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Public Act 099-0763 | ||||
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Marriage and Dissolution of | ||||
Marriage Act is amended by changing Sections 452, 501, 501.1, | ||||
502, 503, 504, 505, 508, 513, 600, 602.9, 602.10, 602.11, | ||||
604.10, 606.5, 607.5, and 610.5 and by adding Section 607.6 as | ||||
follows:
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(750 ILCS 5/452)
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Sec. 452. Petition. The parties to a dissolution proceeding | ||||
may file a
joint petition for simplified dissolution if they | ||||
certify that all of the
following conditions exist when the | ||||
proceeding is commenced:
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(a) Neither party is dependent on the other party for | ||||
support or each
party is willing to waive the right to | ||||
support; and the parties understand
that consultation with | ||||
attorneys may help them determine eligibility for
spousal | ||||
support.
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(b) Either party has met the residency or military | ||||
presence requirement of Section 401 of this
Act.
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(c) The requirements of Section 401 regarding | ||||
residence or military presence and proof of irreconcilable | ||||
differences have been met.
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(d) No children were born of the relationship of the | ||
parties or
adopted by the parties during the marriage, and | ||
the wife, to her knowledge,
is not pregnant by the husband.
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(e) The duration of the marriage does not exceed 8 | ||
years.
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(f) Neither party has any interest in real property or | ||
retirement benefits unless the retirement benefits are | ||
exclusively held in individual retirement accounts and the | ||
combined value of the accounts is less than $10,000.
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(g) The parties waive any rights to maintenance.
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(h) The total fair market value of all marital | ||
property, after
deducting all encumbrances, is less than | ||
$50,000, the
combined gross annualized income from all | ||
sources is less than
$60,000, and neither party has a gross | ||
annualized income from all sources
in excess of $30,000.
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(i) The parties have disclosed to each other all assets | ||
and liabilities and their tax
returns for all years of the | ||
marriage.
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(j) The parties have executed a written agreement | ||
dividing all assets
in excess of $100 in value and | ||
allocating responsibility for debts and
liabilities | ||
between the parties.
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(Source: P.A. 99-90, eff. 1-1-16 .)
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(750 ILCS 5/501) (from Ch. 40, par. 501)
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Sec. 501. Temporary Relief. In all proceedings under this |
Act,
temporary relief shall be as follows:
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(a) Either party may petition or move for:
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(1) temporary maintenance or temporary support of a | ||
child of the
marriage entitled to support, accompanied by | ||
an affidavit as to the
factual basis for the relief | ||
requested. One form of financial affidavit, as determined | ||
by the Supreme Court, shall be used statewide. The | ||
financial affidavit shall be supported by documentary | ||
evidence including, but not limited to, income tax returns, | ||
pay stubs, and banking statements. Unless the court | ||
otherwise directs, any affidavit or supporting documentary | ||
evidence submitted pursuant
to this paragraph shall not be | ||
made
part of the public record of the proceedings but shall | ||
be available to
the court or an appellate court in which | ||
the proceedings are subject to
review, to the parties, | ||
their
attorneys, and such other persons as the court
may | ||
direct. Upon motion of a party, a court may hold a hearing | ||
to determine whether and why there is a disparity between a | ||
party's sworn affidavit and the supporting documentation. | ||
If a party intentionally or recklessly files an inaccurate | ||
or misleading financial affidavit, the court shall impose | ||
significant penalties and sanctions including, but not | ||
limited to, costs and attorney's fees;
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(2) a temporary restraining order or preliminary | ||
injunction, accompanied
by affidavit showing a
factual | ||
basis for any of the following relief:
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(i) restraining any person from transferring, | ||
encumbering,
concealing or otherwise disposing of any | ||
property except in the usual
course of business or for | ||
the necessities of life, and, if so
restrained, | ||
requiring him to notify the moving party and his | ||
attorney of
any proposed extraordinary expenditures | ||
made after the order is issued; however, an order need | ||
not include an exception for transferring, | ||
encumbering,
or otherwise disposing of property in the | ||
usual course of business or for the necessities of life | ||
if the court enters appropriate orders that enable the | ||
parties to pay their necessary
personal and business | ||
expenses including, but not limited to, appropriate | ||
professionals to assist the court pursuant to | ||
subsection (l) of Section 503 to administer the payment | ||
and accounting of such living and business expenses;
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(ii) enjoining a party from removing a child from | ||
the jurisdiction
of the court for more than 14 days ;
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(iii) enjoining a party from striking or | ||
interfering with the
personal liberty of the other | ||
party or of any child; or
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(iv) providing other injunctive relief proper in | ||
the circumstances;
or
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(3) other appropriate temporary relief including, in | ||
the discretion of the court, ordering the purchase or sale | ||
of assets and requiring that a party or parties borrow |
funds in the appropriate circumstances.
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Issues concerning temporary maintenance or temporary | ||
support of a child entitled to support shall be dealt with on a | ||
summary basis based on allocated parenting time, financial | ||
affidavits, tax returns, pay stubs, banking statements, and | ||
other
relevant documentation, except an evidentiary hearing | ||
may be held upon a showing of good cause. If a party | ||
intentionally or recklessly files an inaccurate or misleading | ||
financial affidavit, the court shall impose significant | ||
penalties and sanctions including, but not limited to, costs | ||
and attorney's fees resulting from the improper | ||
representation. | ||
(b) The court may issue a temporary restraining order | ||
without
requiring notice to the other party only if it finds, | ||
on the basis of
the moving affidavit or other evidence, that | ||
irreparable injury will
result to the moving party if no order | ||
is issued until the time for
responding has elapsed.
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(c) A response hereunder may be filed within 21 days after | ||
service
of notice of motion or at the time specified in the | ||
temporary
restraining order.
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(c-1) As used in this subsection (c-1), "interim attorney's | ||
fees and
costs" means attorney's fees and costs
assessed
from | ||
time to time while a case is pending, in favor of the | ||
petitioning party's
current counsel, for reasonable fees and | ||
costs either already incurred or to be
incurred, and "interim | ||
award" means an award of interim attorney's fees and
costs. |
Interim awards shall be governed by the following:
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(1) Except for good cause shown, a proceeding for (or | ||
relating to) interim
attorney's fees and costs in a | ||
pre-judgment dissolution proceeding shall be | ||
nonevidentiary and summary in nature. All hearings for or | ||
relating to interim attorney's fees and costs under this | ||
subsection shall be scheduled expeditiously by the court. | ||
When a party files a petition for interim attorney's fees | ||
and
costs supported by one or more
affidavits that | ||
delineate relevant factors, the court (or a hearing | ||
officer)
shall assess an interim award after affording the | ||
opposing party a reasonable
opportunity to file a | ||
responsive pleading. A responsive pleading shall set out
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the amount of each retainer or other payment or payments, | ||
or both, previously
paid to the responding party's counsel | ||
by or on behalf of the responding party. A responsive | ||
pleading shall include costs incurred, and shall indicate | ||
whether the costs are paid or unpaid.
