State of Illinois
92nd General Assembly
Legislation

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92_HB2298

 
                                               LRB9205094ARsb

 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  5.   The  Illinois  Marriage  and Dissolution of
 5    Marriage Act is amended by changing Section 505 as follows:

 6        (750 ILCS 5/505) (from Ch. 40, par. 505)
 7        Sec. 505.  Child support; contempt; penalties.
 8        (a)  In a proceeding for dissolution of  marriage,  legal
 9    separation,   declaration   of   invalidity  of  marriage,  a
10    proceeding for child support  following  dissolution  of  the
11    marriage  by  a court which lacked personal jurisdiction over
12    the  absent  spouse,  a  proceeding  for  modification  of  a
13    previous order for child support under Section  510  of  this
14    Act, or any proceeding authorized under Section 501 or 601 of
15    this  Act, the court may order either or both parents owing a
16    duty of support to a child of the marriage to pay  an  amount
17    reasonable  and  necessary for his support, without regard to
18    marital misconduct. The duty of  support   owed  to  a  minor
19    child  includes  the obligation to provide for the reasonable
20    and necessary physical, mental and emotional health needs  of
21    the child.
22             (1)  The Court shall determine the minimum amount of
23        support by using the following guidelines:
24          Number of Children       Percent of Supporting Party's
25                                             Net Income
26                  1                             20%
27                  2                             25%
28                  3                             32%
29                  4                             40%
30                  5                             45%
31              6 or more                         50%
 
                            -2-                LRB9205094ARsb
 1             (2)  The  above  guidelines shall be applied in each
 2        case unless the court makes a finding that application of
 3        the guidelines would be inappropriate, after  considering
 4        the  best  interests  of  the  child in light of evidence
 5        including but not limited to one or more of the following
 6        relevant factors:
 7                  (a)  the financial resources and needs  of  the
 8             child;
 9                  (b)  the  financial  resources and needs of the
10             custodial parent;
11                  (c)  the standard of  living  the  child  would
12             have enjoyed had the marriage not been dissolved;
13                  (d)  the  physical  and  emotional condition of
14             the child, and his educational needs; and
15                  (e)  the financial resources and needs  of  the
16             non-custodial parent.
17             If  the  court  deviates  from  the  guidelines, the
18        court's finding shall state the amount  of  support  that
19        would   have  been  required  under  the  guidelines,  if
20        determinable.  The court  shall  include  the  reason  or
21        reasons for the variance from the guidelines.
22             (3)  "Net  income"  is  defined  as the total of all
23        income from all sources, minus the following deductions:
24                  (a)  Federal income  tax  (properly  calculated
25             withholding or estimated payments);
26                  (b)  State   income  tax  (properly  calculated
27             withholding or estimated payments);
28                  (c)  Social Security (FICA payments);
29                  (d)  Mandatory     retirement     contributions
30             required by law or as a condition of employment;
31                  (e)  Union dues;
32                  (f)  Dependent          and          individual
33             health/hospitalization insurance premiums;
34                  (g)  Prior   obligations    of    support    or
 
                            -3-                LRB9205094ARsb
 1             maintenance actually paid pursuant to a court order;
 2                  (h)  Expenditures  for  repayment of debts that
 3             represent reasonable and necessary expenses for  the
 4             production of income, medical expenditures necessary
 5             to  preserve life or health, reasonable expenditures
 6             for the benefit of the child and the  other  parent,
 7             exclusive  of  gifts.   The  court  shall reduce net
 8             income in determining the minimum amount of  support
 9             to be ordered only for the period that such payments
10             are   due   and  shall  enter  an  order  containing
11             provisions for its self-executing modification  upon
12             termination of such payment period.
13             (4)  In  cases  where  the  court order provides for
14        health/hospitalization  insurance  coverage  pursuant  to
15        Section  505.2  of  this  Act,  the  premiums  for   that
16        insurance,  or that portion of the premiums for which the
17        supporting party is responsible in the case of  insurance
18        provided  through  an  employer's  health  insurance plan
19        where the employer pays a portion of the premiums,  shall
20        be  subtracted from net income in determining the minimum
21        amount of support to be ordered.
22             (4.5)  In a proceeding for child  support  following
23        dissolution  of  the  marriage  by  a  court  that lacked
24        personal jurisdiction over  the  absent  spouse,  and  in
25        which  the  court is requiring payment of support for the
26        period before the date an order for  current  support  is
27        entered,  there  is  a  rebuttable  presumption  that the
28        supporting party's net income for the  prior  period  was
29        the  same  as his or her net income at the time the order
30        for current support is entered.
31             (5)  If the net income cannot be determined  because
32        of  default  or  any  other reason, the court shall order
33        support  in  an  amount  considered  reasonable  in   the
34        particular  case.   The  final  order  in all cases shall
 
