or public office shall file an affidavit with the
20 Clerk of the circuit Court, with a proposed order for
21 withholding attached, stating that the proposed order
22 accurately states the terms and amounts contained in the last
23 order for support and the obligor's request for immediate
24 service. The provisions of paragraphs (4) through (6) of
25 this subsection shall apply, except that a notice of
26 delinquency shall not be required.
27 (8) All other provisions of this Section shall be
28 applicable with respect to the provisions of this subsection
29 (K), except that under paragraph (1) of subsection (H), the
30 court may also amend the proposed order for withholding to
31 conform to the last order for support.
32 (9) Nothing in this subsection shall be construed as
33 limiting the requirements of paragraph (1) of subsection (B)
34 with respect to the entry of a separate order for withholding
-93- LRB9003396DJcd
1 upon entry of any order for support.
2 (L) Remedies in Addition to Other Laws.
3 (1) The rights, remedies, duties and penalties created
4 by this Section are in addition to and not in substitution
5 for any other rights, remedies, duties and penalties created
6 by any other law.
7 (2) Nothing in this Section shall be construed as
8 invalidating any assignment of wages or benefits executed
9 prior to January 1, 1984.
10 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
11 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
12 (Text of Section after amendment by P.A. 89-507)
13 Sec. 4.1. Withholding of Income to Secure Payment of
14 Support.
15 (A) Definitions.
16 (1) "Order for support" means any order of the court
17 which provides for periodic payment of funds for the support
18 of a child or maintenance of a spouse, whether temporary or
19 final, and includes any such order which provides for:
20 (a) Modification or resumption of, or payment of
21 arrearage accrued under, a previously existing order;
22 (b) Reimbursement of support; or
23 (c) Enrollment in a health insurance plan that is
24 available to the obligor through an employer or labor
25 union or trade union.
26 (2) "Arrearage" means the total amount of unpaid support
27 obligations.
28 (3) "Delinquency" means any payment under an order for
29 support which becomes due and remains unpaid after an order
30 for withholding has been entered under subsection (B) or, for
31 purposes of subsection (K), after the last order for support
32 was entered for which no order for withholding was entered.
33 (4) "Income" means any form of periodic payment to an
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1 individual, regardless of source, including, but not limited
2 to: wages, salary, commission, compensation as an independent
3 contractor, workers' compensation, disability, annuity and
4 retirement benefits, lottery prize awards, insurance
5 proceeds, vacation pay, bonuses, profit-sharing payments and
6 any other payments, made by any person, private entity,
7 federal or state government, any unit of local government,
8 school district or any entity created by Public Act; however,
9 "income" excludes:
10 (a) Any amounts required by law to be withheld,
11 other than creditor claims, including, but not limited
12 to, federal, State and local taxes, Social Security and
13 other retirement and disability contributions;
14 (b) Union dues;
15 (c) Any amounts exempted by the federal Consumer
16 Credit Protection Act;
17 (d) Public assistance payments; and
18 (e) Unemployment insurance benefits except as
19 provided by law.
20 Any other State or local laws which limit or exempt
21 income or the amount or percentage of income that can be
22 withheld shall not apply.
23 (5) "Obligor" means the individual who owes a duty to
24 make payments under an order for support.
25 (6) "Obligee" means the individual to whom a duty of
26 support is owed or the individual's legal representative.
27 (7) "Payor" means any payor of income to an obligor.
28 (8) "Public office" means any elected official or any
29 State or local agency which is or may become responsible by
30 law for enforcement of, or which is or may become authorized
31 to enforce, an order for support, including, but not limited
32 to: the Attorney General, the Illinois Department of Public
33 Aid, the Illinois Department of Human Services, the Illinois
34 Department of Children and Family Services, and the various
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1 State's Attorneys, Clerks of the Circuit Court and
2 supervisors of general assistance.
3 (9) "Premium" means the dollar amount for which the
4 obligor is liable to his employer or labor union or trade
5 union and which must be paid to enroll or maintain a child in
6 a health insurance plan that is available to the obligor
7 through an employer or labor union or trade union.
8 (B) Entry of an Order for Withholding.
9 (1) Upon entry of any order for support on or after
10 January 1, 1984, the court shall enter a separate order for
11 withholding which shall not take effect unless the obligor
12 becomes delinquent in paying the order for support or the
13 obligor requests an earlier effective date; except that the
14 court may require the order for withholding to take effect
15 immediately.
16 On or after January 1, 1989, the court shall require the
17 order for withholding to take effect immediately, unless a
18 written agreement is reached between and signed by both
19 parties providing for an alternative arrangement, approved
20 and entered into the record by the court, which insures
21 payment of support. In that case, the court shall enter the
22 order for withholding which will not take effect unless the
23 obligor becomes delinquent in paying the order for support.
24 Upon entry of any order of support on or after September
25 11, 1989, if the obligor is not a United States citizen, the
26 obligor shall provide to the court the obligor's alien
27 registration number, passport number, and home country's
28 social security or national health number, if applicable; the
29 court shall make the information part of the record in the
30 case.
31 (2) An order for withholding shall be entered upon
32 petition by the obligee or public office where an order for
33 withholding has not been previously entered.
34 (3) The order for withholding shall:
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1 (a) Direct any payor to withhold a dollar amount
2 equal to the order for support; and
3 (b) Direct any payor to withhold an additional
4 dollar amount, not less than 20% of the order for
5 support, until payment in full of any delinquency stated
6 in the notice of delinquency provided for in subsection
7 (C) or (F) of this Section; and
8 (c) Direct any payor or labor union or trade union
9 to enroll a child as a beneficiary of a health insurance
10 plan and withhold or cause to be withheld, if applicable,
11 any required premiums; and
12 (d) State the rights, remedies and duties of the
13 obligor under this Section; and
14 (e) Include the obligor's Social Security Number,
15 which the obligor shall disclose to the court; and
16 (f) Include the date that withholding for current
17 support terminates, which shall be the date of
18 termination of the current support obligation set forth
19 in the order for support.
20 (4) At the time the order for withholding is entered,
21 the Clerk of the Circuit Court shall provide a copy of the
22 order for withholding and the order for support to the
23 obligor and shall make copies available to the obligee and
24 public office. Any copy of the order for withholding
25 furnished to the parties under this subsection shall be
26 stamped "Not Valid".
27 (5) The order for withholding shall remain in effect for
28 as long as the order for support upon which it is based.
29 (6) The failure of an order for withholding to state an
30 arrearage is not conclusive of the issue of whether an
31 arrearage is owing.
32 (7) Notwithstanding the provisions of this subsection,
33 if the court finds at the time of any hearing that an
34 arrearage has accrued in an amount equal to at least one
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1 month's support obligation or that the obligor is 30 days
2 late in paying all or part of the order for support, the
3 court shall order immediate service of the order for
4 withholding upon the payor.
5 (8) Where the court has not required that the order for
6 withholding take effect immediately, the obligee or public
7 office may prepare and serve a notice for immediate
8 withholding upon the obligor by ordinary mail addressed to
9 the obligor at his or her last known address. The notice
10 shall state that the following circumstances have occurred:
11 (a) The parties' written agreement providing an
12 alternative arrangement to immediate withholding under
13 paragraph (1) of this subsection no longer provides for
14 timely payment of all support due; or
15 (b) The obligor has not made timely payments in
16 that the obligor has been at least 7 days late in paying
17 all or part of the order for support any of the last 6
18 consecutive dates payments were due prior to the date of
19 the notice for immediate withholding.
20 The notice for immediate withholding shall clearly state
21 that a specially certified copy of the order for withholding
22 will be sent to the payor, unless the obligor files a
23 petition contesting immediate withholding within 20 days
24 after service of the notice; however, the grounds for the
25 petition shall be limited to a dispute concerning whether the
26 circumstances stated in the notice have occurred or the
27 identity of the obligor. It shall not be grounds for the
28 petition that the obligor has made all payments due by the
29 date of the petition.
30 If the obligor files a petition contesting immediate
31 withholding within the 20-day period required under this
32 paragraph, the Clerk of the Circuit Court shall notify the
33 obligor and the obligee or public office, as appropriate, of
34 the time and place of the hearing on the petition. Upon
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1 hearing the petition, the court shall enter an order granting
2 or denying relief. It shall not be grounds for granting the
3 obligor's petition that he or she has made all payments due
4 by the date of hearing. If the court denies the obligor's
5 petition, it shall order immediate service of the order for
6 withholding, and direct the clerk to provide a specially
7 certified copy of the order for withholding to the obligee or
8 public office indicating that the requirements for immediate
9 withholding under this paragraph have been met.
10 If the obligor does not file a petition contesting
11 immediate withholding within the 20-day period, the obligee
12 or public office shall file with the Clerk of the Circuit
13 Court an affidavit, with a copy of the notice for immediate
14 withholding attached thereto, stating that the notice was
15 duly served and the date on which service was effected, and
16 that the obligor has not filed a petition contesting
17 immediate withholding. The clerk shall then provide to the
18 obligee or public office a specially certified copy of the
19 order for withholding indicating that the requirements for
20 immediate withholding under this paragraph have been met.
21 Upon receipt of a specially certified copy of the order
22 for withholding, the obligee or public office may serve the
23 order on the payor, its superintendent, manager or other
24 agent, by certified mail or personal delivery. A proof of
25 service shall be filed with the Clerk of the Circuit Court.
26 (C) Notice of Delinquency.
27 (1) Whenever an obligor becomes delinquent in payment of
28 an amount equal to at least one month's support obligation
29 pursuant to the order for support or is at least 30 days late
30 in complying with all or part of the order for support,
31 whichever occurs first, the obligee or public office may
32 prepare and serve a verified notice of delinquency, together
33 with a form petition to stay service, pursuant to paragraph
34 (3) of this subsection.
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1 (2) The notice of delinquency shall recite the terms of
2 the order for support and contain a computation of the period
3 and total amount of the delinquency, as of the date of the
4 notice. The notice shall clearly state that it will be sent
5 to the payor, together with a specially certified copy of the
6 order for withholding, except as provided in subsection (F),
7 unless the obligor files a petition to stay service in
8 accordance with paragraph (1) of subsection (D).
9 (3) The notice of delinquency shall be served by
10 ordinary mail addressed to the obligor at his or her last
11 known address.
12 (4) The obligor may execute a written waiver of the
13 provisions of paragraphs (1) through (3) of this subsection
14 and request immediate service upon the payor.
15 (D) Procedures to Avoid Income Withholding.
16 (1) Except as provided in subsection (F), the obligor
17 may prevent an order for withholding from being served by
18 filing a petition to stay service with the Clerk of the
19 Circuit Court, within 20 days after service of the notice of
20 delinquency; however, the grounds for the petition to stay
21 service shall be limited to:
22 (a) A dispute concerning the amount of current
23 support or the existence or amount of the delinquency;
24 (b) The identity of the obligor.
25 The Clerk of the Circuit Court shall notify the obligor
26 and the obligee or public office, as appropriate, of the time
27 and place of the hearing on the petition to stay service. The
28 court shall hold such hearing pursuant to the provisions of
29 subsection (H).
30 (2) Except as provided in subsection (F), filing of a
31 petition to stay service, within the 20-day period required
32 under this subsection, shall prohibit the obligee or public
33 office from serving the order for withholding on any payor of
34 the obligor.
-100- LRB9003396DJcd
1 (E) Initial Service of Order for Withholding.
2 (1) Except as provided in subsection (F), in order to
3 serve an order for withholding upon a payor, an obligee or
4 public office shall follow the procedures set forth in this
5 subsection. After 20 days following service of the notice of
6 delinquency, the obligee or public office shall file with the
7 Clerk of the Circuit Court an affidavit, with the copy of the
8 notice of delinquency attached thereto, stating:
9 (a) that the notice of delinquency has been duly
10 served and the date on which service was effected; and
11 (b) that the obligor has not filed a petition to
12 stay service, or in the alternative
13 (c) that the obligor has waived the provisions of
14 subparagraphs (a) and (b) of this paragraph (1) in
15 accordance with subsection (C)(4).
16 (2) Upon request of the obligee or public office, the
17 Clerk of the Circuit Court shall: (a) make available any
18 record of payment; and (b) determine that the file contains a
19 copy of the affidavit described in paragraph (1). The Clerk
20 shall then provide to the obligee or public office a
21 specially certified copy of the order for withholding and the
22 notice of delinquency indicating that the preconditions for
23 service have been met.
24 (3) The obligee or public office may then serve the
25 notice of delinquency and order for withholding on the payor,
26 its superintendent, manager or other agent, by regular or
27 certified mail or facsimile personal delivery. A proof of
28 service shall be filed with the Clerk of the Circuit Court.
29 (F) Subsequent Service of Order for Withholding.
30 (1) Notwithstanding the provisions of this Section, at
31 any time after the court has ordered immediate service of an
32 order for withholding or after initial service of an order
33 for withholding pursuant to subsection (E), the obligee or
34 public office may serve the order for withholding upon any
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1 payor of the obligor without further notice to the obligor.
2 The obligee or public office shall provide notice to the
3 payor, pursuant to paragraph (6) of subsection (I), of any
4 payments that have been made through previous withholding or
5 any other method.
6 (2) The Clerk of the Circuit Court shall, upon request,
7 provide the obligee or public office with specially certified
8 copies of the order for withholding or the notice of
9 delinquency or both whenever the Court has ordered immediate
10 service of an order for withholding or an affidavit has been
11 placed in the court file indicating that the preconditions
12 for service have been previously met. The obligee or public
13 office may then serve the order for withholding on the payor,
14 its superintendent, manager or other agent by regular or
15 certified mail or facsimile personal delivery. A proof of
16 service shall be filed with the Clerk of the Circuit Court.
17 (3) If a delinquency has accrued for any reason, the
18 obligee or public office may serve a notice of delinquency
19 upon the obligor pursuant to subsection (C). The obligor may
20 prevent the notice of delinquency from being served upon the
21 payor by utilizing the procedures set forth in subsection
22 (D).
23 If no petition to stay service has been filed within the
24 required 20 day time period, the obligee or public office may
25 serve the notice of delinquency on the payor by utilizing the
26 procedures for service set forth in subsection (E).
27 (4) New service of an order for withholding is not
28 required in order to resume withholding of income in the case
29 of an obligor with respect to whom an order for withholding
30 was previously served on the payor if withholding of income
31 was terminated because of an interruption in the obligor's
32 employment of less than 180 days.
33 (G) Duties of Payor.
34 (1) It shall be the duty of any payor who has been
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1 served with a copy of the specially certified order for
2 withholding and any notice of delinquency to deduct and pay
3 over income as provided in this subsection. The payor shall
4 deduct the amount designated in the order for withholding, as
5 supplemented by the notice of delinquency and any notice
6 provided pursuant to paragraph (6) of subsection (I),
7 beginning no later than the next payment of income which is
8 payable to the obligor that occurs 14 days following the date
9 the order and any notice were mailed by certified mail or
10 placed for personal delivery. The payor may combine all
11 amounts withheld for the benefit of an obligee or public
12 office into a single payment and transmit the payment with a
13 listing of obligors from whom withholding has been effected.
14 The payor shall pay the amount withheld to the obligee or
15 public office within 10 calendar days of the date income is
16 paid to the obligor in accordance with the order for
17 withholding and any subsequent notification received from the
18 public office redirecting payments. If the payor knowingly
19 fails to pay any amount withheld to the obligee or public
20 office within 10 calendar days of the date income is paid to
21 the obligor, the payor shall pay a penalty of $100 for each
22 day that the withheld amount is not paid to the obligee or
23 public office after the period of 10 calendar days has
24 expired. The failure of a payor, on more than one occasion,
25 to pay amounts withheld to the obligee or public office
26 within 10 calendar days of the date income is paid to the
27 obligor creates a presumption that the payor knowingly failed
28 to pay the amounts. This penalty may be collected in a civil
29 action which may be brought against the payor in favor of the
30 obligee. A finding of a payor's nonperformance within the
31 time required under this Section must be documented by a
32 certified mail return receipt showing the date the order for
33 withholding was served on the payor. For purposes of this
34 Section, a withheld amount shall be considered paid by a
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1 payor on the date it is mailed by the payor, or on the date
2 an electronic funds transfer of the amount has been initiated
3 by the payor, or on the date delivery of the amount has been
4 initiated by the payor. For each deduction, the payor shall
5 provide the obligee or public office, at the time of
6 transmittal, with the date income was paid from which support
7 was withheld.
8 Upon receipt of an order requiring that a minor child be
9 named as a beneficiary of a health insurance plan available
10 through an employer or labor union or trade union, the
11 employer or labor union or trade union shall immediately
12 enroll the minor child as a beneficiary in the health
13 insurance plan designated by the court order. The employer
14 shall withhold any required premiums and pay over any amounts
15 so withheld and any additional amounts the employer pays to
16 the insurance carrier in a timely manner. The employer or
17 labor union or trade union shall mail to the obligee, within
18 15 days of enrollment or upon request, notice of the date of
19 coverage, information on the dependent coverage plan, and all
20 forms necessary to obtain reimbursement for covered health
21 expenses, such as would be made available to a new employee.