In assessing an
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interim award, the court shall consider all relevant | ||
factors, as presented,
that appear reasonable and | ||
necessary, including to the extent applicable:
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(A) the income and property of each party, | ||
including alleged marital
property within the sole | ||
control of one party and alleged non-marital property
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within access to a party;
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(B) the needs of each party;
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(C) the realistic earning capacity of each party;
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(D) any impairment to present earning capacity of | ||
either party,
including
age and physical and emotional | ||
health;
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(E) the standard of living established during the | ||
marriage;
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(F) the degree of complexity of the issues, | ||
including allocation of parental responsibility, | ||
valuation
or division (or both) of closely held | ||
businesses, and tax planning, as well as
reasonable | ||
needs for expert investigations or expert witnesses, | ||
or both;
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(G) each party's access to relevant information;
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(H) the amount of the payment or payments made or | ||
reasonably expected to
be made to the attorney for the | ||
other party; and
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(I) any other factor that the court expressly finds | ||
to be just and
equitable.
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(2) Any assessment of an interim award (including one | ||
pursuant to an
agreed
order) shall be without prejudice to | ||
any final allocation and without prejudice
as to any claim | ||
or right of either party or any counsel of record at the | ||
time
of the award. Any such claim or right may be presented | ||
by the appropriate
party or counsel at a hearing on | ||
contribution under subsection (j) of Section
503 or a | ||
hearing on counsel's fees under subsection (c) of Section |
508. Unless
otherwise ordered by the court at the final | ||
hearing between the parties or in a
hearing under | ||
subsection (j) of Section 503 or subsection (c) of
Section | ||
508, interim awards, as well as the aggregate of all other | ||
payments
by each party
to
counsel and related payments to | ||
third parties, shall be deemed to have been
advances from | ||
the parties' marital estate. Any portion of any interim | ||
award
constituting an overpayment shall be remitted back to | ||
the appropriate party or
parties, or, alternatively, to | ||
successor counsel, as the court determines and
directs, | ||
after notice in a form designated by the Supreme Court. An | ||
order for the award of interim attorney's fees shall be a | ||
standardized form order and labeled "Interim Fee Award | ||
Order".
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(3) In any proceeding under this subsection (c-1), the | ||
court (or hearing
officer) shall assess an interim award | ||
against an opposing party in an
amount necessary to enable | ||
the petitioning party to participate adequately in
the | ||
litigation, upon findings that the party from whom | ||
attorney's fees and
costs are sought has the financial | ||
ability to pay reasonable amounts and that
the party | ||
seeking attorney's fees and costs lacks sufficient access | ||
to assets
or income to pay reasonable amounts. In | ||
determining an award, the
court shall consider whether | ||
adequate participation in the litigation requires
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expenditure of more fees and costs for a party that is not |
in control of assets
or relevant information. Except for | ||
good cause shown, an interim award shall
not be less than | ||
payments made or reasonably expected to be made to the | ||
counsel
for the other party. If the court finds that both | ||
parties
lack financial ability or access to assets or | ||
income for reasonable attorney's
fees and costs, the court | ||
(or hearing officer) shall enter an order that
allocates | ||
available funds for each party's counsel, including | ||
retainers or
interim payments, or both, previously paid, in | ||
a manner that achieves
substantial parity between the | ||
parties.
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(4) The changes to this Section 501 made by this | ||
amendatory Act of 1996
apply to cases pending on or after | ||
June 1, 1997, except as otherwise provided
in Section 508.
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(c-2) Allocation of use of marital residence. Where
there | ||
is on file a verified complaint or verified petition seeking
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temporary eviction from the marital residence, the court may, | ||
during the
pendency of the proceeding, only in cases where the | ||
physical or mental well-being of either spouse or
his or her | ||
children is jeopardized by occupancy of the marital residence | ||
by both
spouses, and only upon due notice and full hearing, | ||
unless waived by the
court on good cause shown, enter orders | ||
granting the exclusive possession of the marital residence to | ||
either spouse,
by eviction from, or restoration of, the marital | ||
residence, until the final
determination of the cause pursuant | ||
to the factors listed in Section 602.7 of this Act. No such |
order shall in any manner affect any
estate in homestead | ||
property of either party. In entering orders under this | ||
subsection (c-2), the court shall balance hardships to the | ||
parties. | ||
(d) A temporary order entered under this Section:
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(1) does not prejudice the rights of the parties or the | ||
child which
are to be adjudicated at subsequent hearings in | ||
the proceeding;
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(2) may be revoked or modified before final judgment, | ||
on a showing
by affidavit and upon hearing; and
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(3) terminates when the final judgment is entered or | ||
when the
petition for dissolution of marriage or legal | ||
separation or declaration
of invalidity of marriage is | ||
dismissed.
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(e) The fees or costs of mediation shall
be borne by the | ||
parties and may be assessed by the court as it deems equitable | ||
without prejudice and are subject to reallocation at the | ||
conclusion of the case. | ||
(Source: P.A. 99-90, eff. 1-1-16 .)
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(750 ILCS 5/501.1) (from Ch. 40, par. 501.1)
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Sec. 501.1. Dissolution action stay.
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(a) Upon service of a summons and petition or praecipe | ||
filed
under the Illinois Marriage and Dissolution of Marriage | ||
Act or upon
the filing of the respondent's appearance in the | ||
proceeding, whichever first
occurs, a dissolution action stay |
shall be in effect against both parties, without bond or | ||
further notice, until a
final judgement is entered, the | ||
proceeding is dismissed, or until further
order of the court:
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(1) restraining both parties from physically abusing, | ||
harassing,
intimidating, striking, or interfering with the | ||
personal liberty of the
other party or the minor children | ||
of either party; and
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(2) restraining both parties from concealing a minor | ||
child of either party from the child's other parent | ||
removing any minor child of either
party from the State of | ||
Illinois or from concealing any such child from the
other | ||
party, without the consent of the other party or an order | ||
of the court .