                            -4-                LRB9205094ARsb
 1        state the support level in dollar  amounts.  However,  if
 2        the  court  finds that the child support amount cannot be
 3        expressed exclusively as a dollar amount because all or a
 4        portion of the payor's net  income  is  uncertain  as  to
 5        source, time of payment, or amount, the court may order a
 6        percentage  amount  of  support in addition to a specific
 7        dollar amount and enter  such  other  orders  as  may  be
 8        necessary  to  determine  and enforce, on a timely basis,
 9        the applicable support ordered.
10             (6)  If (i) the non-custodial  parent  was  properly
11        served   with   a  request  for  discovery  of  financial
12        information  relating  to  the   non-custodial   parent's
13        ability  to provide child support, (ii) the non-custodial
14        parent failed to comply with the request, despite  having
15        been  ordered  to  do  so  by  the  court,  and (iii) the
16        non-custodial parent is not present  at  the  hearing  to
17        determine  support despite having received proper notice,
18        then any relevant financial  information  concerning  the
19        non-custodial  parent's  ability to provide child support
20        that was obtained pursuant to subpoena and proper  notice
21        shall  be  admitted  into  evidence  without  the need to
22        establish any further foundation for its admission.
23        (a-5)  In an action to enforce an order for support based
24    on the respondent's  failure  to  make  support  payments  as
25    required  by  the  order,  notice  of proceedings to hold the
26    respondent in contempt for that failure may be served on  the
27    respondent  by  personal service or by regular mail addressed
28    to the respondent's last known  address.    The  respondent's
29    last  known  address  may  be  determined from records of the
30    clerk of the court, from the Federal Case Registry  of  Child
31    Support Orders, or by any other reasonable means.
32        (b)  Failure  of either parent to comply with an order to
33    pay  support  shall  be  punishable  as  in  other  cases  of
34    contempt.  In addition to other penalties provided by law the
 
                            -5-                LRB9205094ARsb
 1    Court may, after finding the parent guilty of contempt, order
 2    that the parent be:
 3             (1)  placed on probation  with  such  conditions  of
 4        probation as the Court deems advisable;
 5             (2)  sentenced to periodic imprisonment for a period
 6        not to exceed 6 months; provided, however, that the Court
 7        may  permit the parent to be released for periods of time
 8        during the day or night to:
 9                  (A)  work; or
10                  (B)  conduct a business or other  self-employed
11             occupation.
12        The  Court  may  further  order  any  part  or all of the
13    earnings  of  a  parent  during  a   sentence   of   periodic
14    imprisonment paid to the Clerk of the Circuit Court or to the
15    parent  having  custody  or to the guardian having custody of
16    the minor children of the sentenced parent for the support of
17    said minor children until further order of the Court.
18        If there is a unity of interest and ownership  sufficient
19    to  render  no  financial  separation between a non-custodial
20    parent and another person or persons or business entity,  the
21    court  may  pierce the ownership veil of the person, persons,
22    or business entity to discover assets  of  the  non-custodial
23    parent  held  in  the  name of that person, those persons, or
24    that  business  entity.    The  following  circumstances  are
25    sufficient to authorize a court to  order  discovery  of  the
26    assets of a person, persons, or business entity and to compel
27    the  application  of  any discovered assets toward payment on
28    the judgment for support:
29             (1)  the  non-custodial  parent  and   the   person,
30        persons, or business entity maintain records together.
31             (2)  the   non-custodial   parent  and  the  person,
32        persons, or business entity  fail  to  maintain  an  arms
33        length relationship between themselves with regard to any
34        assets.
 