22 When an order for dependent coverage is in effect and the
23 insurance coverage is terminated or changed for any reason,
24 the employer or labor union or trade union shall notify the
25 obligee within 10 days of the termination or change date
26 along with notice of conversion privileges.
27 For withholding of income, the payor shall be entitled to
28 receive a fee not to exceed $5 per month or the actual check
29 processing cost to be taken from the income to be paid to the
30 obligor.
31 (2) Whenever the obligor is no longer receiving income
32 from the payor, the payor shall return a copy of the order
33 for withholding to the obligee or public office and shall
34 provide information for the purpose of enforcing this
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1 Section.
2 (3) Withholding of income under this Section shall be
3 made without regard to any prior or subsequent garnishments,
4 attachments, wage assignments, or any other claims of
5 creditors. Withholding of income under this Section shall
6 not be in excess of the maximum amounts permitted under the
7 federal Consumer Credit Protection Act. If the payor has been
8 served with more than one order for withholding pertaining to
9 the same obligor, the payor shall allocate income available
10 for withholding on a proportionate share basis, giving
11 priority to current support payments. If there is any income
12 available for withholding after withholding for all current
13 support obligations, the payor shall allocate the income to
14 past due support payments ordered in non-AFDC matters and
15 then to past due support payments ordered in AFDC matters,
16 both on a proportionate share basis. Payment as required by
17 the order for withholding shall be a complete defense by the
18 payor against any claims of the obligor or his creditors as
19 to the sum so paid.
20 (4) No payor shall discharge, discipline, refuse to hire
21 or otherwise penalize any obligor because of the duty to
22 withhold income.
23 (H) Petitions to Stay Service or to Modify, Suspend or
24 Terminate Orders for Withholding.
25 (1) When an obligor files a petition to stay service,
26 the court, after due notice to all parties, shall hear the
27 matter as soon as practicable and shall enter an order
28 granting or denying relief, amending the notice of
29 delinquency, amending the order for withholding, where
30 applicable, or otherwise resolving the matter. If the court
31 finds that a delinquency existed when the notice of
32 delinquency was served upon the obligor, in an amount of at
33 least one month's support obligation, or that the obligor was
34 at least 30 days late in paying all or part of the order for
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1 support, the court shall order immediate service of the order
2 for withholding. Where the court cannot promptly resolve any
3 dispute over the amount of the delinquency, the court may
4 order immediate service of the order for withholding as to
5 any undisputed amounts specified in an amended notice of
6 delinquency, and may continue the hearing on the disputed
7 amounts.
8 (2) At any time, an obligor, obligee, public office or
9 Clerk of the Circuit Court may petition the court to:
10 (a) Modify, suspend or terminate the order for
11 withholding because of a modification, suspension or
12 termination of the underlying order for support; or
13 (b) Modify the amount of income to be withheld to
14 reflect payment in full or in part of the delinquency or
15 arrearage by income withholding or otherwise; or
16 (c) Suspend the order for withholding because of
17 inability to deliver income withheld to the obligee due
18 to the obligee's failure to provide a mailing address or
19 other means of delivery.
20 (3) The obligor, obligee or public office shall serve on
21 the payor, by certified mail or personal delivery, a copy of
22 any order entered pursuant to this subsection that affects
23 the duties of the payor.
24 (4) At any time, a public office or Clerk of the Circuit
25 Court may serve a notice on the payor to:
26 (a) cease withholding of income for payment of
27 current support for a child when the support obligation
28 for that child has automatically ceased under the order
29 for support through emancipation or otherwise; or
30 (b) cease withholding of income for payment of
31 delinquency or arrearage when the delinquency or
32 arrearage has been paid in full.
33 (5) The notice provided for under paragraph (4) of this
34 subsection shall be served on the payor by ordinary mail, and
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1 a copy shall be provided to the obligor and the obligee. A
2 copy of the notice shall be filed with the Clerk of the
3 Circuit Court.
4 (6) The order for withholding shall continue to be
5 binding upon the payor until service of any order of the
6 court or notice entered or provided for under this
7 subsection.
8 (I) Additional Duties.
9 (1) An obligee who is receiving income withholding
10 payments under this Section shall notify the payor, if the
11 obligee receives the payments directly from the payor, or the
12 public office or the Clerk of the Circuit Court, as
13 appropriate, of any change of address within 7 days of such
14 change.
15 (2) An obligee who is a recipient of public aid shall
16 send a copy of any notice of delinquency filed pursuant to
17 subsection (C) to the Bureau of Child Support of the Illinois
18 Department of Public Aid.
19 (3) Each obligor shall notify the obligee and the Clerk
20 of the Circuit Court of any change of address within 7 days.
21 (4) An obligor whose income is being withheld or who has
22 been served with a notice of delinquency pursuant to this
23 Section shall notify the obligee and the Clerk of the Circuit
24 Court of any new payor, within 7 days.
25 (5) When the Illinois Department of Public Aid is no
26 longer authorized to receive payments for the obligee, it
27 shall, within 7 days, notify the payor or, where appropriate,
28 the Clerk of the Circuit Court, to redirect income
29 withholding payments to the obligee.
30 (6) The obligee or public office shall provide notice to
31 the payor and Clerk of the Circuit Court of any other support
32 payment made, including but not limited to, a set-off under
33 federal and State law or partial payment of the delinquency
34 or arrearage, or both.
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1 (7) Any public office and Clerk of the Circuit Court
2 which collects, disburses or receives payments pursuant to
3 orders for withholding shall maintain complete, accurate, and
4 clear records of all payments and their disbursements.
5 Certified copies of payment records maintained by a public
6 office or Clerk of the Circuit Court shall, without further
7 proof, be admitted into evidence in any legal proceedings
8 under this Section.
9 (8) The Illinois Department of Public Aid shall design
10 suggested legal forms for proceeding under this Section and
11 shall make available to the courts such forms and
12 informational materials which describe the procedures and
13 remedies set forth herein for distribution to all parties in
14 support actions.
15 (9) At the time of transmitting each support payment,
16 the clerk of the circuit court shall provide the obligee or
17 public office, as appropriate, with any information furnished
18 by the payor as to the date income was paid from which such
19 support was withheld.
20 (J) Penalties.
21 (1) Where a payor wilfully fails to withhold or pay over
22 income pursuant to a properly served, specially certified
23 order for withholding and any notice of delinquency, or
24 wilfully discharges, disciplines, refuses to hire or
25 otherwise penalizes an obligor as prohibited by subsection
26 (G), or otherwise fails to comply with any duties imposed by
27 this Section, the obligee, public office or obligor, as
28 appropriate, may file a complaint with the court against the
29 payor. The clerk of the circuit court shall notify the
30 obligee or public office, as appropriate, and the obligor and
31 payor of the time and place of the hearing on the complaint.
32 The court shall resolve any factual dispute including, but
33 not limited to, a denial that the payor is paying or has paid
34 income to the obligor. Upon a finding in favor of the
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1 complaining party, the court:
2 (a) Shall enter judgment and direct the enforcement
3 thereof for the total amount that the payor wilfully
4 failed to withhold or pay over; and
5 (b) May order employment or reinstatement of or
6 restitution to the obligor, or both, where the obligor
7 has been discharged, disciplined, denied employment or
8 otherwise penalized by the payor and may impose a fine
9 upon the payor not to exceed $200.
10 (2) Any obligee, public office or obligor who wilfully
11 initiates a false proceeding under this Section or who
12 wilfully fails to comply with the requirements of this
13 Section shall be punished as in cases of contempt of court.
14 (K) Alternative Procedures for Entry and Service of an Order
15 for Withholding.
16 (1) Effective January 1, 1987, in any matter in which an
17 order for withholding has not been entered for any reason,
18 based upon the last order for support that has been entered,
19 and in which the obligor has become delinquent in payment of
20 an amount equal to at least one month's support obligation
21 pursuant to the last order for support or is at least 30 days
22 late in complying with all or part of the order for support,
23 the obligee or public office may prepare and serve an order
24 for withholding pursuant to the procedures set forth in this
25 subsection.
26 (2) The obligee or public office shall:
27 (a) Prepare a proposed order for withholding for
28 immediate service as provided by paragraphs (1) and (3)
29 of subsection (B), except that the minimum 20%
30 delinquency payment shall be used;
31 (b) Prepare a notice of delinquency as provided by
32 paragraphs (1) and (2) of subsection (C), except the
33 notice shall state further that the order for withholding
34 has not been entered by the court and the conditions
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1 under which the order will be entered; and
2 (c) Serve the notice of delinquency and form
3 petition to stay service as provided by paragraph (3) of
4 subsection (C), together with the proposed order for
5 withholding, which shall be marked "COPY ONLY".
6 (3) After 20 days following service of the notice of
7 delinquency and proposed order for withholding, in lieu of
8 the provisions of subsection (E), the obligee or public
9 office shall file with the Clerk of the Circuit Court an
10 affidavit, with a copy of the notice of delinquency and
11 proposed order for withholding attached thereto, stating
12 that:
13 (a) The notice of delinquency and proposed order
14 for withholding have been served upon the obligor and the
15 date on which service was effected;
16 (b) The obligor has not filed a petition to stay
17 service within 20 days of service of such notice and
18 order; and
19 (c) The proposed order for withholding accurately
20 states the terms and amounts contained in the last order
21 for support.
22 (4) Upon the court's satisfaction that the procedures
23 set forth in this subsection have been met, it shall enter
24 the order for withholding.
25 (5) The Clerk shall then provide to the obligee or
26 public office a specially certified copy of the order for
27 withholding and the notice of delinquency indicating that the
28 preconditions for service have been met.
29 (6) The obligee or public office shall serve the
30 specially certified copies of the order for withholding and
31 the notice of delinquency on the payor, its superintendent,
32 manager or other agent by certified mail or personal
33 delivery. A proof of service shall be filed with the Clerk
34 of the Circuit Court.
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1 (7) If the obligor requests in writing that income
2 withholding become effective prior to becoming delinquent in
3 payment of an amount equal to one month's support obligation
4 pursuant to the last order for support, or prior to becoming
5 30 days late in paying all or part of the order for support,
6 the obligee or public office shall file an affidavit with the
7 Clerk of the circuit Court, with a proposed order for
8 withholding attached, stating that the proposed order
9 accurately states the terms and amounts contained in the last
10 order for support and the obligor's request for immediate
11 service. The provisions of paragraphs (4) through (6) of
12 this subsection shall apply, except that a notice of
13 delinquency shall not be required.
14 (8) All other provisions of this Section shall be
15 applicable with respect to the provisions of this subsection
16 (K), except that under paragraph (1) of subsection (H), the
17 court may also amend the proposed order for withholding to
18 conform to the last order for support.
19 (9) Nothing in this subsection shall be construed as
20 limiting the requirements of paragraph (1) of subsection (B)
21 with respect to the entry of a separate order for withholding
22 upon entry of any order for support.
23 (L) Remedies in Addition to Other Laws.
24 (1) The rights, remedies, duties and penalties created
25 by this Section are in addition to and not in substitution
26 for any other rights, remedies, duties and penalties created
27 by any other law.
28 (2) Nothing in this Section shall be construed as
29 invalidating any assignment of wages or benefits executed
30 prior to January 1, 1984.
31 (Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
32 eff. 12-2-94; 89-507, eff. 7-1-97.)
33 Section 93. The Revised Uniform Reciprocal Enforcement
-111- LRB9003396DJcd
1 of Support Act is amended by changing Section 26.1 as
2 follows:
3 (750 ILCS 20/26.1) (from Ch. 40, par. 1226.1)
4 (Text of Section before amendment by P.A. 89-507)
5 Sec. 26.1. Withholding of Income to Secure Payment of
6 Support.
7 (A) Definitions.
8 (1) "Order for support" means any order of the court
9 which provides for periodic payment of funds for the support
10 of a child or maintenance of a spouse, whether temporary or
11 final, and includes any such order which provides for:
12 (a) modification or resumption of, or payment of
13 arrearage accrued under, a previously existing order;
14 (b) reimbursement of support; or
15 (c) enrollment in a health insurance plan that is
16 available to the obligor through an employer or labor
17 union or trade union.
18 (2) "Arrearage" means the total amount of unpaid support
19 obligations.
20 (3) "Delinquency" means any payment under an order for
21 support which becomes due and remains unpaid after an order
22 for withholding has been entered under subsection (B) or, for
23 purposes of subsection (K), after the last order for support
24 was entered for which no order for withholding was entered.
25 (4) "Income" means any form of periodic payment to an
26 individual, regardless of source, including, but not limited
27 to: wages, salary, commission, compensation as an independent
28 contractor, workers' compensation, disability, annuity and
29 retirement benefits, lottery prize awards, insurance
30 proceeds, vacation pay, bonuses, profit-sharing payments and
31 any other payments, made by any person, private entity,
32 federal or state government, any unit of local government,
33 school district or any entity created by Public Act; however,
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1 "income" excludes:
2 (a) any amounts required by law to be withheld,
3 other than creditor claims, including, but not limited
4 to, federal, State and local taxes, Social Security and
5 other retirement and disability contributions;
6 (b) union dues;
7 (c) any amounts exempted by the federal Consumer
8 Credit Protection Act;
9 (d) public assistance payments; and
10 (e) unemployment insurance benefits except as
11 provided by law.
12 Any other State or local laws which limit or exempt
13 income or the amount or percentage of income that can be
14 withheld shall not apply.
15 (5) "Obligor" means the individual who owes a duty to
16 make payments under an order for support.
17 (6) "Obligee" means the individual to whom a duty of
18 support is owed or the individual's legal representative.
19 (7) "Payor" means any payor of income to an obligor.
20 (8) "Public office" means any elected official or any
21 State or local agency which is or may become responsible by
22 law for enforcement of, or which is or may become authorized
23 to enforce, an order for support, including, but not limited
24 to: the Attorney General, the Illinois Department of Public
25 Aid, the Illinois Department of Mental Health and
26 Developmental Disabilities, the Illinois Department of
27 Children and Family Services, and the various State's
28 Attorneys, Clerks of the Circuit Court and supervisors of
29 general assistance.
30 (9) "Premium" means the dollar amount for which the
31 obligor is liable to his employer or labor union or trade
32 union and which must be paid to enroll or maintain a child in
33 a health insurance plan that is available to the obligor
34 through an employer or labor union or trade union.
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1 (B) Entry of an Order for Withholding.
2 (1) Upon entry of any order for support on or after
3 January 1, 1984, the court shall enter a separate order for
4 withholding which shall not take effect unless the obligor
5 becomes delinquent in paying the order for support or the
6 obligor requests an earlier effective date; except that the
7 court may require the order for withholding to take effect
8 immediately.
9 On or after January 1, 1989, the court shall require the
10 order for withholding to take effect immediately, unless a
11 written agreement is reached between and signed by both
12 parties providing for an alternative arrangement, approved
13 and entered into the record by the court, which insures
14 payment of support. In that case, the court shall enter the
15 order for withholding which will not take effect unless the
16 obligor becomes delinquent in paying the order for support.
17 Upon entry of any order of support on or after September
18 11, 1989, if the obligor is not a United States citizen, the
19 obligor shall provide to the court the obligor's alien
20 registration number, passport number, and home country's
21 social security or national health number, if applicable; the
22 court shall make the information part of the record in the
23 case.
24 (2) An order for withholding shall be entered upon
25 petition by the obligee or public office where an order for
26 withholding has not been previously entered.
27 (3) The order for withholding shall:
28 (a) direct any payor to withhold a dollar amount
29 equal to the order for support; and
30 (b) direct any payor to withhold an additional
31 dollar amount, not less than 20% of the order for
32 support, until payment in full of any delinquency stated
33 in the notice of delinquency provided for in subsection
34 (C) or (F) of this Section; and
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1 (c) direct any payor or labor union or trade union
2 to enroll a child as a beneficiary of a health insurance
3 plan and withhold or cause to be withheld, if applicable,
4 any required premiums; and
5 (d) state the rights, remedies and duties of the
6 obligor under this Section; and
7 (e) include the obligor's Social Security Number,
8 which the obligor shall disclose to the court; and
9 (f) include the date that withholding for current
10 support terminates, which shall be the date of
11 termination of the current support obligation set forth
12 in the order for support.
13 (4) At the time the order for withholding is entered,
14 the Clerk of the Circuit Court shall provide a copy of the
15 order for withholding and the order for support to the
16 obligor and shall make copies available to the obligee and
17 public office. Any copy of the order for withholding
18 furnished to the parties under this subsection shall be
19 stamped "Not Valid".
20 (5) The order for withholding shall remain in effect for
21 as long as the order for support upon which it is based.
22 (6) The failure of an order for withholding to state an
23 arrearage is not conclusive of the issue of whether an
24 arrearage is owing.
25 (7) Notwithstanding the provisions of this subsection,
26 if the court finds at the time of any hearing that an
27 arrearage has accrued in an amount equal to at least one
28 month's support obligation or that the obligor is 30 days
29 late in paying all or part of the order for support, the
30 court shall order immediate service of the order for
31 withholding upon the payor.