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The restraint provided in this subsection (a) does not | ||
operate to make
unavailable any of the remedies provided in the | ||
Illinois Domestic Violence Act
of 1986.
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(b) (Blank).
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(c) (Blank).
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(d) (Blank).
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(e) In a proceeding filed under this Act, the summons shall | ||
provide
notice of the entry of the automatic dissolution action | ||
stay in a form as
required by applicable rules.
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(Source: P.A. 99-90, eff. 1-1-16 .)
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(750 ILCS 5/502) (from Ch. 40, par. 502)
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Sec. 502. Agreement. |
(a) To promote amicable settlement
of disputes between
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parties to a marriage attendant upon the dissolution of their | ||
marriage,
the parties may enter
into an agreement containing | ||
provisions for
disposition of any
property owned by either of | ||
them, maintenance of either of them, support,
parental | ||
responsibility allocation
of their children, and support of | ||
their children as provided in Sections Section 513 and 513.5 | ||
after
the children attain majority. Any agreement pursuant to | ||
this Section must be in writing, except for good cause shown | ||
with the approval of the court, before proceeding to an oral | ||
prove up.
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(b) The terms of the agreement, except those providing for | ||
the support and parental responsibility allocation of | ||
children, are binding upon the court unless it finds, after
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considering the economic circumstances of the parties and any | ||
other relevant evidence
produced by the parties, on their own | ||
motion or on request of the court,
that the
agreement is | ||
unconscionable. The terms of the agreement incorporated into | ||
the judgment are binding if there is any conflict between the | ||
terms of the agreement and any testimony made at an uncontested | ||
prove-up hearing on the grounds or the substance of the | ||
agreement.
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(c) If the court finds the agreement unconscionable,
it may | ||
request the parties to submit a revised agreement
or upon | ||
hearing, may make orders
for the disposition of property, | ||
maintenance, child support and other matters.
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(d) Unless the agreement provides to the contrary, its
| ||
terms shall be set forth
in the judgment, and the parties shall | ||
be ordered to perform under such
terms, or if the agreement
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provides that its terms shall not be set forth in the judgment, | ||
the judgment shall
identify the agreement and state that the | ||
court has approved its terms.
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(e) Terms of the agreement set forth in the judgment are | ||
enforceable by
all remedies available for enforcement
of a | ||
judgment, including contempt, and are enforceable as contract | ||
terms.
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(f) Child support, support of children as provided in | ||
Sections Section 513 and 513.5 after
the children attain | ||
majority, and parental responsibility allocation of children | ||
may be modified upon a showing of a substantial change in | ||
circumstances. The parties may provide that maintenance is | ||
non-modifiable in amount, duration, or both. If the parties do | ||
not provide that maintenance is non-modifiable in amount, | ||
duration, or both, then those terms are modifiable upon a | ||
substantial change of circumstances. Property provisions of an | ||
agreement are never modifiable. The judgment may expressly | ||
preclude or limit modification of other terms set forth in the
| ||
judgment if the agreement so provides. Otherwise, terms
of an | ||
agreement
set forth in the judgment are automatically modified | ||
by modification of the judgment.
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(Source: P.A. 99-90, eff. 1-1-16 .)
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(750 ILCS 5/503) (from Ch. 40, par. 503)
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Sec. 503. Disposition of property and debts.
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(a) For purposes of this Act, "marital property" means all | ||
property, including debts and other obligations, acquired
by | ||
either spouse subsequent to the marriage, except the following, | ||
which is
known as "non-marital property":
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(1) property acquired by gift, legacy or descent or | ||
property acquired in exchange for such property;
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(2) property acquired in exchange for property | ||
acquired before the
marriage;
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(3) property acquired by a spouse after a judgment of | ||
legal separation;
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(4) property excluded by valid agreement of the | ||
parties, including
a premarital agreement or a postnuptial | ||
agreement;
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(5) any judgment or property obtained by judgment | ||
awarded to a spouse
from the other spouse except, however, | ||
when a spouse is required to sue the other spouse in order | ||
to obtain insurance coverage or otherwise recover from a | ||
third party and the recovery is directly related to amounts | ||
advanced by the marital estate, the judgment shall be | ||
considered marital property;
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(6) property acquired before the marriage, except as it | ||
relates to retirement plans that may have both marital and | ||
non-marital characteristics;
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(6.5) all property acquired by a spouse by
the sole use |
of non-marital property as collateral for a loan that then | ||
is used to acquire property
during the marriage; to the | ||
extent that the marital estate repays any portion of the | ||
loan, it shall be considered a contribution from the | ||
marital estate to the non-marital estate subject to | ||
reimbursement; | ||
(7) the increase in value of non-marital property, | ||
irrespective of whether the
increase results from a | ||
contribution of marital property, non-marital property,
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the personal effort of a spouse, or otherwise, subject to | ||
the right of
reimbursement provided in subsection (c) of | ||
this Section; and
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(8) income from property acquired by a method listed in | ||
paragraphs (1)
through (7) of this subsection if the income | ||
is not attributable to the
personal effort of a spouse.
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Property acquired prior to a marriage that would otherwise | ||
be non-marital property shall not be deemed to be marital | ||
property solely because the property was acquired in | ||
contemplation of marriage. | ||
The court shall make specific factual findings as to its | ||
classification of assets as marital or non-marital property, | ||
values, and other factual findings supporting its property | ||
award. | ||
(b)(1) For purposes of distribution of property, all | ||
property acquired by either spouse after the marriage and | ||
before a
judgment of dissolution of marriage or declaration of |
invalidity of marriage is presumed marital property. This | ||
presumption includes non-marital property transferred into | ||
some form of co-ownership
between the spouses, regardless of | ||
whether
title is held individually or by the spouses in some | ||
form of co-ownership such
as joint tenancy, tenancy in common, | ||
tenancy by the entirety, or community
property. The A spouse | ||
may overcome the presumption of marital property is overcome by | ||
showing through clear and convincing evidence that
the property | ||
was acquired by a method listed in subsection (a) of this | ||
Section or was done for estate or tax planning purposes or for | ||
other reasons that establish that a transfer between spouses | ||
the transfer was not intended to be a gift.