                            -6-                LRB9205094ARsb
 1             (3)  the  non-custodial  parent  transfers assets to
 2        the person, persons, or business entity with  the  intent
 3        to perpetrate a fraud on the custodial parent.
 4        With  respect to assets which are real property, no order
 5    entered under this paragraph shall affect the rights of  bona
 6    fide  purchasers,  mortgagees,  judgment  creditors, or other
 7    lien holders who  acquire their  interests  in  the  property
 8    prior  to  the  time  a notice of lis pendens pursuant to the
 9    Code of Civil Procedure or a copy of the order is  placed  of
10    record  in the office of the recorder of deeds for the county
11    in which the real property is located.
12        The court may also order in cases where the parent is  90
13    days  or  more  delinquent  in payment of support or has been
14    adjudicated  in  arrears  in  an  amount  equal  to  90  days
15    obligation  or  more,  that  the  parent's  Illinois  driving
16    privileges be suspended until the court determines  that  the
17    parent  is in compliance with the order of support. The court
18    may also order that the parent be issued a  family  financial
19    responsibility   driving  permit  that  would  allow  limited
20    driving privileges for employment  and  medical  purposes  in
21    accordance with Section 7-702.1 of the Illinois Vehicle Code.
22    The  clerk  of  the  circuit  court  shall  certify the order
23    suspending the driving privileges of the parent  or  granting
24    the  issuance  of  a  family financial responsibility driving
25    permit to the Secretary of State on forms prescribed  by  the
26    Secretary.  Upon  receipt of the authenticated documents, the
27    Secretary  of  State  shall  suspend  the  parent's   driving
28    privileges  until  further  order  of the court and shall, if
29    ordered by the court, subject to the  provisions  of  Section
30    7-702.1   of  the  Illinois  Vehicle  Code,  issue  a  family
31    financial responsibility driving permit to the parent.
32        In addition to the penalties or punishment  that  may  be
33    imposed   under   this  Section,  any  person  whose  conduct
34    constitutes a violation of  Section  15  of  the  Non-Support
 
                            -7-                LRB9205094ARsb
 1    Punishment Act may be prosecuted under that Act, and a person
 2    convicted  under that Act may be sentenced in accordance with
 3    that Act.  The sentence may include but need not  be  limited
 4    to  a  requirement  that the person perform community service
 5    under Section 50  of  that  Act  or  participate  in  a  work
 6    alternative  program  under Section 50 of that Act.  A person
 7    may not be required to  participate  in  a  work  alternative
 8    program  under  Section  50  of  that  Act  if  the person is
 9    currently participating in a work program pursuant to Section
10    505.1 of this Act.
11        A  support  obligation,  or  any  portion  of  a  support
12    obligation, which becomes due and remains unpaid for 30  days
13    or more shall accrue interest at the rate of 9% per annum.
14        (c)  A  one-time  charge  of  20%  is  imposable upon the
15    amount of past-due child support owed on July 1,  1988  which
16    has  accrued under a support order entered by the court.  The
17    charge shall be imposed in accordance with the provisions  of
18    Section  10-21  of  the Illinois Public Aid Code and shall be
19    enforced by the court upon petition.
20        (d)  Any new or existing support  order  entered  by  the
21    court  under  this  Section shall be deemed to be a series of
22    judgments  against  the  person  obligated  to  pay   support
23    thereunder,  each  such  judgment to be in the amount of each
24    payment or installment of support and each such  judgment  to
25    be deemed entered as of the date the corresponding payment or
26    installment becomes due under the terms of the support order.
27    Each  such  judgment  shall  have  the full force, effect and
28    attributes of any other judgment of this State, including the
29    ability to be enforced. A lien arises  by  operation  of  law
30    against  the  real  and personal property of the noncustodial
31    parent for each installment of overdue support  owed  by  the
32    noncustodial parent.
33        (e)  When  child  support is to be paid through the clerk
34    of the court in a county of 1,000,000  inhabitants  or  less,
 