32 (8) Where the court has not required that the order for
33 withholding take effect immediately, the obligee or public
34 office may prepare and serve a notice for immediate
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1 withholding upon the obligor by ordinary mail addressed to
2 the obligor at his or her last known address. The notice
3 shall state that the following circumstances have occurred:
4 (a) The parties' written agreement providing an
5 alternative arrangement to immediate withholding under
6 paragraph (1) of this subsection no longer provides for
7 timely payment of all support due; or
8 (b) The obligor has not made timely payments in
9 that the obligor has been at least 7 days late in paying
10 all or part of the order for support any of the last 6
11 consecutive dates payments were due prior to the date of
12 the notice for immediate withholding.
13 The notice for immediate withholding shall clearly state
14 that a specially certified copy of the order for withholding
15 will be sent to the payor, unless the obligor files a
16 petition contesting immediate withholding within 20 days
17 after service of the notice; however, the grounds for the
18 petition shall be limited to a dispute concerning whether the
19 circumstances stated in the notice have occurred or the
20 identity of the obligor. It shall not be grounds for the
21 petition that the obligor has made all payments due by the
22 date of the petition.
23 If the obligor files a petition contesting immediate
24 withholding within the 20-day period required under this
25 paragraph, the Clerk of the Circuit Court shall notify the
26 obligor and the obligee or public office, as appropriate, of
27 the time and place of the hearing on the petition. Upon
28 hearing the petition, the court shall enter an order granting
29 or denying relief. It shall not be grounds for granting the
30 obligor's petition that he or she has made all payments due
31 by the date of hearing. If the court denies the obligor's
32 petition, it shall order immediate service of the order for
33 withholding and direct the clerk to provide a specially
34 certified copy of the order for withholding to the obligee or
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1 public office indicating that the requirements for immediate
2 withholding under this paragraph have been met.
3 If the obligor does not file a petition contesting
4 immediate withholding within the 20-day period, the obligee
5 or public office shall file with the Clerk of the Circuit
6 Court an affidavit, with a copy of the notice for immediate
7 withholding attached thereto, stating that the notice was
8 duly served and the date on which service was effected, and
9 that the obligor has not filed a petition contesting
10 immediate withholding. The clerk shall then provide to the
11 obligee or public office a specially certified copy of the
12 order for withholding indicating that the requirements for
13 immediate withholding under this paragraph have been met.
14 Upon receipt of a specially certified copy of the order
15 for withholding, the obligee or public office may serve the
16 order on the payor, its superintendent, manager or other
17 agent, by certified mail or personal delivery. A proof of
18 service shall be filed with the Clerk of the Circuit Court.
19 (C) Notice of Delinquency.
20 (1) Whenever an obligor becomes delinquent in payment of
21 an amount equal to at least one month's support obligation
22 pursuant to the order for support or is at least 30 days late
23 in complying with all or part of the order for support,
24 whichever occurs first, the obligee or public office may
25 prepare and serve a verified notice of delinquency, together
26 with a form petition to stay service, pursuant to paragraph
27 (3) of this subsection.
28 (2) The notice of delinquency shall recite the terms of
29 the order for support and contain a computation of the period
30 and total amount of the delinquency, as of the date of the
31 notice. The notice shall clearly state that it will be sent
32 to the payor, together with a specially certified copy of the
33 order for withholding, except as provided in subsection (F),
34 unless the obligor files a petition to stay service in
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1 accordance with paragraph (1) of subsection (D).
2 (3) The notice of delinquency shall be served by
3 ordinary mail addressed to the obligor at his or her last
4 known address.
5 (4) The obligor may execute a written waiver of the
6 provisions of paragraphs (1) through (3) of this subsection
7 and request immediate service upon the payor.
8 (D) Procedures to Avoid Income Withholding.
9 (1) Except as provided in subsection (F), the obligor
10 may prevent an order for withholding from being served by
11 filing a petition to stay service with the Clerk of the
12 Circuit Court, within 20 days after service of the notice of
13 delinquency; however, the grounds for the petition to stay
14 service shall be limited to a dispute concerning: (a) the
15 amount of current support or the existence or amount of the
16 delinquency; or (b) the identity of the obligor.
17 The Clerk of the Circuit Court shall notify the obligor
18 and the obligee or public office, as appropriate, of the time
19 and place of the hearing on the petition to stay service. The
20 court shall hold such hearing pursuant to the provisions of
21 subsection (H).
22 (2) Except as provided in subsection (F), filing of a
23 petition to stay service, within the 20-day period required
24 under this subsection, shall prohibit the obligee or public
25 office from serving the order for withholding on any payor of
26 the obligor.
27 (E) Initial Service of Order for Withholding.
28 (1) Except as provided in subsection (F), in order to
29 serve an order for withholding upon a payor, an obligee or
30 public office shall follow the procedures set forth in this
31 subsection. After 20 days following service of the notice of
32 delinquency, the obligee or public office shall file with the
33 Clerk of the Circuit Court an affidavit, with the copy of the
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1 notice of delinquency attached thereto, stating:
2 (a) that the notice of delinquency has been duly
3 served and the date on which service was effected; and
4 (b) that the obligor has not filed a petition to
5 stay service, or in the alternative
6 (c) that the obligor has waived the provisions of
7 subparagraphs (a) and (b) of this paragraph (1) in
8 accordance with subsection (C)(4).
9 (2) Upon request of the obligee or public office, the
10 Clerk of the Circuit shall: (a) make available any record of
11 payment; and (b) determine that the file contains a copy of
12 the affidavit described in paragraph (1). The Clerk shall
13 then provide to the obligee or public office a specially
14 certified copy of the order for withholding and the notice of
15 delinquency indicating that the preconditions for service
16 have been met.
17 (3) The obligee or public office may then serve the
18 notice of delinquency and order for withholding on the payor,
19 its superintendent, manager or other agent, by regular or
20 certified mail or facsimile personal delivery. A proof of
21 service shall be filed with the Clerk of the Circuit Court.
22 (F) Subsequent Service of Order for Withholding.
23 (1) Notwithstanding the provisions of this Section, at
24 any time after the court has ordered immediate service of an
25 order for withholding or after initial service of an order
26 for withholding pursuant to subsection (E), the obligee or
27 public office may serve the order for withholding upon any
28 payor of the obligor without further notice to the obligor.
29 The obligee or public office shall provide notice to the
30 payor, pursuant to paragraph (6) of subsection (I), of any
31 payments that have been made through previous withholding or
32 any other method.
33 (2) The Clerk of the Circuit Court shall, upon request,
34 provide the obligee or public office with specially certified
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1 copies of the order for withholding or the notice of
2 delinquency or both whenever the Court has ordered immediate
3 service of an order for withholding or an affidavit has been
4 placed in the court file indicating that the preconditions
5 for service have been previously met. The obligee or public
6 office may then serve the order for withholding on the payor,
7 its superintendent, manager or other agent by regular or
8 certified mail or facsimile personal delivery. A proof of
9 service shall be filed with the Clerk of the Circuit Court.
10 (3) If a delinquency has accrued for any reason, the
11 obligee or public office may serve a notice of delinquency
12 upon the obligor pursuant to subsection (C). The obligor may
13 prevent the notice of delinquency from being served upon the
14 payor by utilizing the procedures set forth in subsection
15 (D). If no petition to stay service has been filed within the
16 required 20 day time period, the obligee or public office may
17 serve the notice of delinquency on the payor by utilizing the
18 procedures for service set forth in subsection (E).
19 (4) New service of an order for withholding is not
20 required in order to resume withholding of income in the case
21 of an obligor with respect to whom an order for withholding
22 was previously served on the payor if withholding of income
23 was terminated because of an interruption in the obligor's
24 employment of less than 180 days.
25 (G) Duties of Payor.
26 (1) It shall be the duty of any payor who has been
27 served with a copy of the specially certified order for
28 withholding and any notice of delinquency to deduct and pay
29 over income as provided in this subsection. The payor shall
30 deduct the amount designated in the order for withholding, as
31 supplemented by the notice of delinquency and any notice
32 provided pursuant to paragraph (6) of subsection (I),
33 beginning no later than the next payment of income which is
34 payable to the obligor that occurs 14 days following the date
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1 the order and any notice were mailed by certified mail or
2 placed for personal delivery. The payor may combine all
3 amounts withheld for the benefit of an obligee or public
4 office into a single payment and transmit the payment with a
5 listing of obligors from whom withholding has been effected.
6 The payor shall pay the amount withheld to the obligee or
7 public office within 10 calendar days of the date income is
8 paid to the obligor in accordance with the order for
9 withholding and any subsequent notification received from the
10 public office redirecting payments. If the payor knowingly
11 fails to pay any amount withheld to the obligee or public
12 office within 10 calendar days of the date income is paid to
13 the obligor, the payor shall pay a penalty of $100 for each
14 day that the withheld amount is not paid to the obligee or
15 public office after the period of 10 calendar days has
16 expired. The failure of a payor, on more than one occasion,
17 to pay amounts withheld to the obligee or public office
18 within 10 calendar days of the date income is paid to the
19 obligor creates a presumption that the payor knowingly failed
20 to pay the amounts. This penalty may be collected in a civil
21 action which may be brought against the payor in favor of the
22 obligee. A finding of a payor's nonperformance within the
23 time required under this Section must be documented by a
24 certified mail return receipt showing the date the order for
25 withholding was served on the payor. For purposes of this
26 Section, a withheld amount shall be considered paid by a
27 payor on the date it is mailed by the payor, or on the date
28 an electronic funds transfer of the amount has been initiated
29 by the payor, or on the date delivery of the amount has been
30 initiated by the payor. For each deduction, the payor shall
31 provide the obligee or public office, at the time of
32 transmittal, with the date income was paid from which support
33 was withheld.
34 Upon receipt of an order requiring that a minor child be
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1 named as a beneficiary of a health insurance plan available
2 through an employer or labor union or trade union, the
3 employer or labor union or trade union shall immediately
4 enroll the minor child as a beneficiary in the the health
5 insurance plan designated by the court order. The employer
6 shall withhold any required premiums and pay over any amounts
7 so withheld and any additional amounts the employer pays to
8 the insurance carrier in a timely manner. The employer or
9 labor union or trade union shall mail to the obligee, within
10 15 days of enrollment or upon request, notice of the date of
11 coverage, information on the dependent coverage plan, and all
12 forms necessary to obtain reimbursement for covered health
13 expenses, such as would be made available to a new employee.
14 When an order for dependent coverage is in effect and the
15 insurance coverage is terminated or changed for any reason,
16 the employer or labor union or trade union shall notify the
17 obligee within 10 days of the termination or change date
18 along with notice of conversion privileges.
19 For withholding of income, the payor shall be entitled to
20 receive a fee not to exceed $5 per month to be taken from the
21 income to be paid to the obligor.
22 (2) Whenever the obligor is no longer receiving income
23 from the payor, the payor shall return a copy of the order
24 for withholding to the obligee or public office and shall
25 provide information for the purpose of enforcing this
26 Section.
27 (3) Withholding of income under this Section shall be
28 made without regard to any prior or subsequent garnishments,
29 attachments, wage assignments, or any other claims of
30 creditors. Withholding of income under this Section shall
31 not be in excess of the maximum amounts permitted under the
32 federal Consumer Credit Protection Act. If the payor has been
33 served with more than one order for withholding pertaining to
34 the same obligor, the payor shall allocate income available
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1 for withholding on a proportionate share basis, giving
2 priority to current support payments. If there is any income
3 available for withholding after withholding for all current
4 support obligations, the payor shall allocate the income to
5 past due support payments ordered in non-AFDC matters and
6 then to past due support payments ordered in AFDC matters,
7 both on a proportionate share basis. Payment as required by
8 the order for withholding shall be a complete defense by the
9 payor against any claims of the obligor or his creditors as
10 to the sum so paid.
11 (4) No payor shall discharge, discipline, refuse to hire
12 or otherwise penalize any obligor because of the duty to
13 withhold income.
14 (H) Petitions to Stay Service or to Modify, Suspend or
15 Terminate Orders for Withholding.
16 (1) When an obligor files a petition to stay service,
17 the court, after due notice to all parties, shall hear the
18 matter as soon as practicable and shall enter an order
19 granting or denying relief, amending the notice of
20 delinquency, amending the order for withholding where
21 applicable, or otherwise resolving the matter. If the court
22 finds that a delinquency existed when the notice of
23 delinquency was served upon the obligor, in an amount of at
24 least one month's support obligation, or that the obligor was
25 at least 30 days late in paying all or part of the order for
26 support, the court shall order immediate service of the order
27 for withholding. Where the court cannot promptly resolve any
28 dispute over the amount of the delinquency, the court may
29 order immediate service of the order for withholding as to
30 any undisputed amounts specified in an amended notice of
31 delinquency, and may continue the hearing on the disputed
32 amounts.
33 (2) At any time, an obligor, obligee, public office or
34 Clerk of the Circuit Court may petition the court to:
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1 (a) modify, suspend or terminate the order for
2 withholding because of a modification, suspension or
3 termination of the underlying order for support; or
4 (b) modify the amount of income to be withheld to
5 reflect payment in full or in part of the delinquency or
6 arrearage by income withholding or otherwise; or
7 (c) suspend the order for withholding because of
8 inability to deliver income withheld to the obligee due
9 to the obligee's failure to provide a mailing address or
10 other means of delivery.
11 (3) The obligor, obligee or public office shall serve on
12 the payor, by certified mail or personal delivery, a copy of
13 any order entered pursuant to this subsection that affects
14 the duties of the payor.
15 (4) At any time, a public office or Clerk of the Circuit
16 Court may serve a notice on the payor to:
17 (a) cease withholding of income for payment of
18 current support for a child when the support obligation
19 for that child has automatically ceased under the order
20 for support through emancipation or otherwise; or
21 (b) cease withholding of income for payment of
22 delinquency or arrearage when the delinquency or
23 arrearage has been paid in full.
24 (5) The notice provided for under paragraph (4) of this
25 subsection shall be served on the payor by ordinary mail, and
26 a copy shall be provided to the obligor and the obligee. A
27 copy of the notice shall be filed with the Clerk of the
28 Circuit Court.
29 (6) The order for withholding shall continue to be
30 binding upon the payor until service of any order of the
31 court or notice entered or provided for under this
32 subsection.
33 (I) Additional Duties.
34 (1) An obligee who is receiving income withholding
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1 payments under this Section shall notify the payor, if the
2 obligee receives the payments directly from the payor, or the
3 public office or the Clerk of the Circuit Court, as
4 appropriate, of any change of address within 7 days of such
5 change.
6 (2) An obligee who is a recipient of public aid shall
7 send a copy of any notice of delinquency filed pursuant to
8 subsection (C) to the Bureau of Child Support of the Illinois
9 Department of Public Aid.
10 (3) Each obligor shall notify the obligee and the Clerk
11 of the Circuit Court of any change of address within 7 days.
12 (4) An obligor whose income is being withheld or who has
13 been served with a notice of delinquency pursuant to this
14 Section shall notify the obligee and the Clerk of the Circuit
15 Court of any new payor, within 7 days.
16 (5) When the Illinois Department of Public Aid is no
17 longer authorized to receive payments for the obligee, it
18 shall, within 7 days, notify the payor or, where appropriate,
19 the Clerk of the Circuit Court, to redirect income
20 withholding payments to the obligee.
21 (6) The obligee or public office shall provide notice to
22 the payor and Clerk of the Circuit Court of any other support
23 payment made, including but not limited to, a set-off under
24 federal and State law or partial payment of the delinquency
25 or arrearage, or both.
26 (7) Any public office and Clerk of the Circuit Court
27 which collects, disburses or receives payments pursuant to
28 orders for withholding shall maintain complete, accurate, and
29 clear records of all payments and their disbursements.
30 Certified copies of payment records maintained by a public
31 office or Clerk of the Circuit Court shall, without further
32 proof, be admitted into evidence in any legal proceedings
33 under this Section.
34 (8) The Illinois Department of Public Aid shall design
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1 suggested legal forms for proceeding under this Section and
2 shall make available to the courts such forms and
3 informational materials which describe the procedures and
4 remedies set forth herein for distribution to all parties in
5 support actions.
6 (9) At the time of transmitting each support payment,
7 the clerk of the circuit court shall provide the obligee or
8 public office, as appropriate, with any information furnished
9 by the payor as to the date income was paid from which such
10 support was withheld.
11 (J) Penalties.
12 (1) Where a payor wilfully fails to withhold or pay over
13 income pursuant to a properly served, specially certified
14 order for withholding and any notice of delinquency, or
15 wilfully discharges, disciplines, refuses to hire or
16 otherwise penalizes an obligor as prohibited by subsection
17 (G), or otherwise fails to comply with any duties imposed by
18 this Section, the obligee, public office or obligor, as
19 appropriate, may file a complaint with the court against the
20 payor. The clerk of the circuit court shall notify the
21 obligee or public office, as appropriate, and the obligor and
22 payor of the time and place of the hearing on the complaint.
23 The court shall resolve any factual dispute including, but
24 not limited to, a denial that the payor is paying or has paid
25 income to the obligor. Upon a finding in favor of the
26 complaining party, the court:
27 (a) shall enter judgment and direct the enforcement
28 thereof for the total amount that the payor wilfully
29 failed to withhold or pay over; and
30 (b) may order employment or reinstatement of or
31 restitution to the obligor, or both, where the obligor
32 has been discharged, disciplined, denied employment or
33 otherwise penalized by the payor and may impose a fine
34 upon the payor not to exceed $200.