| ||
(2) For purposes of distribution of property pursuant to | ||
this Section,
all pension benefits (including pension benefits | ||
under the Illinois Pension
Code, defined benefit plans, defined | ||
contribution plans and accounts, individual retirement | ||
accounts, and non-qualified plans) acquired by or participated | ||
in by either spouse after the marriage and before a judgment of
| ||
dissolution of marriage or legal separation or declaration of | ||
invalidity of the marriage are
presumed to be marital property. | ||
A spouse may overcome the presumption that these pension | ||
benefits are marital property
by showing through clear and | ||
convincing evidence that the pension benefits were acquired by | ||
a method
listed in subsection (a) of this Section. The right to | ||
a division of pension
benefits in just proportions under this | ||
Section is enforceable under Section
1-119 of the Illinois |
Pension Code.
| ||
The value of pension benefits in a retirement system | ||
subject to the Illinois
Pension Code shall be determined in | ||
accordance with the valuation procedures
established by the | ||
retirement system.
| ||
The recognition of pension benefits as marital property and | ||
the division of
those benefits pursuant to a Qualified Illinois | ||
Domestic Relations Order shall
not be deemed to be a | ||
diminishment, alienation, or impairment of those
benefits. The | ||
division of pension benefits is an allocation of property in
| ||
which each spouse has a species of common ownership.
| ||
(3) For purposes of distribution of property under this | ||
Section, all stock
options and restricted stock or similar form | ||
of benefit granted to either spouse after the marriage and | ||
before a judgment of
dissolution of marriage or legal | ||
separation or declaration of invalidity of marriage, whether
| ||
vested or non-vested or whether their value is ascertainable, | ||
are presumed to
be marital property. This presumption of | ||
marital property is overcome by a
showing that the stock | ||
options or restricted stock or similar form of benefit were | ||
acquired by a method listed in subsection
(a) of this Section. | ||
The court shall allocate stock options and restricted stock or | ||
similar form of benefit between the
parties at the time of the | ||
judgment of dissolution of marriage or declaration
of | ||
invalidity of marriage recognizing that the value of the stock | ||
options and restricted stock or similar form of benefit may
not |
be then determinable and that the actual division of the | ||
options may not
occur until a future date. In making the | ||
allocation between the parties, the
court shall consider, in | ||
addition to the factors set forth in subsection (d) of
this | ||
Section, the following:
| ||
(i) All circumstances underlying the grant of the stock | ||
option and restricted stock or similar form of benefit | ||
including
but not limited to the vesting schedule, whether | ||
the grant was for past, present, or future efforts, whether | ||
the grant is designed to promote future performance or | ||
employment,
or any combination thereof.
| ||
(ii) The length of time from the grant of the option to | ||
the time the
option is exercisable.
| ||
(b-5) As to any existing policy of life insurance insuring | ||
the life of either spouse, or any interest in such policy, that | ||
constitutes marital property, whether whole life, term life, | ||
group term life, universal life, or other form of life
| ||
insurance policy, and whether or not the value is | ||
ascertainable, the court shall allocate ownership, death | ||
benefits or the
right to assign death benefits, and the | ||
obligation for premium payments, if any, equitably between the | ||
parties at the
time of the judgment for dissolution or | ||
declaration of invalidity of marriage. | ||
(c) Commingled marital and non-marital property shall be | ||
treated in
the following manner, unless otherwise agreed by the | ||
spouses:
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(1)(A) If marital and non-marital property are | ||
commingled by one estate being contributed into the other, | ||
the following shall apply: | ||
(i) If the contributed property loses its | ||
identity, the contributed property transmutes to the | ||
estate receiving the property, subject to the | ||
provisions of paragraph (2) of this subsection (c). | ||
(ii) If the contributed property retains its | ||
identity, it does not transmute and remains property of | ||
the contributing estate. | ||
(B) If marital and non-marital property are commingled | ||
into newly acquired property resulting in a loss of | ||
identity of the contributing estates, the commingled | ||
property shall be deemed transmuted to marital property, | ||
subject to the provisions of paragraph (2) of this | ||
subsection (c). | ||
(2)(A) When one estate of property makes a contribution | ||
to another estate of property, the contributing estate | ||
shall be reimbursed from the estate receiving the | ||
contribution notwithstanding any transmutation. No such | ||
reimbursement shall be made with respect to a contribution | ||
that is not traceable by clear and convincing evidence or | ||
that was a gift. The court may provide for reimbursement | ||
out of the marital property to be divided or by imposing a | ||
lien against the non-marital property that received the | ||
contribution. |
(B) When a spouse contributes personal effort to | ||
non-marital property, it shall be deemed a contribution | ||
from the marital estate, which shall receive reimbursement | ||
for the efforts if the efforts are significant and result | ||
in substantial appreciation to the non-marital property | ||
except that if the marital estate reasonably has been | ||
compensated for his or her efforts, it shall not be deemed | ||
a contribution to the marital estate and there shall be no | ||
reimbursement to the marital estate. The court may provide | ||
for reimbursement out of the marital property to be divided | ||
or by imposing a lien against the non-marital property | ||
which received the contribution.
| ||
(d) In a proceeding for dissolution of marriage or | ||
declaration of invalidity
of marriage, or in a proceeding for | ||
disposition of property following
dissolution of marriage by a | ||
court that lacked personal jurisdiction over the
absent spouse | ||
or lacked jurisdiction to dispose of the property, the court
| ||
shall assign each spouse's non-marital property to that spouse. | ||
It also shall
divide the marital property without regard to | ||
marital misconduct in just
proportions considering all | ||
relevant factors, including:
| ||
(1) each party's contribution to the acquisition, | ||
preservation, or
increase or decrease in value of the | ||
marital or non-marital property, including
(i) any | ||
decrease attributable to an advance from the parties' | ||
marital estate under subsection (c-1)(2) of Section 501; |
(ii) the contribution of a spouse as a homemaker or to the | ||
family unit; and (iii) whether the contribution is after | ||
the commencement of a proceeding for dissolution of | ||
marriage or declaration of invalidity of marriage;
| ||
(2) the dissipation by each party of the marital | ||
property, provided that a party's claim of dissipation is | ||
subject to the following conditions:
| ||
(i) a notice of intent to claim dissipation shall | ||
be given no later than 60 days
before trial or 30 days | ||
after discovery closes, whichever is later; | ||
(ii) the notice of intent to claim dissipation | ||
shall contain, at a minimum, a date or period of time | ||
during which the marriage began undergoing an | ||
irretrievable breakdown, an identification of the | ||
property dissipated, and a date or period of time | ||
during which the dissipation occurred; | ||
(iii) a certificate or service of the notice of | ||
intent to claim dissipation shall be filed with the | ||
clerk of the court and be served pursuant to applicable | ||
rules; | ||
(iv) no dissipation shall be deemed to have | ||
occurred prior to 3 years after the party claiming | ||
dissipation knew or should have known of the | ||
dissipation, but in no event prior to 5 years before | ||
the filing of the petition for dissolution of marriage; | ||
(3) the value of the property assigned to each spouse;
|
(4) the duration of the marriage;
| ||
(5) the relevant economic circumstances of each spouse | ||
when the division
of property is to become effective, | ||
including the desirability of awarding
the family home, or | ||
the right to live therein for reasonable periods, to the
| ||
spouse having the primary residence of the children;
| ||
(6) any obligations and rights arising from a prior | ||
marriage
of either party;
| ||
(7) any prenuptial or postnuptial agreement of the | ||
parties;
| ||
(8) the age, health, station, occupation, amount and | ||
sources of income,
vocational skills, employability, | ||
estate, liabilities, and needs of each of the
parties;
| ||
(9) the custodial provisions for any children;
| ||
(10) whether the apportionment is in lieu of or in | ||
addition to
maintenance;
| ||
(11) the reasonable opportunity of each spouse for | ||
future acquisition
of capital assets and income; and
| ||
(12) the tax consequences of the property division upon | ||
the
respective economic circumstances of the parties.