                            -8-                LRB9205094ARsb
 1    the  order  shall  direct the obligor to pay to the clerk, in
 2    addition to the child support payments, all fees  imposed  by
 3    the  county  board  under  paragraph (3) of subsection (u) of
 4    Section 27.1 of the Clerks of Courts  Act.   Unless  paid  in
 5    cash  or pursuant to an order for withholding, the payment of
 6    the fee shall be by a separate instrument  from  the  support
 7    payment and shall be made to the order of the Clerk.
 8        (f)  All  orders  for  support, when entered or modified,
 9    shall include a provision requiring the obligor to notify the
10    court and, in cases in which a party is receiving  child  and
11    spouse  services  under  Article X of the Illinois Public Aid
12    Code, the Illinois Department of Public Aid, within  7  days,
13    (i)  of  the  name  and  address  of  any new employer of the
14    obligor, (ii)  whether  the  obligor  has  access  to  health
15    insurance  coverage  through  the  employer  or  other  group
16    coverage and, if so, the policy name and number and the names
17    of  persons  covered  under  the policy, and (iii) of any new
18    residential or mailing address or  telephone  number  of  the
19    non-custodial  parent.  In any subsequent action to enforce a
20    support order, upon a  sufficient  showing  that  a  diligent
21    effort  has  been  made  to  ascertain  the  location  of the
22    non-custodial parent, service  of  process  or  provision  of
23    notice  necessary  in  the case may be made at the last known
24    address of the non-custodial parent in any  manner  expressly
25    provided  by  the  Code of Civil Procedure or this Act, which
26    service shall be sufficient for purposes of due process.
27        (g)  An order for support shall include a date  on  which
28    the  current  support obligation terminates.  The termination
29    date shall be no earlier than the date  on  which  the  child
30    covered  by  the  order  will  attain  the age of majority or
31    graduates from high school, as long as reasonable progress is
32    being made toward graduating, whichever occurs later,  or  is
33    otherwise emancipated. The order for support shall state that
34    the termination date does not apply to any arrearage that may
 
                            -9-                LRB9205094ARsb
 1    remain unpaid on that date.  Nothing in this subsection shall
 2    be construed to prevent the court from modifying the order.
 3        (h)  An  order entered under this Section shall include a
 4    provision requiring the obligor to report to the obligee  and
 5    to  the  clerk  of court within 10 days each time the obligor
 6    obtains  new  employment,  and  each   time   the   obligor's
 7    employment is terminated for any reason.  The report shall be
 8    in  writing and shall, in the case of new employment, include
 9    the name and address of the new employer.  Failure to  report
10    new  employment  or the termination of current employment, if
11    coupled with nonpayment of support for a period in excess  of
12    60  days,  is  indirect  criminal  contempt.  For any obligor
13    arrested for failure to report new employment bond  shall  be
14    set  in the amount of the child support that should have been
15    paid during the period of unreported  employment.   An  order
16    entered  under  this  Section  shall also include a provision
17    requiring the obligor and  obligee  parents  to  advise  each
18    other  of  a  change in residence within 5 days of the change
19    except when the court finds that  the  physical,  mental,  or
20    emotional  health  of  a  party  or that of a minor child, or
21    both, would be seriously  endangered  by  disclosure  of  the
22    party's address.
23    (Source:  P.A.  90-18,  eff.  7-1-97;  90-476,  eff.  1-1-98;
24    90-539,  eff.  6-1-98;  90-655,  eff.  7-30-98;  90-733, eff.
25    8-11-98; 91-113, eff. 7-15-99; 91-397, eff.  1-1-00;  91-655,
26    eff. 6-1-00; 91-767, eff. 6-9-00; revised 6-28-00.)

27        Section  99.  Effective date.  This Act takes effect upon
28    becoming law.

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