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1 (2) Any obligee, public office or obligor who wilfully
2 initiates a false proceeding under this Section or who
3 wilfully fails to comply with the requirements of this
4 Section shall be punished as in cases of contempt of court.
5 (K) Alternative Procedures for Entry and Service of an Order
6 for Withholding.
7 (1) Effective January 1, 1987, in any matter in which an
8 order for withholding has not been entered for any reason,
9 based upon the last order for support that has been entered,
10 and in which the obligor has become delinquent in payment of
11 an amount equal to at least one month's support obligation
12 pursuant to the last order for support or is at least 30 days
13 late in complying with all or part of the order for support,
14 the obligee or public office may prepare and serve an order
15 for withholding pursuant to the procedures set forth in this
16 subsection.
17 (2) The obligee or public office shall:
18 (a) prepare a proposed order for withholding for
19 immediate service as provided by paragraphs (1) and (3)
20 of subsection (B), except that the minimum 20%
21 delinquency payment shall be used;
22 (b) prepare a notice of delinquency as provided by
23 paragraphs (1) and (2) of subsection (C), except the
24 notice shall state further that the order for withholding
25 has not been entered by the court and the conditions
26 under which the order will be entered; and
27 (c) serve the notice of delinquency and form
28 petition to stay service as provided by paragraph (3) of
29 subsection (C), together with the proposed order for
30 withholding, which shall be marked "COPY ONLY".
31 (3) After 20 days following service of the notice of
32 delinquency and proposed order for withholding, in lieu of
33 the provisions of subsection (E), the obligee or public
34 office shall file with the Clerk of the Circuit Court an
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1 affidavit, with a copy of the notice of delinquency and
2 proposed order for withholding attached thereto, stating
3 that:
4 (a) the notice of delinquency and proposed order
5 for withholding have been served upon the obligor and the
6 date on which service was effected;
7 (b) the obligor has not filed a petition to stay
8 service within 20 days of service of such notice and
9 order; and
10 (c) the proposed order for withholding accurately
11 states the terms and amounts contained in the last order
12 for support.
13 (4) Upon the court's satisfaction that the procedures
14 set forth in this subsection have been met, it shall enter
15 the order for withholding.
16 (5) The Clerk shall then provide to the obligee or
17 public office a specially certified copy of the order for
18 withholding and the notice of delinquency indicating that the
19 preconditions for service have been met.
20 (6) The obligee or public office shall serve the
21 specially certified copies of the order for withholding and
22 the notice of delinquency on the payor, its superintendent,
23 manager or other agent by certified mail or personal
24 delivery. A proof of service shall be filed with the Clerk
25 of the Circuit Court.
26 (7) If the obligor requests in writing that income
27 withholding become effective prior to becoming delinquent in
28 payment of an amount equal to one month's support obligation
29 pursuant to the last order for support, or prior to becoming
30 30 days late in paying all or part of the order for support,
31 the obligee or public office shall file an affidavit with the
32 Clerk of the circuit Court, with a proposed order for
33 withholding attached, stating that the proposed order
34 accurately states the terms and amounts contained in the last
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1 order for support and the obligor's request for immediate
2 service. The provisions of paragraphs (4) through (6) of
3 this subsection shall apply, except that a notice of
4 delinquency shall not be required.
5 (8) All other provisions of this Section shall be
6 applicable with respect to the provisions of this subsection
7 (K), except that under paragraph (1) of subsection (H), the
8 court may also amend the proposed order for withholding to
9 conform to the last order for support.
10 (9) Nothing in this subsection shall be construed as
11 limiting the requirements of paragraph (1) of subsection (B)
12 with respect to the entry of a separate order for withholding
13 upon entry of any order for support.
14 (L) Remedies in Addition to Other Laws.
15 (1) The rights, remedies, duties and penalties created
16 by this Section are in addition to and not in substitution
17 for any other rights, remedies, duties and penalties created
18 by any other law.
19 (2) Nothing in this Section shall be construed as
20 invalidating any assignment of wages or benefits executed
21 prior to January 1, 1984.
22 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
23 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
24 (Text of Section after amendment by P.A. 89-507)
25 Sec. 26.1. Withholding of Income to Secure Payment of
26 Support.
27 (A) Definitions.
28 (1) "Order for support" means any order of the court
29 which provides for periodic payment of funds for the support
30 of a child or maintenance of a spouse, whether temporary or
31 final, and includes any such order which provides for:
32 (a) modification or resumption of, or payment of
33 arrearage accrued under, a previously existing order;
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1 (b) reimbursement of support; or
2 (c) enrollment in a health insurance plan that is
3 available to the obligor through an employer or labor
4 union or trade union.
5 (2) "Arrearage" means the total amount of unpaid support
6 obligations.
7 (3) "Delinquency" means any payment under an order for
8 support which becomes due and remains unpaid after an order
9 for withholding has been entered under subsection (B) or, for
10 purposes of subsection (K), after the last order for support
11 was entered for which no order for withholding was entered.
12 (4) "Income" means any form of periodic payment to an
13 individual, regardless of source, including, but not limited
14 to: wages, salary, commission, compensation as an independent
15 contractor, workers' compensation, disability, annuity and
16 retirement benefits, lottery prize awards, insurance
17 proceeds, vacation pay, bonuses, profit-sharing payments and
18 any other payments, made by any person, private entity,
19 federal or state government, any unit of local government,
20 school district or any entity created by Public Act; however,
21 "income" excludes:
22 (a) any amounts required by law to be withheld,
23 other than creditor claims, including, but not limited
24 to, federal, State and local taxes, Social Security and
25 other retirement and disability contributions;
26 (b) union dues;
27 (c) any amounts exempted by the federal Consumer
28 Credit Protection Act;
29 (d) public assistance payments; and
30 (e) unemployment insurance benefits except as
31 provided by law.
32 Any other State or local laws which limit or exempt
33 income or the amount or percentage of income that can be
34 withheld shall not apply.
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1 (5) "Obligor" means the individual who owes a duty to
2 make payments under an order for support.
3 (6) "Obligee" means the individual to whom a duty of
4 support is owed or the individual's legal representative.
5 (7) "Payor" means any payor of income to an obligor.
6 (8) "Public office" means any elected official or any
7 State or local agency which is or may become responsible by
8 law for enforcement of, or which is or may become authorized
9 to enforce, an order for support, including, but not limited
10 to: the Attorney General, the Illinois Department of Public
11 Aid, the Illinois Department of Human Services, the Illinois
12 Department of Children and Family Services, and the various
13 State's Attorneys, Clerks of the Circuit Court and
14 supervisors of general assistance.
15 (9) "Premium" means the dollar amount for which the
16 obligor is liable to his employer or labor union or trade
17 union and which must be paid to enroll or maintain a child in
18 a health insurance plan that is available to the obligor
19 through an employer or labor union or trade union.
20 (B) Entry of an Order for Withholding.
21 (1) Upon entry of any order for support on or after
22 January 1, 1984, the court shall enter a separate order for
23 withholding which shall not take effect unless the obligor
24 becomes delinquent in paying the order for support or the
25 obligor requests an earlier effective date; except that the
26 court may require the order for withholding to take effect
27 immediately.
28 On or after January 1, 1989, the court shall require the
29 order for withholding to take effect immediately, unless a
30 written agreement is reached between and signed by both
31 parties providing for an alternative arrangement, approved
32 and entered into the record by the court, which insures
33 payment of support. In that case, the court shall enter the
34 order for withholding which will not take effect unless the
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1 obligor becomes delinquent in paying the order for support.
2 Upon entry of any order of support on or after September
3 11, 1989, if the obligor is not a United States citizen, the
4 obligor shall provide to the court the obligor's alien
5 registration number, passport number, and home country's
6 social security or national health number, if applicable; the
7 court shall make the information part of the record in the
8 case.
9 (2) An order for withholding shall be entered upon
10 petition by the obligee or public office where an order for
11 withholding has not been previously entered.
12 (3) The order for withholding shall:
13 (a) direct any payor to withhold a dollar amount
14 equal to the order for support; and
15 (b) direct any payor to withhold an additional
16 dollar amount, not less than 20% of the order for
17 support, until payment in full of any delinquency stated
18 in the notice of delinquency provided for in subsection
19 (C) or (F) of this Section; and
20 (c) direct any payor or labor union or trade union
21 to enroll a child as a beneficiary of a health insurance
22 plan and withhold or cause to be withheld, if applicable,
23 any required premiums; and
24 (d) state the rights, remedies and duties of the
25 obligor under this Section; and
26 (e) include the obligor's Social Security Number,
27 which the obligor shall disclose to the court; and
28 (f) include the date that withholding for current
29 support terminates, which shall be the date of
30 termination of the current support obligation set forth
31 in the order for support.
32 (4) At the time the order for withholding is entered,
33 the Clerk of the Circuit Court shall provide a copy of the
34 order for withholding and the order for support to the
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1 obligor and shall make copies available to the obligee and
2 public office. Any copy of the order for withholding
3 furnished to the parties under this subsection shall be
4 stamped "Not Valid".
5 (5) The order for withholding shall remain in effect for
6 as long as the order for support upon which it is based.
7 (6) The failure of an order for withholding to state an
8 arrearage is not conclusive of the issue of whether an
9 arrearage is owing.
10 (7) Notwithstanding the provisions of this subsection,
11 if the court finds at the time of any hearing that an
12 arrearage has accrued in an amount equal to at least one
13 month's support obligation or that the obligor is 30 days
14 late in paying all or part of the order for support, the
15 court shall order immediate service of the order for
16 withholding upon the payor.
17 (8) Where the court has not required that the order for
18 withholding take effect immediately, the obligee or public
19 office may prepare and serve a notice for immediate
20 withholding upon the obligor by ordinary mail addressed to
21 the obligor at his or her last known address. The notice
22 shall state that the following circumstances have occurred:
23 (a) The parties' written agreement providing an
24 alternative arrangement to immediate withholding under
25 paragraph (1) of this subsection no longer provides for
26 timely payment of all support due; or
27 (b) The obligor has not made timely payments in
28 that the obligor has been at least 7 days late in paying
29 all or part of the order for support any of the last 6
30 consecutive dates payments were due prior to the date of
31 the notice for immediate withholding.
32 The notice for immediate withholding shall clearly state
33 that a specially certified copy of the order for withholding
34 will be sent to the payor, unless the obligor files a
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1 petition contesting immediate withholding within 20 days
2 after service of the notice; however, the grounds for the
3 petition shall be limited to a dispute concerning whether the
4 circumstances stated in the notice have occurred or the
5 identity of the obligor. It shall not be grounds for the
6 petition that the obligor has made all payments due by the
7 date of the petition.
8 If the obligor files a petition contesting immediate
9 withholding within the 20-day period required under this
10 paragraph, the Clerk of the Circuit Court shall notify the
11 obligor and the obligee or public office, as appropriate, of
12 the time and place of the hearing on the petition. Upon
13 hearing the petition, the court shall enter an order granting
14 or denying relief. It shall not be grounds for granting the
15 obligor's petition that he or she has made all payments due
16 by the date of hearing. If the court denies the obligor's
17 petition, it shall order immediate service of the order for
18 withholding and direct the clerk to provide a specially
19 certified copy of the order for withholding to the obligee or
20 public office indicating that the requirements for immediate
21 withholding under this paragraph have been met.
22 If the obligor does not file a petition contesting
23 immediate withholding within the 20-day period, the obligee
24 or public office shall file with the Clerk of the Circuit
25 Court an affidavit, with a copy of the notice for immediate
26 withholding attached thereto, stating that the notice was
27 duly served and the date on which service was effected, and
28 that the obligor has not filed a petition contesting
29 immediate withholding. The clerk shall then provide to the
30 obligee or public office a specially certified copy of the
31 order for withholding indicating that the requirements for
32 immediate withholding under this paragraph have been met.
33 Upon receipt of a specially certified copy of the order
34 for withholding, the obligee or public office may serve the
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1 order on the payor, its superintendent, manager or other
2 agent, by certified mail or personal delivery. A proof of
3 service shall be filed with the Clerk of the Circuit Court.
4 (C) Notice of Delinquency.
5 (1) Whenever an obligor becomes delinquent in payment of
6 an amount equal to at least one month's support obligation
7 pursuant to the order for support or is at least 30 days late
8 in complying with all or part of the order for support,
9 whichever occurs first, the obligee or public office may
10 prepare and serve a verified notice of delinquency, together
11 with a form petition to stay service, pursuant to paragraph
12 (3) of this subsection.
13 (2) The notice of delinquency shall recite the terms of
14 the order for support and contain a computation of the period
15 and total amount of the delinquency, as of the date of the
16 notice. The notice shall clearly state that it will be sent
17 to the payor, together with a specially certified copy of the
18 order for withholding, except as provided in subsection (F),
19 unless the obligor files a petition to stay service in
20 accordance with paragraph (1) of subsection (D).
21 (3) The notice of delinquency shall be served by
22 ordinary mail addressed to the obligor at his or her last
23 known address.
24 (4) The obligor may execute a written waiver of the
25 provisions of paragraphs (1) through (3) of this subsection
26 and request immediate service upon the payor.
27 (D) Procedures to Avoid Income Withholding.
28 (1) Except as provided in subsection (F), the obligor
29 may prevent an order for withholding from being served by
30 filing a petition to stay service with the Clerk of the
31 Circuit Court, within 20 days after service of the notice of
32 delinquency; however, the grounds for the petition to stay
33 service shall be limited to a dispute concerning: (a) the
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1 amount of current support or the existence or amount of the
2 delinquency; or (b) the identity of the obligor.
3 The Clerk of the Circuit Court shall notify the obligor
4 and the obligee or public office, as appropriate, of the time
5 and place of the hearing on the petition to stay service. The
6 court shall hold such hearing pursuant to the provisions of
7 subsection (H).
8 (2) Except as provided in subsection (F), filing of a
9 petition to stay service, within the 20-day period required
10 under this subsection, shall prohibit the obligee or public
11 office from serving the order for withholding on any payor of
12 the obligor.
13 (E) Initial Service of Order for Withholding.
14 (1) Except as provided in subsection (F), in order to
15 serve an order for withholding upon a payor, an obligee or
16 public office shall follow the procedures set forth in this
17 subsection. After 20 days following service of the notice of
18 delinquency, the obligee or public office shall file with the
19 Clerk of the Circuit Court an affidavit, with the copy of the
20 notice of delinquency attached thereto, stating:
21 (a) that the notice of delinquency has been duly
22 served and the date on which service was effected; and
23 (b) that the obligor has not filed a petition to
24 stay service, or in the alternative
25 (c) that the obligor has waived the provisions of
26 subparagraphs (a) and (b) of this paragraph (1) in
27 accordance with subsection (C)(4).
28 (2) Upon request of the obligee or public office, the
29 Clerk of the Circuit shall: (a) make available any record of
30 payment; and (b) determine that the file contains a copy of
31 the affidavit described in paragraph (1). The Clerk shall
32 then provide to the obligee or public office a specially
33 certified copy of the order for withholding and the notice of
34 delinquency indicating that the preconditions for service
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1 have been met.
2 (3) The obligee or public office may then serve the
3 notice of delinquency and order for withholding on the payor,
4 its superintendent, manager or other agent, by regular or
5 certified mail or facsimile personal delivery. A proof of
6 service shall be filed with the Clerk of the Circuit Court.
7 (F) Subsequent Service of Order for Withholding.
8 (1) Notwithstanding the provisions of this Section, at
9 any time after the court has ordered immediate service of an
10 order for withholding or after initial service of an order
11 for withholding pursuant to subsection (E), the obligee or
12 public office may serve the order for withholding upon any
13 payor of the obligor without further notice to the obligor.
14 The obligee or public office shall provide notice to the
15 payor, pursuant to paragraph (6) of subsection (I), of any
16 payments that have been made through previous withholding or
17 any other method.
18 (2) The Clerk of the Circuit Court shall, upon request,
19 provide the obligee or public office with specially certified
20 copies of the order for withholding or the notice of
21 delinquency or both whenever the Court has ordered immediate
22 service of an order for withholding or an affidavit has been
23 placed in the court file indicating that the preconditions
24 for service have been previously met. The obligee or public
25 office may then serve the order for withholding on the payor,
26 its superintendent, manager or other agent by regular or
27 certified mail or facsimile personal delivery. A proof of
28 service shall be filed with the Clerk of the Circuit Court.
29 (3) If a delinquency has accrued for any reason, the
30 obligee or public office may serve a notice of delinquency
31 upon the obligor pursuant to subsection (C). The obligor may
32 prevent the notice of delinquency from being served upon the
33 payor by utilizing the procedures set forth in subsection
34 (D). If no petition to stay service has been filed within the
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1 required 20 day time period, the obligee or public office may
2 serve the notice of delinquency on the payor by utilizing the
3 procedures for service set forth in subsection (E).
4 (4) New service of an order for withholding is not
5 required in order to resume withholding of income in the case
6 of an obligor with respect to whom an order for withholding
7 was previously served on the payor if withholding of income
8 was terminated because of an interruption in the obligor's
9 employment of less than 180 days.