| ||
(e) Each spouse has a species of common ownership in the | ||
marital property
which vests at the time dissolution | ||
proceedings are commenced and continues
only during the | ||
pendency of the action. Any such interest in marital property
| ||
shall not encumber that property so as to restrict its | ||
transfer, assignment
or conveyance by the title holder unless |
such title holder is specifically
enjoined from making such | ||
transfer, assignment or conveyance.
| ||
(f) In a proceeding for dissolution of marriage or | ||
declaration of
invalidity of marriage or in a proceeding for | ||
disposition of property
following dissolution of marriage by a | ||
court that lacked personal
jurisdiction over the absent spouse | ||
or lacked jurisdiction to dispose of
the property, the court, | ||
in determining the value of the marital and
non-marital | ||
property for purposes of dividing the property, has the | ||
discretion to use the date of the trial or such other date as | ||
agreed upon by the parties, or ordered by the court within its | ||
discretion, for purposes of determining the value of assets or | ||
property.
| ||
(g) The court if necessary to protect and promote the best | ||
interests of the
children may set aside a portion of the | ||
jointly or separately held
estates of the parties in a separate | ||
fund or trust for the support,
maintenance, education, physical | ||
and mental health, and general welfare of any minor, dependent,
| ||
or incompetent child of the parties. In making a determination | ||
under this
subsection, the court may consider, among other | ||
things, the conviction of a
party of any of the offenses set | ||
forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | ||
12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, | ||
12-15, or 12-16, or Section 12-3.05 except for subdivision | ||
(a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal | ||
Code of 2012 if the
victim is a
child of one or both of the |
parties, and there is a need for, and cost of,
care, healing | ||
and counseling for the child who is the victim of the crime.
| ||
(h) Unless specifically directed by a reviewing court, or | ||
upon good
cause shown, the court shall not on remand consider | ||
any increase or
decrease in the value of any "marital" or | ||
"non-marital" property occurring
since the assessment of such | ||
property at the original trial or hearing, but
shall use only | ||
that assessment made at the original trial or hearing.
| ||
(i) The court may make such judgments affecting the marital | ||
property
as may be just and may enforce such judgments by | ||
ordering a sale of marital
property, with proceeds therefrom to | ||
be applied as determined by the court.
| ||
(j) After proofs have closed in the final hearing on all | ||
other issues
between the parties (or in conjunction with the | ||
final hearing, if all parties
so stipulate) and before judgment | ||
is entered, a party's petition for
contribution to fees and | ||
costs incurred in the proceeding shall be heard and
decided, in | ||
accordance with the following provisions:
| ||
(1) A petition for contribution, if not filed before | ||
the final hearing
on other issues between the parties, | ||
shall be filed no later than 14 days after
the closing of | ||
proofs in the final hearing or within such other period as | ||
the
court orders.
| ||
(2) Any award of contribution to one party from the | ||
other party shall be
based on the criteria for division of | ||
marital property under this Section 503
and, if maintenance |
has been awarded, on the criteria for an award of
| ||
maintenance under Section 504.
| ||
(3) The filing of a petition for contribution shall not | ||
be deemed to
constitute a waiver of the attorney-client | ||
privilege between the petitioning
party and current or | ||
former counsel; and such a waiver shall not constitute a
| ||
prerequisite to a hearing for contribution. If either | ||
party's presentation on
contribution, however, includes | ||
evidence within the scope of the
attorney-client | ||
privilege, the disclosure or disclosures shall be narrowly
| ||
construed and shall not be deemed by the court to | ||
constitute a general waiver
of the privilege as to matters | ||
beyond the scope of the presentation.
| ||
(4) No finding on which a contribution award is based | ||
or denied shall be
asserted against counsel or former | ||
counsel for purposes of any hearing under
subsection (c) or | ||
(e) of Section 508.
| ||
(5) A contribution award (payable to either the | ||
petitioning
party or the party's counsel, or jointly, as | ||
the court determines) may be in
the form of either a set | ||
dollar amount or a percentage of fees and costs (or a
| ||
portion of fees and costs) to be subsequently agreed upon | ||
by the petitioning
party and counsel or, alternatively, | ||
thereafter determined in a hearing
pursuant to subsection | ||
(c) of Section 508 or previously or thereafter
determined | ||
in an independent proceeding under subsection (e) of |
Section
508.
| ||
(6) The changes to this Section 503 made by this | ||
amendatory Act of 1996
apply to cases pending on or after | ||
June 1, 1997, except as otherwise provided
in Section 508.
| ||
(k) In determining the value of assets or property under | ||
this Section, the court shall employ a fair market value | ||
standard. The date of valuation for the purposes of division of | ||
assets shall be the date of trial or such other date as agreed | ||
by the parties or ordered by the court, within its discretion. | ||
If the court grants a petition brought under Section 2-1401 of | ||
the Code of Civil Procedure, then the court has the discretion | ||
to use the date of the trial or such other date as agreed upon | ||
by the parties, or ordered by the court within its discretion, | ||
for purposes of determining the value of assets or property. | ||
(l) The court may seek the advice of financial experts or | ||
other professionals, whether or not employed by the court on a | ||
regular basis. The advice given shall be in writing and made | ||
available by the court to counsel. Counsel may examine as a | ||
witness any professional consulted by the court designated as | ||
the court's witness. Professional personnel consulted by the | ||
court are subject to subpoena for the purposes of discovery, | ||
trial, or both. The court shall allocate the costs and fees of | ||
those professional personnel between the parties based upon the | ||
financial ability of each party and any other criteria the | ||
court considers appropriate, and the allocation is subject to | ||
reallocation under subsection (a) of Section 508. Upon the |
request of any party or upon the court's own motion, the court | ||
may conduct a hearing as to the reasonableness of those fees | ||
and costs. | ||
(m) The changes made to this Section by Public Act 97-941 | ||
apply only to petitions for dissolution of marriage filed on or | ||
after January 1, 2013 (the effective date of Public Act | ||
97-941). | ||
(Source: P.A. 99-78, eff. 7-20-15; 99-90, eff. 1-1-16 .)
| ||
(750 ILCS 5/504) (from Ch. 40, par. 504)
| ||
Sec. 504. Maintenance.
| ||
(a) Entitlement to maintenance. In a proceeding for | ||
dissolution of marriage or legal separation or
declaration of | ||
invalidity of marriage, or a proceeding for maintenance
| ||
following dissolution of the marriage by a court which lacked | ||
personal
jurisdiction over the absent spouse, the court may | ||
grant a maintenance award for either spouse in amounts and for | ||
periods of
time as the court deems just, without regard to | ||
marital misconduct, and the maintenance may
be paid from the | ||
income or property of the other spouse. The court shall first | ||
determine whether a maintenance award is appropriate, after | ||
consideration
of all relevant factors, including:
| ||
(1) the income and property of each party, including | ||
marital property
apportioned and non-marital property | ||
assigned to the party seeking maintenance as well as all | ||
financial obligations imposed on the parties as a result of |
the dissolution of marriage;
| ||
(2) the needs of each party;
| ||
(3) the realistic present and future earning capacity | ||
of each party;
| ||
(4) any impairment of the present and future earning | ||
capacity of the
party seeking maintenance due to that party | ||
devoting time to domestic
duties or having forgone or | ||
delayed education, training,
employment, or
career | ||
opportunities due to the marriage;
| ||
(5) any impairment of the realistic present or future | ||
earning capacity of the party against whom maintenance is | ||
sought; | ||
(6) the time necessary to enable the party seeking | ||
maintenance to
acquire appropriate education, training, | ||
and employment, and whether that
party is able to support | ||
himself or herself through appropriate employment
or any | ||
parental responsibility arrangements and its effect on the | ||
party seeking employment;
| ||
(7) the standard of living established during the | ||
marriage;
| ||
(8) the duration of the marriage;
| ||
(9) the age, health, station, occupation, amount and | ||
sources of income, vocational skills, employability, | ||
estate, liabilities, and the needs of each of the parties;
| ||
(10) all sources of public and private income | ||
including, without limitation, disability and retirement |
income; | ||
(11) the tax consequences of the property division upon | ||
the respective
economic circumstances of the parties;
| ||
(12) contributions and services by the party seeking | ||
maintenance to
the education, training, career or career | ||
potential, or license of the
other spouse;
| ||
(13) any valid agreement of the parties; and
| ||
(14) any other factor that the court expressly finds to | ||
be just and
equitable.
| ||
(b) (Blank).
| ||
(b-1) Amount and duration of maintenance. If the court | ||
determines that a maintenance award is appropriate, the court | ||
shall order maintenance in accordance with either paragraph (1) | ||
or (2) of this subsection (b-1): | ||
(1) Maintenance award in accordance with guidelines. | ||
In situations when the combined gross income of the parties | ||
is less than $250,000 and the payor has no obligation to | ||
pay child support or maintenance or both from a prior | ||
relationship, maintenance payable after the date the | ||
parties' marriage is dissolved shall be in accordance with | ||
subparagraphs (A) and (B) of this paragraph (1), unless the | ||
court makes a finding that the application of the | ||
guidelines would be inappropriate. | ||
(A) The amount of maintenance under this paragraph | ||
(1) shall be calculated by taking 30% of the payor's | ||
gross income minus 20% of the payee's gross income. The
|
amount calculated as maintenance, however, when added | ||
to the gross income of the payee, may not result in the | ||
payee receiving an amount that is in excess of 40% of | ||
the combined gross income
of the parties. | ||
(B) The duration of an award under this paragraph | ||
(1) shall be calculated by multiplying the length of | ||
the marriage at the time the action was commenced by | ||
whichever of
the following factors applies: 5 years or | ||
less (.20); more than 5 years but less than 10 years | ||
(.40); 10 years or more but less than 15
years (.60); | ||
or 15 years or more but less than 20 years (.80). For a | ||
marriage of 20 or more years, the court, in its | ||
discretion, shall order either permanent maintenance | ||
or maintenance for a period equal to the length of the
| ||
marriage. | ||
(2) Maintenance award not in accordance with | ||
guidelines. Any non-guidelines award of maintenance shall | ||
be made after the court's consideration of all relevant | ||
factors set forth in subsection (a) of this Section. | ||
(b-2) Findings. In each case involving the issue of | ||
maintenance, the court shall make specific findings of fact, as | ||
follows: | ||
(1) the court shall state its reasoning for awarding or | ||
not awarding maintenance and shall include references to | ||
each relevant factor set forth in subsection (a) of this | ||
Section; and |
(2) if the court deviates from otherwise applicable | ||
guidelines under paragraph (1) of subsection (b-1), it | ||
shall state in its findings the amount of maintenance (if | ||
determinable) or duration that would have been required | ||
under the guidelines and the reasoning for any variance | ||
from the guidelines. | ||
(b-3) Gross income. For purposes of this Section, the term | ||
"gross income" means all income from all sources, within the | ||
scope of that phrase phase in Section 505 of this Act. | ||
(b-4) Unallocated maintenance. Unless the parties | ||
otherwise agree, the court may not order unallocated | ||
maintenance and child support in any dissolution judgment or in | ||
any post-dissolution order. In its discretion, the court may | ||
order unallocated maintenance and child support in any | ||
pre-dissolution temporary order. | ||
(b-4.5) Fixed-term maintenance in marriages of less than 10 | ||
years. If a court grants maintenance for a fixed period under | ||
subsection (a) of this Section at the conclusion of a case | ||
commenced before the tenth anniversary of the marriage, the | ||
court may also designate the termination of the period during | ||
which this maintenance is to be paid as a "permanent | ||
termination". The effect of this designation is that | ||
maintenance is barred after the ending date of the period | ||
during which maintenance is to be paid. | ||
(b-5) Interest on maintenance. Any maintenance obligation | ||
including any unallocated maintenance and child support |
obligation, or any portion of any support obligation, that | ||
becomes due and remains unpaid shall accrue simple interest as | ||
set forth in Section 505 of this Act.