10 (G) Duties of Payor.
11 (1) It shall be the duty of any payor who has been
12 served with a copy of the specially certified order for
13 withholding and any notice of delinquency to deduct and pay
14 over income as provided in this subsection. The payor shall
15 deduct the amount designated in the order for withholding, as
16 supplemented by the notice of delinquency and any notice
17 provided pursuant to paragraph (6) of subsection (I),
18 beginning no later than the next payment of income which is
19 payable to the obligor that occurs 14 days following the date
20 the order and any notice were mailed by certified mail or
21 placed for personal delivery. The payor may combine all
22 amounts withheld for the benefit of an obligee or public
23 office into a single payment and transmit the payment with a
24 listing of obligors from whom withholding has been effected.
25 The payor shall pay the amount withheld to the obligee or
26 public office within 10 calendar days of the date income is
27 paid to the obligor in accordance with the order for
28 withholding and any subsequent notification received from the
29 public office redirecting payments. If the payor knowingly
30 fails to pay any amount withheld to the obligee or public
31 office within 10 calendar days of the date income is paid to
32 the obligor, the payor shall pay a penalty of $100 for each
33 day that the withheld amount is not paid to the obligee or
34 public office after the period of 10 calendar days has
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1 expired. The failure of a payor, on more than one occasion,
2 to pay amounts withheld to the obligee or public office
3 within 10 calendar days of the date income is paid to the
4 obligor creates a presumption that the payor knowingly failed
5 to pay the amounts. This penalty may be collected in a civil
6 action which may be brought against the payor in favor of the
7 obligee. A finding of a payor's nonperformance within the
8 time required under this Section must be documented by a
9 certified mail return receipt showing the date the order for
10 withholding was served on the payor. For purposes of this
11 Section, a withheld amount shall be considered paid by a
12 payor on the date it is mailed by the payor, or on the date
13 an electronic funds transfer of the amount has been initiated
14 by the payor, or on the date delivery of the amount has been
15 initiated by the payor. For each deduction, the payor shall
16 provide the obligee or public office, at the time of
17 transmittal, with the date income was paid from which support
18 was withheld.
19 Upon receipt of an order requiring that a minor child be
20 named as a beneficiary of a health insurance plan available
21 through an employer or labor union or trade union, the
22 employer or labor union or trade union shall immediately
23 enroll the minor child as a beneficiary in the the health
24 insurance plan designated by the court order. The employer
25 shall withhold any required premiums and pay over any amounts
26 so withheld and any additional amounts the employer pays to
27 the insurance carrier in a timely manner. The employer or
28 labor union or trade union shall mail to the obligee, within
29 15 days of enrollment or upon request, notice of the date of
30 coverage, information on the dependent coverage plan, and all
31 forms necessary to obtain reimbursement for covered health
32 expenses, such as would be made available to a new employee.
33 When an order for dependent coverage is in effect and the
34 insurance coverage is terminated or changed for any reason,
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1 the employer or labor union or trade union shall notify the
2 obligee within 10 days of the termination or change date
3 along with notice of conversion privileges.
4 For withholding of income, the payor shall be entitled to
5 receive a fee not to exceed $5 per month to be taken from the
6 income to be paid to the obligor.
7 (2) Whenever the obligor is no longer receiving income
8 from the payor, the payor shall return a copy of the order
9 for withholding to the obligee or public office and shall
10 provide information for the purpose of enforcing this
11 Section.
12 (3) Withholding of income under this Section shall be
13 made without regard to any prior or subsequent garnishments,
14 attachments, wage assignments, or any other claims of
15 creditors. Withholding of income under this Section shall
16 not be in excess of the maximum amounts permitted under the
17 federal Consumer Credit Protection Act. If the payor has been
18 served with more than one order for withholding pertaining to
19 the same obligor, the payor shall allocate income available
20 for withholding on a proportionate share basis, giving
21 priority to current support payments. If there is any income
22 available for withholding after withholding for all current
23 support obligations, the payor shall allocate the income to
24 past due support payments ordered in non-AFDC matters and
25 then to past due support payments ordered in AFDC matters,
26 both on a proportionate share basis. Payment as required by
27 the order for withholding shall be a complete defense by the
28 payor against any claims of the obligor or his creditors as
29 to the sum so paid.
30 (4) No payor shall discharge, discipline, refuse to hire
31 or otherwise penalize any obligor because of the duty to
32 withhold income.
33 (H) Petitions to Stay Service or to Modify, Suspend or
34 Terminate Orders for Withholding.
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1 (1) When an obligor files a petition to stay service,
2 the court, after due notice to all parties, shall hear the
3 matter as soon as practicable and shall enter an order
4 granting or denying relief, amending the notice of
5 delinquency, amending the order for withholding where
6 applicable, or otherwise resolving the matter. If the court
7 finds that a delinquency existed when the notice of
8 delinquency was served upon the obligor, in an amount of at
9 least one month's support obligation, or that the obligor was
10 at least 30 days late in paying all or part of the order for
11 support, the court shall order immediate service of the order
12 for withholding. Where the court cannot promptly resolve any
13 dispute over the amount of the delinquency, the court may
14 order immediate service of the order for withholding as to
15 any undisputed amounts specified in an amended notice of
16 delinquency, and may continue the hearing on the disputed
17 amounts.
18 (2) At any time, an obligor, obligee, public office or
19 Clerk of the Circuit Court may petition the court to:
20 (a) modify, suspend or terminate the order for
21 withholding because of a modification, suspension or
22 termination of the underlying order for support; or
23 (b) modify the amount of income to be withheld to
24 reflect payment in full or in part of the delinquency or
25 arrearage by income withholding or otherwise; or
26 (c) suspend the order for withholding because of
27 inability to deliver income withheld to the obligee due
28 to the obligee's failure to provide a mailing address or
29 other means of delivery.
30 (3) The obligor, obligee or public office shall serve on
31 the payor, by certified mail or personal delivery, a copy of
32 any order entered pursuant to this subsection that affects
33 the duties of the payor.
34 (4) At any time, a public office or Clerk of the Circuit
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1 Court may serve a notice on the payor to:
2 (a) cease withholding of income for payment of
3 current support for a child when the support obligation
4 for that child has automatically ceased under the order
5 for support through emancipation or otherwise; or
6 (b) cease withholding of income for payment of
7 delinquency or arrearage when the delinquency or
8 arrearage has been paid in full.
9 (5) The notice provided for under paragraph (4) of this
10 subsection shall be served on the payor by ordinary mail, and
11 a copy shall be provided to the obligor and the obligee. A
12 copy of the notice shall be filed with the Clerk of the
13 Circuit Court.
14 (6) The order for withholding shall continue to be
15 binding upon the payor until service of any order of the
16 court or notice entered or provided for under this
17 subsection.
18 (I) Additional Duties.
19 (1) An obligee who is receiving income withholding
20 payments under this Section shall notify the payor, if the
21 obligee receives the payments directly from the payor, or the
22 public office or the Clerk of the Circuit Court, as
23 appropriate, of any change of address within 7 days of such
24 change.
25 (2) An obligee who is a recipient of public aid shall
26 send a copy of any notice of delinquency filed pursuant to
27 subsection (C) to the Bureau of Child Support of the Illinois
28 Department of Public Aid.
29 (3) Each obligor shall notify the obligee and the Clerk
30 of the Circuit Court of any change of address within 7 days.
31 (4) An obligor whose income is being withheld or who has
32 been served with a notice of delinquency pursuant to this
33 Section shall notify the obligee and the Clerk of the Circuit
34 Court of any new payor, within 7 days.
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1 (5) When the Illinois Department of Public Aid is no
2 longer authorized to receive payments for the obligee, it
3 shall, within 7 days, notify the payor or, where appropriate,
4 the Clerk of the Circuit Court, to redirect income
5 withholding payments to the obligee.
6 (6) The obligee or public office shall provide notice to
7 the payor and Clerk of the Circuit Court of any other support
8 payment made, including but not limited to, a set-off under
9 federal and State law or partial payment of the delinquency
10 or arrearage, or both.
11 (7) Any public office and Clerk of the Circuit Court
12 which collects, disburses or receives payments pursuant to
13 orders for withholding shall maintain complete, accurate, and
14 clear records of all payments and their disbursements.
15 Certified copies of payment records maintained by a public
16 office or Clerk of the Circuit Court shall, without further
17 proof, be admitted into evidence in any legal proceedings
18 under this Section.
19 (8) The Illinois Department of Public Aid shall design
20 suggested legal forms for proceeding under this Section and
21 shall make available to the courts such forms and
22 informational materials which describe the procedures and
23 remedies set forth herein for distribution to all parties in
24 support actions.
25 (9) At the time of transmitting each support payment,
26 the clerk of the circuit court shall provide the obligee or
27 public office, as appropriate, with any information furnished
28 by the payor as to the date income was paid from which such
29 support was withheld.
30 (J) Penalties.
31 (1) Where a payor wilfully fails to withhold or pay over
32 income pursuant to a properly served, specially certified
33 order for withholding and any notice of delinquency, or
34 wilfully discharges, disciplines, refuses to hire or
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1 otherwise penalizes an obligor as prohibited by subsection
2 (G), or otherwise fails to comply with any duties imposed by
3 this Section, the obligee, public office or obligor, as
4 appropriate, may file a complaint with the court against the
5 payor. The clerk of the circuit court shall notify the
6 obligee or public office, as appropriate, and the obligor and
7 payor of the time and place of the hearing on the complaint.
8 The court shall resolve any factual dispute including, but
9 not limited to, a denial that the payor is paying or has paid
10 income to the obligor. Upon a finding in favor of the
11 complaining party, the court:
12 (a) shall enter judgment and direct the enforcement
13 thereof for the total amount that the payor wilfully
14 failed to withhold or pay over; and
15 (b) may order employment or reinstatement of or
16 restitution to the obligor, or both, where the obligor
17 has been discharged, disciplined, denied employment or
18 otherwise penalized by the payor and may impose a fine
19 upon the payor not to exceed $200.
20 (2) Any obligee, public office or obligor who wilfully
21 initiates a false proceeding under this Section or who
22 wilfully fails to comply with the requirements of this
23 Section shall be punished as in cases of contempt of court.
24 (K) Alternative Procedures for Entry and Service of an Order
25 for Withholding.
26 (1) Effective January 1, 1987, in any matter in which an
27 order for withholding has not been entered for any reason,
28 based upon the last order for support that has been entered,
29 and in which the obligor has become delinquent in payment of
30 an amount equal to at least one month's support obligation
31 pursuant to the last order for support or is at least 30 days
32 late in complying with all or part of the order for support,
33 the obligee or public office may prepare and serve an order
34 for withholding pursuant to the procedures set forth in this
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1 subsection.
2 (2) The obligee or public office shall:
3 (a) prepare a proposed order for withholding for
4 immediate service as provided by paragraphs (1) and (3)
5 of subsection (B), except that the minimum 20%
6 delinquency payment shall be used;
7 (b) prepare a notice of delinquency as provided by
8 paragraphs (1) and (2) of subsection (C), except the
9 notice shall state further that the order for withholding
10 has not been entered by the court and the conditions
11 under which the order will be entered; and
12 (c) serve the notice of delinquency and form
13 petition to stay service as provided by paragraph (3) of
14 subsection (C), together with the proposed order for
15 withholding, which shall be marked "COPY ONLY".
16 (3) After 20 days following service of the notice of
17 delinquency and proposed order for withholding, in lieu of
18 the provisions of subsection (E), the obligee or public
19 office shall file with the Clerk of the Circuit Court an
20 affidavit, with a copy of the notice of delinquency and
21 proposed order for withholding attached thereto, stating
22 that:
23 (a) the notice of delinquency and proposed order
24 for withholding have been served upon the obligor and the
25 date on which service was effected;
26 (b) the obligor has not filed a petition to stay
27 service within 20 days of service of such notice and
28 order; and
29 (c) the proposed order for withholding accurately
30 states the terms and amounts contained in the last order
31 for support.
32 (4) Upon the court's satisfaction that the procedures
33 set forth in this subsection have been met, it shall enter
34 the order for withholding.
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1 (5) The Clerk shall then provide to the obligee or
2 public office a specially certified copy of the order for
3 withholding and the notice of delinquency indicating that the
4 preconditions for service have been met.
5 (6) The obligee or public office shall serve the
6 specially certified copies of the order for withholding and
7 the notice of delinquency on the payor, its superintendent,
8 manager or other agent by certified mail or personal
9 delivery. A proof of service shall be filed with the Clerk
10 of the Circuit Court.
11 (7) If the obligor requests in writing that income
12 withholding become effective prior to becoming delinquent in
13 payment of an amount equal to one month's support obligation
14 pursuant to the last order for support, or prior to becoming
15 30 days late in paying all or part of the order for support,
16 the obligee or public office shall file an affidavit with the
17 Clerk of the circuit Court, with a proposed order for
18 withholding attached, stating that the proposed order
19 accurately states the terms and amounts contained in the last
20 order for support and the obligor's request for immediate
21 service. The provisions of paragraphs (4) through (6) of
22 this subsection shall apply, except that a notice of
23 delinquency shall not be required.
24 (8) All other provisions of this Section shall be
25 applicable with respect to the provisions of this subsection
26 (K), except that under paragraph (1) of subsection (H), the
27 court may also amend the proposed order for withholding to
28 conform to the last order for support.
29 (9) Nothing in this subsection shall be construed as
30 limiting the requirements of paragraph (1) of subsection (B)
31 with respect to the entry of a separate order for withholding
32 upon entry of any order for support.
33 (L) Remedies in Addition to Other Laws.
34 (1) The rights, remedies, duties and penalties created
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1 by this Section are in addition to and not in substitution
2 for any other rights, remedies, duties and penalties created
3 by any other law.
4 (2) Nothing in this Section shall be construed as
5 invalidating any assignment of wages or benefits executed
6 prior to January 1, 1984.
7 (Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
8 eff. 12-2-94; 89-507, eff. 7-1-97.)
9 Section 94. The Illinois Parentage Act of 1984 is
10 amended by changing Section 20 as follows:
11 (750 ILCS 45/20) (from Ch. 40, par. 2520)
12 (Text of Section before amendment by P.A. 89-507)
13 Sec. 20. Withholding of Income to Secure Payment of
14 Support.
15 (A) Definitions.
16 (1) "Order for support" means any order of the court
17 which provides for periodic payment of funds for the support
18 of a child, whether temporary or final, and includes any such
19 order which provides for:
20 (a) modification or resumption of, or payment of
21 arrearage accrued under, a previously existing order;
22 (b) reimbursement of support;
23 (c) payment or reimbursement of the expense of
24 pregnancy and delivery; or
25 (d) enrollment in a health insurance plan that is
26 available to the obligor through an employer or labor
27 union or trade union.
28 (2) "Arrearage" means the total amount of unpaid support
29 obligations.
30 (3) "Delinquency" means any payment under an order for
31 support which becomes due and remains unpaid after an order
32 for withholding has been entered under subsection (B) or, for
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1 purposes of subsection (K), after the last order for support
2 was entered for which no order for withholding was entered.
3 (4) "Income" means any form of periodic payment to an
4 individual, regardless of source, including, but not limited
5 to: wages, salary, commission, compensation as an independent
6 contractor, workers' compensation, disability, annuity and
7 retirement benefits, lottery prize awards, insurance
8 proceeds, vacation pay, bonuses, profit-sharing payments and
9 any other payments, made by any person, private entity,
10 federal or state government, any unit of local government,
11 school district or any entity created by Public Act; however,
12 "income" excludes:
13 (a) any amounts required by law to be withheld,
14 other than creditor claims, including, but not limited
15 to, federal, State and local taxes, Social Security and
16 other retirement and disability contributions;
17 (b) union dues;
18 (c) any amounts exempted by the federal Consumer
19 Credit Protection Act;
20 (d) public assistance payments; and
21 (e) unemployment insurance benefits except as
22 provided by law.
23 Any other State or local laws which limit or exempt
24 income or the amount or percentage of income that can be
25 withheld shall not apply.
26 (5) "Obligor" means the individual who owes a duty to
27 make payments under an order for support.
28 (6) "Obligee" means the individual to whom a duty of
29 support is owed or the individual's legal representative.
30 (7) "Payor" means any payor of income to an obligor.
31 (8) "Public office" means any elected official or any
32 State or local agency which is or may become responsible by
33 law for enforcement of, or which is or may become authorized
34 to enforce, an order for support, including, but not limited
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1 to: the Attorney General, the Illinois Department of Public
2 Aid, the Illinois Department of Mental Health and
3 Developmental Disabilities, the Illinois Department of
4 Children and Family Services, and the various State's
5 Attorneys, Clerks of the Circuit Court and supervisors of
6 general assistance.
7 (9) "Premium" means the dollar amount for which the
8 obligor is liable to his employer or labor union or trade
9 union and which must be paid to enroll or maintain a child in
10 a health insurance plan that is available to the obligor
11 through an employer or labor union or trade union.
12 (B) Entry of an Order for Withholding.