| ||
(b-7) Maintenance judgments. Any new or existing | ||
maintenance order including any unallocated maintenance and | ||
child support order entered by the court under this Section | ||
shall be deemed to be a series of judgments against the person | ||
obligated to pay support thereunder. Each such judgment to be | ||
in the amount of each payment or installment of support and | ||
each such judgment to be deemed entered as of the date the | ||
corresponding payment or installment becomes due under the | ||
terms of the support order, except no judgment shall arise as | ||
to any installment coming due after the termination of | ||
maintenance as provided by Section 510 of the Illinois Marriage | ||
and Dissolution of Marriage Act or the provisions of any order | ||
for maintenance. Each such judgment shall have the full force, | ||
effect and attributes of any other judgment of this State, | ||
including the ability to be enforced. Notwithstanding any other | ||
State or local law to the contrary, a lien arises by operation | ||
of law against the real and personal property of the obligor | ||
for each installment of overdue support owed by the obligor. | ||
(b-8) Upon review of any previously ordered maintenance | ||
award, the court may extend maintenance for further review, | ||
extend maintenance for a fixed non-modifiable term, extend | ||
maintenance for an indefinite term, or permanently terminate | ||
maintenance in accordance with subdivision (b-1)(1)(A) of this |
Section. | ||
(c) Maintenance during an appeal. The court may grant and | ||
enforce the payment of maintenance during
the pendency of an | ||
appeal as the court shall deem reasonable and proper.
| ||
(d) Maintenance during imprisonment. No maintenance shall | ||
accrue during the period in which a party is
imprisoned for | ||
failure to comply with the court's order for the payment of
| ||
such maintenance.
| ||
(e) Fees when maintenance is paid through the clerk. When | ||
maintenance is to be paid through the clerk of the court in a
| ||
county of 1,000,000 inhabitants or less, the order shall direct | ||
the obligor
to pay to the clerk, in addition to the maintenance | ||
payments, all fees
imposed by the county board under paragraph | ||
(3) of subsection (u) of
Section 27.1 of the Clerks of Courts | ||
Act. Unless paid in cash or pursuant
to an order for | ||
withholding, the payment of the fee shall be by a separate
| ||
instrument from the support payment and shall be made to the | ||
order of
the Clerk.
| ||
(f) Maintenance secured by life insurance. An award ordered | ||
by a court upon entry of a dissolution judgment or upon entry | ||
of an award of maintenance following a reservation of | ||
maintenance in a dissolution judgment may be reasonably | ||
secured, in whole or in part, by life insurance on the
payor's | ||
life on terms as to which the parties agree, or, if they do not | ||
agree, on such terms determined by the court,
subject to the | ||
following: |
(1) With respect to existing life insurance, provided | ||
the court is apprised through evidence,
stipulation, or | ||
otherwise as to level of death benefits, premium, and other | ||
relevant
data and makes findings relative thereto, the | ||
court may allocate death benefits, the right
to assign | ||
death benefits, or the obligation for future premium | ||
payments between the
parties as it deems just. | ||
(2) To the extent the court determines that its award | ||
should be secured, in whole or in part,
by new life | ||
insurance on the payor's life, the court may only order: | ||
(i) that the payor cooperate on all appropriate | ||
steps for the payee to obtain
such new life insurance; | ||
and | ||
(ii) that the payee, at his or her sole option and | ||
expense, may obtain such new life
insurance on the | ||
payor's life up to a maximum level of death benefit | ||
coverage,
or descending death benefit coverage, as is | ||
set by the court, such level not to exceed a reasonable
| ||
amount in light of the court's award, with the payee or | ||
the
payee's designee being the beneficiary of such life | ||
insurance. | ||
In determining the maximum level of death benefit coverage, | ||
the court shall take into account all relevant facts and | ||
circumstances, including the impact on access to life | ||
insurance by the maintenance payor. If in resolving any | ||
issues under paragraph (2) of this subsection (f) a court |
reviews any submitted or proposed application for new | ||
insurance on the life of a maintenance payor, the review | ||
shall be in camera. | ||
(3) A judgment shall expressly set forth that all death | ||
benefits paid under life insurance on
a payor's life | ||
maintained or obtained pursuant to this subsection to | ||
secure
maintenance are designated as excludable from the | ||
gross income of the
maintenance payee under Section | ||
71(b)(1)(B) of the Internal Revenue Code, unless an
| ||
agreement or stipulation of the parties otherwise | ||
provides. | ||
(Source: P.A. 98-961, eff. 1-1-15; 99-90, eff. 1-1-16 .)
| ||
(750 ILCS 5/505) (from Ch. 40, par. 505)
| ||
Sec. 505. Child support; contempt; penalties.
| ||
(a) In a proceeding for dissolution of marriage, legal | ||
separation,
declaration of invalidity of marriage, a | ||
proceeding for child support
following dissolution of the | ||
marriage by a court that lacked personal
jurisdiction over the | ||
absent spouse, a proceeding for modification of a
previous | ||
order for child support under Section 510 of this Act, or any
| ||
proceeding authorized under Section 501 or 601 of this Act, the | ||
court may
order either or both parents owing a duty of support | ||
to a child of the
marriage to pay an amount reasonable and | ||
necessary for the support of the child, without
regard to | ||
marital misconduct. The duty of support owed to a child
|
includes the obligation to provide for the reasonable and | ||||||||||||||||||
necessary
educational, physical, mental and emotional health | ||||||||||||||||||
needs of the child.