13 (1) Upon entry of any order for support on or after July
14 1, 1985, the court shall enter a separate order for
15 withholding which shall not take effect unless the obligor
16 becomes delinquent in paying the order for support or the
17 obligor requests an earlier effective date; except that the
18 court may require the order for withholding to take effect
19 immediately.
20 On or after January 1, 1989, the court shall require the
21 order for withholding to take effect immediately, unless a
22 written agreement is reached between and signed by both
23 parties providing for an alternative arrangement, approved
24 and entered into the record by the court, which insures
25 payment of support. In that case, the court shall enter the
26 order for withholding which will not take effect unless the
27 obligor becomes delinquent in paying the order for support.
28 Upon entry of any order of support on or after September
29 11, 1989, if the obligor is not a United States citizen, the
30 obligor shall provide to the court the obligor's alien
31 registration number, passport number, and home country's
32 social security or national health number, if applicable; the
33 court shall make the information part of the record in the
34 case.
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1 (2) An order for withholding shall be entered upon
2 petition by the obligee or public office where an order for
3 withholding has not been previously entered.
4 (3) The order for withholding shall:
5 (a) direct any payor to withhold a dollar amount
6 equal to the order for support; and
7 (b) direct any payor to withhold an additional
8 dollar amount, not less than 20% of the order for
9 support, until payment in full of any delinquency stated
10 in the notice of delinquency provided for in subsection
11 (C) or (F) of this Section; and
12 (c) direct any payor or labor union or trade union
13 to enroll a child as a beneficiary of a health insurance
14 plan and withhold or cause to be withheld, if applicable,
15 any required premiums; and
16 (d) state the rights, remedies and duties of the
17 obligor under this Section; and
18 (e) include the obligor's Social Security Number,
19 which the obligor shall disclose to the court; and
20 (f) include the date that withholding for current
21 support terminates, which shall be the date of
22 termination of the current support obligation set forth
23 in the order for support.
24 (4) At the time the order for withholding is entered,
25 the Clerk of the Circuit Court shall provide a copy of the
26 order for withholding and the order for support to the
27 obligor and shall make copies available to the obligee and
28 public office. Any copy of the order for withholding
29 furnished to the parties under this subsection shall be
30 stamped "Not Valid".
31 (5) The order for withholding shall remain in effect for
32 as long as the order for support upon which it is based.
33 (6) The failure of an order for withholding to state an
34 arrearage is not conclusive of the issue of whether an
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1 arrearage is owing.
2 (7) Notwithstanding the provisions of this subsection,
3 if the court finds at the time of any hearing that arrearage
4 has accrued in an amount equal to at least one month's
5 support obligation or that the obligor is 30 days late in
6 paying all or part of the order for support, the court shall
7 order immediate service of the order for withholding upon the
8 payor.
9 (8) Where the court has not required that the order for
10 withholding take effect immediately, the obligee or public
11 office may prepare and serve a notice for immediate
12 withholding upon the obligor by ordinary mail addressed to
13 the obligor at his or her last known address. The notice
14 shall state that the following circumstances have occurred:
15 (a) The parties' written agreement providing an
16 alternative arrangement to immediate withholding under
17 paragraph (1) of this subsection no longer provides for
18 timely payment of all support due; or
19 (b) The obligor has not made timely payments in
20 that the obligor has been at least 7 days late in paying
21 all or part of the order for support any of the last 6
22 consecutive dates payments were due prior to the date of
23 the notice for immediate withholding.
24 The notice for immediate withholding shall clearly state
25 that a specially certified copy of the order for withholding
26 will be sent to the payor, unless the obligor files a
27 petition contesting immediate withholding within 20 days
28 after service of the notice; however, the grounds for the
29 petition shall be limited to a dispute concerning whether the
30 circumstances stated in the notice have occurred or the
31 identity of the obligor. It shall not be grounds for the
32 petition that the obligor has made all payments due by the
33 date of the petition.
34 If the obligor files a petition contesting immediate
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1 withholding within the 20-day period required under this
2 paragraph, the Clerk of the Circuit Court shall notify the
3 obligor and the obligee or public office, as appropriate, of
4 the time and place of the hearing on the petition. Upon
5 hearing the petition, the court shall enter an order granting
6 or denying relief. It shall not be grounds for granting the
7 obligor's petition that he or she has made all payments due
8 by the date of hearing. If the court denies the obligor's
9 petition, it shall order immediate service of the order for
10 withholding and direct the clerk to provide a specially
11 certified copy of the order for withholding to the obligee or
12 public office indicating that the requirements for immediate
13 withholding under this paragraph have been met.
14 If the obligor does not file a petition contesting
15 immediate withholding within the 20-day period, the obligee
16 or public office shall file with the Clerk of the Circuit
17 Court an affidavit, with a copy of the notice for immediate
18 withholding attached thereto, stating that the notice was
19 duly served and the date on which service was effected, and
20 that the obligor has not filed a petition contesting
21 immediate withholding. The clerk shall then provide to the
22 obligee or public office a specially certified copy of the
23 order for withholding indicating that the requirements for
24 immediate withholding under this paragraph have been met.
25 Upon receipt of a specially certified copy of the order
26 for withholding, the obligee or public office may serve the
27 order on the payor, its superintendent, manager or other
28 agent, by certified mail or personal delivery. A proof of
29 service shall be filed with the Clerk of the Circuit Court.
30 (C) Notice of Delinquency.
31 (1) Whenever an obligor becomes delinquent in payment of
32 an amount equal to at least one month's support obligation
33 pursuant to the order for support or is at least 30 days late
34 in complying with all or part of the order for support,
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1 whichever occurs first, the obligee or public office may
2 prepare and serve a verified notice of delinquency, together
3 with a form petition to stay service, pursuant to paragraph
4 (3) of this subsection.
5 (2) The notice of delinquency shall recite the terms of
6 the order for support and contain a computation of the period
7 and total amount of the delinquency, as of the date of the
8 notice. The notice shall clearly state that it will be sent
9 to the payor, together with a specially certified copy of the
10 order for withholding, except as provided in subsection (F),
11 unless the obligor files a petition to stay service in
12 accordance with paragraph (1) of subsection (D).
13 (3) The notice of delinquency shall be served by
14 ordinary mail addressed to the obligor at his or her last
15 known address.
16 (4) The obligor may execute a written waiver of the
17 provisions of paragraphs (1) through (3) of this subsection
18 and request immediate service upon the payor.
19 (D) Procedures to Avoid Income Withholding.
20 (1) Except as provided in subsection (F), the obligor
21 may prevent an order for withholding from being served by
22 filing a petition to stay service with the Clerk of the
23 Circuit Court, within 20 days after service of the notice of
24 delinquency; however, the grounds for the petition to stay
25 service shall be limited to a dispute concerning: (a) the
26 amount of current support or the existence or amount of the
27 delinquency; or (b) the identity of the obligor.
28 The Clerk of the Circuit Court shall notify the obligor
29 and the obligee or public office, as appropriate, of the time
30 and place of the hearing on the petition to stay service. The
31 court shall hold such hearing pursuant to the provisions of
32 subsection (H).
33 (2) Except as provided in subsection (F), filing of a
34 petition to stay service, within the 20-day period required
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1 under this subsection, shall prohibit the obligee or public
2 office from serving the order for withholding on any payor of
3 the obligor.
4 (E) Initial Service of Order for Withholding.
5 (1) Except as provided in subsection (F), in order to
6 serve an order for withholding upon a payor, an obligee or
7 public office shall follow the procedures set forth in this
8 subsection. After 20 days following service of the notice of
9 delinquency, the obligee or public office shall file with the
10 Clerk of the Circuit Court an affidavit, with the copy of the
11 notice of delinquency attached thereto, stating:
12 (a) that the notice of delinquency has been duly
13 served and the date on which service was effected; and
14 (b) that the obligor has not filed a petition to
15 stay service, or in the alternative
16 (c) that the obligor has waived the provisions of
17 subparagraphs (a) and (b) of this paragraph (1) in
18 accordance with subsection (C)(4).
19 (2) Upon request of the obligee or public office, the
20 Clerk of the Circuit Court shall: (a) make available any
21 record of payment; and (b) determine that the file contains a
22 copy of the affidavit described in paragraph (1). The Clerk
23 shall then provide to the obligee or public office a
24 specially certified copy of the order for withholding and the
25 notice of delinquency indicating that the preconditions for
26 service have been met.
27 (3) The obligee or public office may then serve the
28 notice of delinquency and order for withholding on the payor,
29 its superintendent, manager or other agent, by regular or
30 certified mail or facsimile personal delivery. A proof of
31 service shall be filed with the Clerk of the Circuit Court.
32 (F) Subsequent Service of Order for Withholding.
33 (1) Notwithstanding the provisions of this Section, at
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1 any time after the court has ordered immediate service of an
2 order for withholding or after initial service of an order
3 for withholding pursuant to subsection (E), the obligee or
4 public office may serve the order for withholding upon any
5 payor of the obligor without further notice to the obligor.
6 The obligee or public office shall provide notice to the
7 payor, pursuant to paragraph (6) of subsection (I), of any
8 payments that have been made through previous withholding or
9 any other method.
10 (2) The Clerk of the Circuit Court shall, upon request,
11 provide the obligee or public office with specially certified
12 copies of the order for withholding or the notice of
13 delinquency or both whenever the Court has ordered immediate
14 service of an order for withholding or an affidavit has been
15 placed in the court file indicating that the preconditions
16 for service have been previously met. The obligee or public
17 office may then serve the order for withholding on the payor,
18 its superintendent, manager or other agent by regular or
19 certified mail or facsimile personal delivery. A proof of
20 service shall be filed with the Clerk of the Circuit Court.
21 (3) If a delinquency has accrued for any reason, the
22 obligee or public office may serve a notice of delinquency
23 upon the obligor pursuant to subsection (C). The obligor may
24 prevent the notice of delinquency from being served upon the
25 payor by utilizing the procedures set forth in subsection
26 (D). If no petition to stay service has been filed within the
27 required 20 day time period, the obligee or public office may
28 serve the notice of delinquency on the payor by utilizing the
29 procedures for service set forth in subsection (E).
30 (4) New service of an order for withholding is not
31 required in order to resume withholding of income in the case
32 of an obligor with respect to whom an order for withholding
33 was previously served on the payor if withholding of income
34 was terminated because of an interruption in the obligor's
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1 employment of less than 180 days.
2 (G) Duties of Payor.
3 (1) It shall be the duty of any payor who has been
4 served with a copy of the specially certified order for
5 withholding and any notice of delinquency to deduct and pay
6 over income as provided in this subsection. The payor shall
7 deduct the amount designated in the order for withholding, as
8 supplemented by the notice of delinquency and any notice
9 provided pursuant to paragraph (6) of subsection (I),
10 beginning no later than the next payment of income which is
11 payable to the obligor that occurs 14 days following the date
12 the order and any notice were mailed by certified mail or
13 placed for personal delivery. The payor may combine all
14 amounts withheld for the benefit of an obligee or public
15 office into a single payment and transmit the payment with a
16 listing of obligors from whom withholding has been effected.
17 The payor shall pay the amount withheld to the obligee or
18 public office within 10 calendar days of the date income is
19 paid to the obligor in accordance with the order for
20 withholding and any subsequent notification received from the
21 public office redirecting payments. If the payor knowingly
22 fails to pay any amount withheld to the obligee or public
23 office within 10 calendar days of the date income is paid to
24 the obligor, the payor shall pay a penalty of $100 for each
25 day that the withheld amount is not paid to the obligee or
26 public office after the period of 10 calendar days has
27 expired. The failure of a payor, on more than one occasion,
28 to pay amounts withheld to the obligee or public office
29 within 10 calendar days of the date income is paid to the
30 obligor creates a presumption that the payor knowingly failed
31 to pay the amounts. This penalty may be collected in a civil
32 action which may be brought against the payor in favor of the
33 obligee. A finding of a payor's nonperformance within the
34 time required under this Section must be documented by a
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1 certified mail return receipt showing the date the order for
2 withholding was served on the payor. For purposes of this
3 Section, a withheld amount shall be considered paid by a
4 payor on the date it is mailed by the payor, or on the date
5 an electronic funds transfer of the amount has been initiated
6 by the payor, or on the date delivery of the amount has been
7 initiated by the payor. For each deduction, the payor shall
8 provide the obligee or public office, at the time of
9 transmittal, with the date income was paid from which support
10 was withheld.
11 Upon receipt of an order requiring that a minor child be
12 named as a beneficiary of a health insurance plan available
13 through an employer or labor union or trade union, the
14 employer or labor union or trade union shall immediately
15 enroll the minor child as a beneficiary in the health
16 insurance plan designated by the court order. The employer
17 shall withhold any required premiums and pay over any amounts
18 so withheld and any additional amounts the employer pays to
19 the insurance carrier in a timely manner. The employer or
20 labor union or trade union shall mail to the obligee, within
21 15 days of enrollment or upon request, notice of the date of
22 coverage, information on the dependent coverage plan, and all
23 forms necessary to obtain reimbursement for covered health
24 expenses, such as would be made available to a new employee.
25 When an order for dependent coverage is in effect and the
26 insurance coverage is terminated or changed for any reason,
27 the employer or labor union or trade union shall notify the
28 obligee within 10 days of the termination or change date
29 along with notice of conversion privileges.
30 For withholding of income, the payor shall be entitled to
31 receive a fee not to exceed $5 per month to be taken from the
32 income to be paid to the obligor.
33 (2) Whenever the obligor is no longer receiving income
34 from the payor, the payor shall return a copy of the order
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1 for withholding to the obligee or public office and shall
2 provide information for the purpose of enforcing this
3 Section.
4 (3) Withholding of income under this Section shall be
5 made without regard to any prior or subsequent garnishments,
6 attachments, wage assignments, or any other claims of
7 creditors. Withholding of income under this Section shall
8 not be in excess of the maximum amounts permitted under the
9 federal Consumer Credit Protection Act. If the payor has been
10 served with more than one order for withholding pertaining to
11 the same obligor, the payor shall allocate income available
12 for withholding on a proportionate share basis, giving
13 priority to current support payments. If there is any income
14 available for withholding after withholding for all current
15 support obligations, the payor shall allocate the income to
16 past due support payments ordered in non-AFDC matters and
17 then to past due support payments ordered in AFDC matters,
18 both on a proportionate share basis. Payment as required by
19 the order for withholding shall be a complete defense by the
20 payor against any claims of the obligor or his creditors as
21 to the sum so paid.
22 (4) No payor shall discharge, discipline, refuse to hire
23 or otherwise penalize any obligor because of the duty to
24 withhold income.
25 (H) Petitions to Stay Service or to Modify, Suspend or
26 Terminate Orders for Withholding.
27 (1) When an obligor files a petition to stay service,
28 the court, after due notice to all parties, shall hear the
29 matter as soon as practicable and shall enter an order
30 granting or denying relief, amending the notice of
31 delinquency, amending the order for withholding, where
32 applicable, or otherwise resolving the matter. If the court
33 finds that a delinquency existed when the notice of
34 delinquency was served upon the obligor, in an amount of at
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1 least one month's support obligation, or that the obligor was
2 at least 30 days late in paying all or part of the order for
3 support, the court shall order immediate service of the order
4 for withholding. Where the court cannot promptly resolve any
5 dispute over the amount of the delinquency, the court may
6 order immediate service of the order for withholding as to
7 any undisputed amounts specified in an amended notice of
8 delinquency, and may continue the hearing on the disputed
9 amounts.
10 (2) At any time, an obligor, obligee, public office or
11 Clerk of the Circuit Court may petition the court to:
12 (a) modify, suspend or terminate the order for
13 withholding because of a modification, suspension or
14 termination of the underlying order for support; or
15 (b) modify the amount of income to be withheld to
16 reflect payment in full or in part of the delinquency or
17 arrearage by income withholding or otherwise; or
18 (c) suspend the order for withholding because of
19 inability to deliver income withheld to the obligee due
20 to the obligee's failure to provide a mailing address or
21 other means of delivery.
22 (3) The obligor, obligee or public office shall serve on
23 the payor, by certified mail or personal delivery, a copy of
24 any order entered pursuant to this subsection that affects
25 the duties of the payor.
26 (4) At any time, a public office or Clerk of the Circuit
27 Court may serve a notice on the payor to:
28 (a) cease withholding of income for payment of
29 current support for a child when the support obligation
30 for that child has automatically ceased under the order
31 for support through emancipation or otherwise; or
32 (b) cease withholding of income for payment of
33 delinquency or arrearage when the delinquency or
34 arrearage has been paid in full.
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1 (5) The notice provided for under paragraph (4) of this
2 subsection shall be served on the payor by ordinary mail, and
3 a copy shall be provided to the obligor and the obligee. A
4 copy of the notice shall be filed with the Clerk of the
5 Circuit Court.
6 (6) The order for withholding shall continue to be
7 binding upon the payor until service of any order of the
8 court or notice entered or provided for under this
9 subsection.
10 (I) Additional Duties.
11 (1) An obligee who is receiving income withholding
12 payments under this Section shall notify the payor, if the
13 obligee receives the payments directly from the payor, or the
14 public office or the Clerk of the Circuit Court, as
15 appropriate, of any change of address within 7 days of such
16 change.
17 (2) An obligee who is a recipient of public aid shall
18 send a copy of any notice of delinquency filed pursuant to
19 subsection (C) to the Bureau of Child Support of the Illinois
20 Department of Public Aid.
21 (3) Each obligor shall notify the obligee and the Clerk
22 of the Circuit Court of any change of address within 7 days.
23 (4) An obligor whose income is being withheld or who has
24 been served with a notice of delinquency pursuant to this
25 Section shall notify the obligee and the Clerk of the Circuit
26 Court of any new payor, within 7 days.
27 (5) When the Illinois Department of Public Aid is no
28 longer authorized to receive payments for the obligee, it
29 shall, within 7 days, notify the payor or, where appropriate,
30 the Clerk of the Circuit Court, to redirect income
31 withholding payments to the obligee.
32 (6) The obligee or public office shall provide notice to
33 the payor and Clerk of the Circuit Court of any other support
34 payment made, including but not limited to, a set-off under
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1 federal and State law or partial payment of the delinquency
2 or arrearage, or both.
3 (7) Any public office and Clerk of the Circuit Court
4 which collects, disburses or receives payments pursuant to
5 orders for withholding shall maintain complete, accurate, and
6 clear records of all payments and their disbursements.
7 Certified copies of payment records maintained by a public
8 office or Clerk of the Circuit Court shall, without further
9 proof, be admitted into evidence in any legal proceedings
10 under this Section.
11 (8) The Illinois Department of Public Aid shall design
12 suggested legal forms for proceeding under this Section and
13 shall make available to the courts such forms and
14 informational materials which describe the procedures and
15 remedies set forth herein for distribution to all parties in
16 support actions.
17 (9) At the time of transmitting each support payment,
18 the clerk of the circuit court shall provide the obligee or
19 public office, as appropriate, with any information furnished
20 by the payor as to the date income was paid from which such
21 support was withheld.
22 (J) Penalties.
23 (1) Where a payor wilfully fails to withhold or pay over
24 income pursuant to a properly served, specially certified
25 order for withholding and any notice of delinquency, or
26 wilfully discharges, disciplines, refuses to hire or
27 otherwise penalizes an obligor as prohibited by subsection
28 (G), or otherwise fails to comply with any duties imposed by
29 this Section, the obligee, public office or obligor, as
30 appropriate, may file a complaint with the court against the
31 payor. The clerk of the circuit court shall notify the
32 obligee or public office, as appropriate, and the obligor and
33 payor of the time and place of the hearing on the complaint.
34 The court shall resolve any factual dispute including, but
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1 not limited to, a denial that the payor is paying or has paid
2 income to the obligor. Upon a finding in favor of the
3 complaining party, the court:
4 (a) shall enter judgment and order the enforcement
5 thereof for the total amount that the payor wilfully
6 failed to withhold or pay over; and
7 (b) may order employment or reinstatement of or
8 restitution to the obligor, or both, where the obligor
9 has been discharged, disciplined, denied employment or
10 otherwise penalized by the payor and may impose a fine
11 upon the payor not to exceed $200.
12 (2) Any obligee, public office or obligor who wilfully
13 initiates a false proceeding under this Section or who
14 wilfully fails to comply with the requirements of this
15 Section shall be punished as in cases of contempt of court.
16 (K) Alternative Procedures for Entry and Service of an Order
17 for Withholding.
18 (1) Effective January 1, 1987, in any matter in which an
19 order for withholding has not been entered for any reason,
20 based upon the last order for support that has been entered,
21 and in which the obligor has become delinquent in payment of
22 an amount equal to at least one month's support obligation
23 pursuant to the last order for support or is at least 30 days
24 late in complying with all or part of the order for support,
25 the obligee or public office may prepare and serve an order
26 for withholding pursuant to the procedures set forth in this
27 subsection.
28 (2) The obligee or public office shall:
29 (a) prepare a proposed order for withholding for
30 immediate service as provided by paragraphs (1) and (3)
31 of subsection (B), except that the minimum 20%
32 delinquency payment shall be used;
33 (b) prepare a notice of delinquency as provided by
34 paragraphs (1) and (2) of subsection (C), except the
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1 notice shall state further that the order for withholding
2 has not been entered by the court and the conditions
3 under which the order will be entered; and
4 (c) serve the notice of delinquency and form
5 petition to stay service as provided by paragraph (3) of
6 subsection (C), together with the proposed order for
7 withholding, which shall be marked "COPY ONLY".
8 (3) After 20 days following service of the notice of
9 delinquency and proposed order for withholding, in lieu of
10 the provisions of subsection (E), the obligee or public
11 office shall file with the Clerk of the Circuit Court an
12 affidavit, with a copy of the notice of delinquency and
13 proposed order for withholding attached thereto, stating
14 that:
15 (a) the notice of delinquency and proposed order
16 for withholding have been served upon the obligor and the
17 date on which service was effected;
18 (b) the obligor has not filed a petition to stay
19 service within 20 days of service of such notice and
20 order; and
21 (c) the proposed order for withholding accurately
22 states the terms and amounts contained in the last order
23 for support.
24 (4) Upon the court's satisfaction that the procedures
25 set forth in this subsection have been met, it shall enter
26 the order for withholding.
27 (5) The Clerk shall then provide to the obligee or
28 public office a specially certified copy of the order for
29 withholding and the notice of delinquency indicating that the
30 preconditions for service have been met.
31 (6) The obligee or public office shall serve the
32 specially certified copies of the order for withholding and
33 the notice of delinquency on the payor, its superintendent,
34 manager or other agent by certified mail or personal
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1 delivery. A proof of service shall be filed with the Clerk
2 of the Circuit Court.
3 (7) If the obligor requests in writing that income
4 withholding become effective prior to becoming delinquent in
5 payment of an amount equal to one month's support obligation
6 pursuant to the last order for support, or prior to becoming
7 30 days late in paying all or part of the order for support,
8 the obligee or public office shall file an affidavit with the
9 Clerk of the circuit Court, with a proposed order for
10 withholding attached, stating that the proposed order
11 accurately states the terms and amounts contained in the last
12 order for support and the obligor's request for immediate
13 service. The provisions of paragraphs (4) through (6) of
14 this subsection shall apply, except that a notice of
15 delinquency shall not be required.
16 (8) All other provisions of this Section shall be
17 applicable with respect to the provisions of this subsection
18 (K), except that under paragraph (1) of subsection (H), the
19 court may also amend the proposed order for withholding to
20 conform to the last order for support.
21 (9) Nothing in this subsection shall be construed as
22 limiting the requirements of paragraph (1) of subsection (B)
23 with respect to the entry of a separate order for withholding
24 upon entry of any order for support.
25 (L) Remedies in Addition to Other Laws.
26 (1) The rights, remedies, duties and penalties created
27 by this Section are in addition to and not in substitution
28 for any other rights, remedies, duties and penalties created
29 by any other law.
30 (2) Nothing in this Section shall be construed as
31 invalidating any assignment of wages or benefits executed
32 prior to July 1, 1985.
33 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
34 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
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1 (Text of Section after amendment by P.A.89-507)
2 Sec. 20. Withholding of Income to Secure Payment of
3 Support.
4 (A) Definitions.
5 (1) "Order for support" means any order of the court
6 which provides for periodic payment of funds for the support
7 of a child, whether temporary or final, and includes any such
8 order which provides for:
9 (a) modification or resumption of, or payment of
10 arrearage accrued under, a previously existing order;
11 (b) reimbursement of support;
12 (c) payment or reimbursement of the expense of
13 pregnancy and delivery; or
14 (d) enrollment in a health insurance plan that is
15 available to the obligor through an employer or labor
16 union or trade union.
17 (2) "Arrearage" means the total amount of unpaid support
18 obligations.
19 (3) "Delinquency" means any payment under an order for
20 support which becomes due and remains unpaid after an order
21 for withholding has been entered under subsection (B) or, for
22 purposes of subsection (K), after the last order for support
23 was entered for which no order for withholding was entered.
24 (4) "Income" means any form of periodic payment to an
25 individual, regardless of source, including, but not limited
26 to: wages, salary, commission, compensation as an independent
27 contractor, workers' compensation, disability, annuity and
28 retirement benefits, lottery prize awards, insurance
29 proceeds, vacation pay, bonuses, profit-sharing payments and
30 any other payments, made by any person, private entity,
31 federal or state government, any unit of local government,
32 school district or any entity created by Public Act; however,
33 "income" excludes:
34 (a) any amounts required by law to be withheld,
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1 other than creditor claims, including, but not limited
2 to, federal, State and local taxes, Social Security and
3 other retirement and disability contributions;
4 (b) union dues;
5 (c) any amounts exempted by the federal Consumer
6 Credit Protection Act;
7 (d) public assistance payments; and
8 (e) unemployment insurance benefits except as
9 provided by law.
10 Any other State or local laws which limit or exempt
11 income or the amount or percentage of income that can be
12 withheld shall not apply.
13 (5) "Obligor" means the individual who owes a duty to
14 make payments under an order for support.
15 (6) "Obligee" means the individual to whom a duty of
16 support is owed or the individual's legal representative.
17 (7) "Payor" means any payor of income to an obligor.
18 (8) "Public office" means any elected official or any
19 State or local agency which is or may become responsible by
20 law for enforcement of, or which is or may become authorized
21 to enforce, an order for support, including, but not limited
22 to: the Attorney General, the Illinois Department of Public
23 Aid, the Illinois Department of Human Services, the Illinois
24 Department of Children and Family Services, and the various
25 State's Attorneys, Clerks of the Circuit Court and
26 supervisors of general assistance.
27 (9) "Premium" means the dollar amount for which the
28 obligor is liable to his employer or labor union or trade
29 union and which must be paid to enroll or maintain a child in
30 a health insurance plan that is available to the obligor
31 through an employer or labor union or trade union.
32 (B) Entry of an Order for Withholding.
33 (1) Upon entry of any order for support on or after July
34 1, 1985, the court shall enter a separate order for
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1 withholding which shall not take effect unless the obligor
2 becomes delinquent in paying the order for support or the
3 obligor requests an earlier effective date; except that the
4 court may require the order for withholding to take effect
5 immediately.
6 On or after January 1, 1989, the court shall require the
7 order for withholding to take effect immediately, unless a
8 written agreement is reached between and signed by both
9 parties providing for an alternative arrangement, approved
10 and entered into the record by the court, which insures
11 payment of support. In that case, the court shall enter the
12 order for withholding which will not take effect unless the
13 obligor becomes delinquent in paying the order for support.
14 Upon entry of any order of support on or after September
15 11, 1989, if the obligor is not a United States citizen, the
16 obligor shall provide to the court the obligor's alien
17 registration number, passport number, and home country's
18 social security or national health number, if applicable; the
19 court shall make the information part of the record in the
20 case.
21 (2) An order for withholding shall be entered upon
22 petition by the obligee or public office where an order for
23 withholding has not been previously entered.
24 (3) The order for withholding shall:
25 (a) direct any payor to withhold a dollar amount
26 equal to the order for support; and
27 (b) direct any payor to withhold an additional
28 dollar amount, not less than 20% of the order for
29 support, until payment in full of any delinquency stated
30 in the notice of delinquency provided for in subsection
31 (C) or (F) of this Section; and
32 (c) direct any payor or labor union or trade union
33 to enroll a child as a beneficiary of a health insurance
34 plan and withhold or cause to be withheld, if applicable,
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1 any required premiums; and
2 (d) state the rights, remedies and duties of the
3 obligor under this Section; and
4 (e) include the obligor's Social Security Number,
5 which the obligor shall disclose to the court; and
6 (f) include the date that withholding for current
7 support terminates, which shall be the date of
8 termination of the current support obligation set forth
9 in the order for support.
10 (4) At the time the order for withholding is entered,
11 the Clerk of the Circuit Court shall provide a copy of the
12 order for withholding and the order for support to the
13 obligor and shall make copies available to the obligee and
14 public office. Any copy of the order for withholding
15 furnished to the parties under this subsection shall be
16 stamped "Not Valid".
17 (5) The order for withholding shall remain in effect for
18 as long as the order for support upon which it is based.
19 (6) The failure of an order for withholding to state an
20 arrearage is not conclusive of the issue of whether an
21 arrearage is owing.
22 (7) Notwithstanding the provisions of this subsection,
23 if the court finds at the time of any hearing that arrearage
24 has accrued in an amount equal to at least one month's
25 support obligation or that the obligor is 30 days late in
26 paying all or part of the order for support, the court shall
27 order immediate service of the order for withholding upon the
28 payor.
29 (8) Where the court has not required that the order for
30 withholding take effect immediately, the obligee or public
31 office may prepare and serve a notice for immediate
32 withholding upon the obligor by ordinary mail addressed to
33 the obligor at his or her last known address. The notice
34 shall state that the following circumstances have occurred:
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1 (a) The parties' written agreement providing an
2 alternative arrangement to immediate withholding under
3 paragraph (1) of this subsection no longer provides for
4 timely payment of all support due; or
5 (b) The obligor has not made timely payments in
6 that the obligor has been at least 7 days late in paying
7 all or part of the order for support any of the last 6
8 consecutive dates payments were due prior to the date of
9 the notice for immediate withholding.
10 The notice for immediate withholding shall clearly state
11 that a specially certified copy of the order for withholding
12 will be sent to the payor, unless the obligor files a
13 petition contesting immediate withholding within 20 days
14 after service of the notice; however, the grounds for the
15 petition shall be limited to a dispute concerning whether the
16 circumstances stated in the notice have occurred or the
17 identity of the obligor. It shall not be grounds for the
18 petition that the obligor has made all payments due by the
19 date of the petition.
20 If the obligor files a petition contesting immediate
21 withholding within the 20-day period required under this
22 paragraph, the Clerk of the Circuit Court shall notify the
23 obligor and the obligee or public office, as appropriate, of
24 the time and place of the hearing on the petition. Upon
25 hearing the petition, the court shall enter an order granting
26 or denying relief. It shall not be grounds for granting the
27 obligor's petition that he or she has made all payments due
28 by the date of hearing. If the court denies the obligor's
29 petition, it shall order immediate service of the order for
30 withholding and direct the clerk to provide a specially
31 certified copy of the order for withholding to the obligee or
32 public office indicating that the requirements for immediate
33 withholding under this paragraph have been met.
34 If the obligor does not file a petition contesting
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1 immediate withholding within the 20-day period, the obligee
2 or public office shall file with the Clerk of the Circuit
3 Court an affidavit, with a copy of the notice for immediate
4 withholding attached thereto, stating that the notice was
5 duly served and the date on which service was effected, and
6 that the obligor has not filed a petition contesting
7 immediate withholding. The clerk shall then provide to the
8 obligee or public office a specially certified copy of the
9 order for withholding indicating that the requirements for
10 immediate withholding under this paragraph have been met.
11 Upon receipt of a specially certified copy of the order
12 for withholding, the obligee or public office may serve the
13 order on the payor, its superintendent, manager or other
14 agent, by certified mail or personal delivery. A proof of
15 service shall be filed with the Clerk of the Circuit Court.
16 (C) Notice of Delinquency.
17 (1) Whenever an obligor becomes delinquent in payment of
18 an amount equal to at least one month's support obligation
19 pursuant to the order for support or is at least 30 days late
20 in complying with all or part of the order for support,
21 whichever occurs first, the obligee or public office may
22 prepare and serve a verified notice of delinquency, together
23 with a form petition to stay service, pursuant to paragraph
24 (3) of this subsection.
25 (2) The notice of delinquency shall recite the terms of
26 the order for support and contain a computation of the period
27 and total amount of the delinquency, as of the date of the
28 notice. The notice shall clearly state that it will be sent
29 to the payor, together with a specially certified copy of the
30 order for withholding, except as provided in subsection (F),
31 unless the obligor files a petition to stay service in
32 accordance with paragraph (1) of subsection (D).
33 (3) The notice of delinquency shall be served by
34 ordinary mail addressed to the obligor at his or her last
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1 known address.
2 (4) The obligor may execute a written waiver of the
3 provisions of paragraphs (1) through (3) of this subsection
4 and request immediate service upon the payor.
5 (D) Procedures to Avoid Income Withholding.
6 (1) Except as provided in subsection (F), the obligor
7 may prevent an order for withholding from being served by
8 filing a petition to stay service with the Clerk of the
9 Circuit Court, within 20 days after service of the notice of
10 delinquency; however, the grounds for the petition to stay
11 service shall be limited to a dispute concerning: (a) the
12 amount of current support or the existence or amount of the
13 delinquency; or (b) the identity of the obligor.
14 The Clerk of the Circuit Court shall notify the obligor
15 and the obligee or public office, as appropriate, of the time
16 and place of the hearing on the petition to stay service. The
17 court shall hold such hearing pursuant to the provisions of
18 subsection (H).
19 (2) Except as provided in subsection (F), filing of a
20 petition to stay service, within the 20-day period required
21 under this subsection, shall prohibit the obligee or public
22 office from serving the order for withholding on any payor of
23 the obligor.
24 (E) Initial Service of Order for Withholding.
25 (1) Except as provided in subsection (F), in order to
26 serve an order for withholding upon a payor, an obligee or
27 public office shall follow the procedures set forth in this
28 subsection. After 20 days following service of the notice of
29 delinquency, the obligee or public office shall file with the
30 Clerk of the Circuit Court an affidavit, with the copy of the
31 notice of delinquency attached thereto, stating:
32 (a) that the notice of delinquency has been duly
33 served and the date on which service was effected; and
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1 (b) that the obligor has not filed a petition to
2 stay service, or in the alternative
3 (c) that the obligor has waived the provisions of
4 subparagraphs (a) and (b) of this paragraph (1) in
5 accordance with subsection (C)(4).
6 (2) Upon request of the obligee or public office, the
7 Clerk of the Circuit Court shall: (a) make available any
8 record of payment; and (b) determine that the file contains a
9 copy of the affidavit described in paragraph (1). The Clerk
10 shall then provide to the obligee or public office a
11 specially certified copy of the order for withholding and the
12 notice of delinquency indicating that the preconditions for
13 service have been met.
14 (3) The obligee or public office may then serve the
15 notice of delinquency and order for withholding on the payor,
16 its superintendent, manager or other agent, by regular or
17 certified mail or facsimile personal delivery. A proof of
18 service shall be filed with the Clerk of the Circuit Court.
19 (F) Subsequent Service of Order for Withholding.
20 (1) Notwithstanding the provisions of this Section, at
21 any time after the court has ordered immediate service of an
22 order for withholding or after initial service of an order
23 for withholding pursuant to subsection (E), the obligee or
24 public office may serve the order for withholding upon any
25 payor of the obligor without further notice to the obligor.
26 The obligee or public office shall provide notice to the
27 payor, pursuant to paragraph (6) of subsection (I), of any
28 payments that have been made through previous withholding or
29 any other method.
30 (2) The Clerk of the Circuit Court shall, upon request,
31 provide the obligee or public office with specially certified
32 copies of the order for withholding or the notice of
33 delinquency or both whenever the Court has ordered immediate
34 service of an order for withholding or an affidavit has been
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1 placed in the court file indicating that the preconditions
2 for service have been previously met. The obligee or public
3 office may then serve the order for withholding on the payor,
4 its superintendent, manager or other agent by regular or
5 certified mail or facsimile personal delivery. A proof of
6 service shall be filed with the Clerk of the Circuit Court.
7 (3) If a delinquency has accrued for any reason, the
8 obligee or public office may serve a notice of delinquency
9 upon the obligor pursuant to subsection (C). The obligor may
10 prevent the notice of delinquency from being served upon the
11 payor by utilizing the procedures set forth in subsection
12 (D). If no petition to stay service has been filed within the
13 required 20 day time period, the obligee or public office may
14 serve the notice of delinquency on the payor by utilizing the
15 procedures for service set forth in subsection (E).
16 (4) New service of an order for withholding is not
17 required in order to resume withholding of income in the case
18 of an obligor with respect to whom an order for withholding
19 was previously served on the payor if withholding of income
20 was terminated because of an interruption in the obligor's
21 employment of less than 180 days.
22 (G) Duties of Payor.
23 (1) It shall be the duty of any payor who has been
24 served with a copy of the specially certified order for
25 withholding and any notice of delinquency to deduct and pay
26 over income as provided in this subsection. The payor shall
27 deduct the amount designated in the order for withholding, as
28 supplemented by the notice of delinquency and any notice
29 provided pursuant to paragraph (6) of subsection (I),
30 beginning no later than the next payment of income which is
31 payable to the obligor that occurs 14 days following the date
32 the order and any notice were mailed by certified mail or
33 placed for personal delivery. The payor may combine all
34 amounts withheld for the benefit of an obligee or public
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1 office into a single payment and transmit the payment with a
2 listing of obligors from whom withholding has been effected.
3 The payor shall pay the amount withheld to the obligee or
4 public office within 10 calendar days of the date income is
5 paid to the obligor in accordance with the order for
6 withholding and any subsequent notification received from the
7 public office redirecting payments. If the payor knowingly
8 fails to pay any amount withheld to the obligee or public
9 office within 10 calendar days of the date income is paid to
10 the obligor, the payor shall pay a penalty of $100 for each
11 day that the withheld amount is not paid to the obligee or
12 public office after the period of 10 calendar days has
13 expired. The failure of a payor, on more than one occasion,
14 to pay amounts withheld to the obligee or public office
15 within 10 calendar days of the date income is paid to the
16 obligor creates a presumption that the payor knowingly failed
17 to pay the amounts. This penalty may be collected in a civil
18 action which may be brought against the payor in favor of the
19 obligee. A finding of a payor's nonperformance within the
20 time required under this Section must be documented by a
21 certified mail return receipt showing the date the order for
22 withholding was served on the payor. For purposes of this
23 Section, a withheld amount shall be considered paid by a
24 payor on the date it is mailed by the payor, or on the date
25 an electronic funds transfer of the amount has been initiated
26 by the payor, or on the date delivery of the amount has been
27 initiated by the payor. For each deduction, the payor shall
28 provide the obligee or public office, at the time of
29 transmittal, with the date income was paid from which support
30 was withheld.
31 Upon receipt of an order requiring that a minor child be
32 named as a beneficiary of a health insurance plan available
33 through an employer or labor union or trade union, the
34 employer or labor union or trade union shall immediately
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1 enroll the minor child as a beneficiary in the health
2 insurance plan designated by the court order. The employer
3 shall withhold any required premiums and pay over any amounts
4 so withheld and any additional amounts the employer pays to
5 the insurance carrier in a timely manner. The employer or
6 labor union or trade union shall mail to the obligee, within
7 15 days of enrollment or upon request, notice of the date of
8 coverage, information on the dependent coverage plan, and all
9 forms necessary to obtain reimbursement for covered health
10 expenses, such as would be made available to a new employee.
11 When an order for dependent coverage is in effect and the
12 insurance coverage is terminated or changed for any reason,
13 the employer or labor union or trade union shall notify the
14 obligee within 10 days of the termination or change date
15 along with notice of conversion privileges.
16 For withholding of income, the payor shall be entitled to
17 receive a fee not to exceed $5 per month to be taken from the
18 income to be paid to the obligor.
19 (2) Whenever the obligor is no longer receiving income
20 from the payor, the payor shall return a copy of the order
21 for withholding to the obligee or public office and shall
22 provide information for the purpose of enforcing this
23 Section.
24 (3) Withholding of income under this Section shall be
25 made without regard to any prior or subsequent garnishments,
26 attachments, wage assignments, or any other claims of
27 creditors. Withholding of income under this Section shall
28 not be in excess of the maximum amounts permitted under the
29 federal Consumer Credit Protection Act. If the payor has been
30 served with more than one order for withholding pertaining to
31 the same obligor, the payor shall allocate income available
32 for withholding on a proportionate share basis, giving
33 priority to current support payments. If there is any income
34 available for withholding after withholding for all current
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1 support obligations, the payor shall allocate the income to
2 past due support payments ordered in non-AFDC matters and
3 then to past due support payments ordered in AFDC matters,
4 both on a proportionate share basis. Payment as required by
5 the order for withholding shall be a complete defense by the
6 payor against any claims of the obligor or his creditors as
7 to the sum so paid.
8 (4) No payor shall discharge, discipline, refuse to hire
9 or otherwise penalize any obligor because of the duty to
10 withhold income.
11 (H) Petitions to Stay Service or to Modify, Suspend or
12 Terminate Orders for Withholding.
13 (1) When an obligor files a petition to stay service,
14 the court, after due notice to all parties, shall hear the
15 matter as soon as practicable and shall enter an order
16 granting or denying relief, amending the notice of
17 delinquency, amending the order for withholding, where
18 applicable, or otherwise resolving the matter. If the court
19 finds that a delinquency existed when the notice of
20 delinquency was served upon the obligor, in an amount of at
21 least one month's support obligation, or that the obligor was
22 at least 30 days late in paying all or part of the order for
23 support, the court shall order immediate service of the order
24 for withholding. Where the court cannot promptly resolve any
25 dispute over the amount of the delinquency, the court may
26 order immediate service of the order for withholding as to
27 any undisputed amounts specified in an amended notice of
28 delinquency, and may continue the hearing on the disputed
29 amounts.
30 (2) At any time, an obligor, obligee, public office or
31 Clerk of the Circuit Court may petition the court to:
32 (a) modify, suspend or terminate the order for
33 withholding because of a modification, suspension or
34 termination of the underlying order for support; or
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1 (b) modify the amount of income to be withheld to
2 reflect payment in full or in part of the delinquency or
3 arrearage by income withholding or otherwise; or
4 (c) suspend the order for withholding because of
5 inability to deliver income withheld to the obligee due
6 to the obligee's failure to provide a mailing address or
7 other means of delivery.
8 (3) The obligor, obligee or public office shall serve on
9 the payor, by certified mail or personal delivery, a copy of
10 any order entered pursuant to this subsection that affects
11 the duties of the payor.
12 (4) At any time, a public office or Clerk of the Circuit
13 Court may serve a notice on the payor to:
14 (a) cease withholding of income for payment of
15 current support for a child when the support obligation
16 for that child has automatically ceased under the order
17 for support through emancipation or otherwise; or
18 (b) cease withholding of income for payment of
19 delinquency or arrearage when the delinquency or
20 arrearage has been paid in full.
21 (5) The notice provided for under paragraph (4) of this
22 subsection shall be served on the payor by ordinary mail, and
23 a copy shall be provided to the obligor and the obligee. A
24 copy of the notice shall be filed with the Clerk of the
25 Circuit Court.
26 (6) The order for withholding shall continue to be
27 binding upon the payor until service of any order of the
28 court or notice entered or provided for under this
29 subsection.
30 (I) Additional Duties.
31 (1) An obligee who is receiving income withholding
32 payments under this Section shall notify the payor, if the
33 obligee receives the payments directly from the payor, or the
34 public office or the Clerk of the Circuit Court, as
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1 appropriate, of any change of address within 7 days of such
2 change.
3 (2) An obligee who is a recipient of public aid shall
4 send a copy of any notice of delinquency filed pursuant to
5 subsection (C) to the Bureau of Child Support of the Illinois
6 Department of Public Aid.
7 (3) Each obligor shall notify the obligee and the Clerk
8 of the Circuit Court of any change of address within 7 days.
9 (4) An obligor whose income is being withheld or who has
10 been served with a notice of delinquency pursuant to this
11 Section shall notify the obligee and the Clerk of the Circuit
12 Court of any new payor, within 7 days.
13 (5) When the Illinois Department of Public Aid is no
14 longer authorized to receive payments for the obligee, it
15 shall, within 7 days, notify the payor or, where appropriate,
16 the Clerk of the Circuit Court, to redirect income
17 withholding payments to the obligee.
18 (6) The obligee or public office shall provide notice to
19 the payor and Clerk of the Circuit Court of any other support
20 payment made, including but not limited to, a set-off under
21 federal and State law or partial payment of the delinquency
22 or arrearage, or both.
23 (7) Any public office and Clerk of the Circuit Court
24 which collects, disburses or receives payments pursuant to
25 orders for withholding shall maintain complete, accurate, and
26 clear records of all payments and their disbursements.
27 Certified copies of payment records maintained by a public
28 office or Clerk of the Circuit Court shall, without further
29 proof, be admitted into evidence in any legal proceedings
30 under this Section.
31 (8) The Illinois Department of Public Aid shall design
32 suggested legal forms for proceeding under this Section and
33 shall make available to the courts such forms and
34 informational materials which describe the procedures and
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1 remedies set forth herein for distribution to all parties in
2 support actions.
3 (9) At the time of transmitting each support payment,
4 the clerk of the circuit court shall provide the obligee or
5 public office, as appropriate, with any information furnished
6 by the payor as to the date income was paid from which such
7 support was withheld.
8 (J) Penalties.
9 (1) Where a payor wilfully fails to withhold or pay over
10 income pursuant to a properly served, specially certified
11 order for withholding and any notice of delinquency, or
12 wilfully discharges, disciplines, refuses to hire or
13 otherwise penalizes an obligor as prohibited by subsection
14 (G), or otherwise fails to comply with any duties imposed by
15 this Section, the obligee, public office or obligor, as
16 appropriate, may file a complaint with the court against the
17 payor. The clerk of the circuit court shall notify the
18 obligee or public office, as appropriate, and the obligor and
19 payor of the time and place of the hearing on the complaint.
20 The court shall resolve any factual dispute including, but
21 not limited to, a denial that the payor is paying or has paid
22 income to the obligor. Upon a finding in favor of the
23 complaining party, the court:
24 (a) shall enter judgment and order the enforcement
25 thereof for the total amount that the payor wilfully
26 failed to withhold or pay over; and
27 (b) may order employment or reinstatement of or
28 restitution to the obligor, or both, where the obligor
29 has been discharged, disciplined, denied employment or
30 otherwise penalized by the payor and may impose a fine
31 upon the payor not to exceed $200.
32 (2) Any obligee, public office or obligor who wilfully
33 initiates a false proceeding under this Section or who
34 wilfully fails to comply with the requirements of this
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1 Section shall be punished as in cases of contempt of court.
2 (K) Alternative Procedures for Entry and Service of an Order
3 for Withholding.
4 (1) Effective January 1, 1987, in any matter in which an
5 order for withholding has not been entered for any reason,
6 based upon the last order for support that has been entered,
7 and in which the obligor has become delinquent in payment of
8 an amount equal to at least one month's support obligation
9 pursuant to the last order for support or is at least 30 days
10 late in complying with all or part of the order for support,
11 the obligee or public office may prepare and serve an order
12 for withholding pursuant to the procedures set forth in this
13 subsection.
14 (2) The obligee or public office shall:
15 (a) prepare a proposed order for withholding for
16 immediate service as provided by paragraphs (1) and (3)
17 of subsection (B), except that the minimum 20%
18 delinquency payment shall be used;
19 (b) prepare a notice of delinquency as provided by
20 paragraphs (1) and (2) of subsection (C), except the
21 notice shall state further that the order for withholding
22 has not been entered by the court and the conditions
23 under which the order will be entered; and
24 (c) serve the notice of delinquency and form
25 petition to stay service as provided by paragraph (3) of
26 subsection (C), together with the proposed order for
27 withholding, which shall be marked "COPY ONLY".
28 (3) After 20 days following service of the notice of
29 delinquency and proposed order for withholding, in lieu of
30 the provisions of subsection (E), the obligee or public
31 office shall file with the Clerk of the Circuit Court an
32 affidavit, with a copy of the notice of delinquency and
33 proposed order for withholding attached thereto, stating
34 that:
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1 (a) the notice of delinquency and proposed order
2 for withholding have been served upon the obligor and the
3 date on which service was effected;
4 (b) the obligor has not filed a petition to stay
5 service within 20 days of service of such notice and
6 order; and
7 (c) the proposed order for withholding accurately
8 states the terms and amounts contained in the last order
9 for support.
10 (4) Upon the court's satisfaction that the procedures
11 set forth in this subsection have been met, it shall enter
12 the order for withholding.
13 (5) The Clerk shall then provide to the obligee or
14 public office a specially certified copy of the order for
15 withholding and the notice of delinquency indicating that the
16 preconditions for service have been met.
17 (6) The obligee or public office shall serve the
18 specially certified copies of the order for withholding and
19 the notice of delinquency on the payor, its superintendent,
20 manager or other agent by certified mail or personal
21 delivery. A proof of service shall be filed with the Clerk
22 of the Circuit Court.
23 (7) If the obligor requests in writing that income
24 withholding become effective prior to becoming delinquent in
25 payment of an amount equal to one month's support obligation
26 pursuant to the last order for support, or prior to becoming
27 30 days late in paying all or part of the order for support,
28 the obligee or public office shall file an affidavit with the
29 Clerk of the circuit Court, with a proposed order for
30 withholding attached, stating that the proposed order
31 accurately states the terms and amounts contained in the last
32 order for support and the obligor's request for immediate
33 service. The provisions of paragraphs (4) through (6) of
34 this subsection shall apply, except that a notice of
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1 delinquency shall not be required.
2 (8) All other provisions of this Section shall be
3 applicable with respect to the provisions of this subsection
4 (K), except that under paragraph (1) of subsection (H), the
5 court may also amend the proposed order for withholding to
6 conform to the last order for support.
7 (9) Nothing in this subsection shall be construed as
8 limiting the requirements of paragraph (1) of subsection (B)
9 with respect to the entry of a separate order for withholding
10 upon entry of any order for support.
11 (L) Remedies in Addition to Other Laws.
12 (1) The rights, remedies, duties and penalties created
13 by this Section are in addition to and not in substitution
14 for any other rights, remedies, duties and penalties created
15 by any other law.
16 (2) Nothing in this Section shall be construed as
17 invalidating any assignment of wages or benefits executed
18 prior to July 1, 1985.
19 (Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
20 eff. 12-2-94; 89-507, eff. 7-1-97.)
21 Section 95. No acceleration or delay. Where this Act
22 makes changes in a statute that is represented in this Act by
23 text that is not yet or no longer in effect (for example, a
24 Section represented by multiple versions), the use of that
25 text does not accelerate or delay the taking effect of (i)
26 the changes made by this Act or (ii) provisions derived from
27 any other Public Act.
28 Section 99. Effective date. This Act takes effect upon
29 becoming law.