For purposes of this Section, the term | ||||||||||||||||||
"child" shall include any child under
age 18 and
any child | ||||||||||||||||||
under age 19 who is still attending high school. For purposes | ||||||||||||||||||
of this Section, the term "supporting parent" means the parent | ||||||||||||||||||
obligated to pay support to the other parent.
| ||||||||||||||||||
(1) The Court shall determine the minimum amount of | ||||||||||||||||||
support by using the
following guidelines:
| ||||||||||||||||||
| ||||||||||||||||||
(2) The above guidelines shall be applied in each case | ||||||||||||||||||
unless the court
finds that a deviation from the guidelines | ||||||||||||||||||
is appropriate after considering the best interest of the | ||||||||||||||||||
child in light of the evidence, including, but not limited | ||||||||||||||||||
to, one or more of the following relevant
factors:
| ||||||||||||||||||
(a) the financial resources and needs of the child;
| ||||||||||||||||||
(b) the financial resources and needs of the | ||||||||||||||||||
parents;
| ||||||||||||||||||
(c) the standard of living the child would have |
enjoyed had the
marriage not been dissolved;
| ||
(d) the physical, mental, and emotional needs of | ||
the child; and
| ||
(d-5) the educational needs of the child.
| ||
If the court deviates from the guidelines, the court's | ||
finding
shall state the amount of support that would have | ||
been required under the
guidelines, if determinable. The | ||
court shall include the reason or reasons for
the variance | ||
from the
guidelines.
| ||
(2.5) The court, in its discretion, in addition to | ||
setting child support pursuant to the guidelines and | ||
factors, may order either or both parents owing a duty of | ||
support to a child of the marriage to contribute to the | ||
following expenses, if determined by the court to be | ||
reasonable: | ||
(a) health needs not covered by insurance; | ||
(b) child care; | ||
(c) education; and | ||
(d) extracurricular activities. | ||
(3) "Net income" is defined as the total of all income | ||
from all
sources, minus the following deductions:
| ||
(a) Federal income tax (properly calculated | ||
withholding or estimated
payments);
| ||
(b) State income tax (properly calculated | ||
withholding or estimated
payments);
| ||
(c) Social Security (FICA payments);
|
(d) Mandatory retirement contributions required by | ||
law or as a
condition of employment;
| ||
(e) Union dues;
| ||
(f) Dependent and individual | ||
health/hospitalization insurance premiums and premiums | ||
for life insurance ordered by the court to reasonably | ||
secure payment of ordered child support;
| ||
(g) Prior obligations of support or maintenance | ||
actually paid pursuant
to a court order;
| ||
(g-5) Obligations pursuant to a court order for | ||
maintenance in the pending proceeding actually paid or | ||
payable under Section 504 to the same party to whom | ||
child support is to be payable; | ||
(h) Expenditures for repayment of debts that | ||
represent reasonable and
necessary expenses for the | ||
production of income including, but not limited to, | ||
student loans, medical expenditures
necessary to | ||
preserve life or health, reasonable expenditures for | ||
the
benefit of the child and the other parent, | ||
exclusive of gifts. The court
shall reduce net income | ||
in determining the minimum amount of support to be
| ||
ordered only for the period that such payments are due | ||
and shall enter an
order containing provisions for its | ||
self-executing modification upon
termination of such | ||
payment period;
| ||
(i) Foster care payments paid by the Department of |
Children and Family Services for providing licensed | ||
foster care to a foster child. | ||
(4) In cases where the court order provides for
| ||
health/hospitalization insurance coverage pursuant to | ||
Section 505.2 of
this Act, the premiums for that insurance, | ||
or that portion of the premiums
for which the supporting | ||
party is responsible in the case of insurance
provided | ||
through an employer's health insurance plan where
the | ||
employer pays a portion of the premiums, shall be | ||
subtracted
from net income in determining the minimum | ||
amount of support to be ordered.
| ||
(4.5) In a proceeding for child support following | ||
dissolution of the
marriage by a court that lacked personal | ||
jurisdiction over the absent spouse,
and in which the court | ||
is requiring payment of support for the period before
the | ||
date an order for current support is entered, there is a | ||
rebuttable
presumption
that the supporting party's net | ||
income for the prior period was the same as his
or her net | ||
income at the time the order for current support is | ||
entered.
| ||
(5) If the net income cannot be determined because of | ||
default or any
other reason, the court shall order support | ||
in an amount considered
reasonable in the particular case. | ||
The final order in all cases shall
state the support level | ||
in dollar amounts.
However, if the
court finds that the | ||
child support amount cannot be expressed exclusively as a
|
dollar amount because all or a portion of the supporting | ||
parent's net income is uncertain
as to source, time of | ||
payment, or amount, the court may order a percentage
amount | ||
of support in addition to a specific dollar amount and | ||
enter
such other orders as may be necessary to determine | ||
and enforce, on a timely
basis, the applicable support | ||
ordered.
| ||
(6) If (i) the supporting parent was properly served | ||
with a request
for
discovery of financial information | ||
relating to the supporting parent's
ability to
provide | ||
child support, (ii) the supporting parent failed to comply | ||
with the
request,
despite having been ordered to do so by | ||
the court, and (iii) the supporting
parent is not present | ||
at the hearing to determine support despite having
received
| ||
proper notice, then any relevant financial information | ||
concerning the supporting
parent's ability to provide | ||
child support that was obtained
pursuant to
subpoena and | ||
proper notice shall be admitted into evidence without the | ||
need to
establish any further foundation for its admission.
| ||
(a-5) In an action to enforce an order for support based on | ||
the respondent's failure of the supporting parent
to make | ||
support payments as required by the order, notice of | ||
proceedings to
hold the supporting parent respondent in | ||
contempt for that failure may be served on the
supporting | ||
parent respondent by personal service or by regular mail | ||
addressed to the respondent's
last known address of the |
supporting parent . The respondent's last known address of the | ||
supporting parent may be determined from
records of the clerk | ||
of the court, from the Federal Case Registry of Child
Support | ||
Orders, or by any other reasonable means.
| ||
(b) Failure of either parent to comply with an order to pay | ||
support shall
be punishable as in other cases of contempt. In | ||
addition to other
penalties provided by law the Court may, | ||
after finding the parent guilty
of contempt, order that the | ||
parent be:
| ||
(1) placed on probation with such conditions of | ||
probation as the Court
deems advisable;
| ||
(2) sentenced to periodic imprisonment for a period not | ||
to exceed 6
months; provided, however, that the Court may | ||
permit the parent to be
released for periods of time during | ||
the day or night to:
| ||
(A) work; or
| ||
(B) conduct a business or other self-employed | ||
occupation.
| ||
The Court may further order any part or all of the earnings | ||
of a parent
during a sentence of periodic imprisonment paid to | ||
the Clerk of the Circuit
Court or to the parent receiving the | ||
support or to the guardian receiving the support
of the | ||
children of the sentenced parent for the support of said
| ||
children until further order of the Court.
| ||
If a parent who is found guilty of contempt for failure to | ||
comply with an order to pay support is a person who conducts a |
business or who is self-employed, the court in addition to | ||
other penalties provided by law may order that the parent do | ||
one or more of the following: (i) provide to the court monthly | ||
financial statements showing income and expenses from the | ||
business or the self-employment; (ii) seek employment and | ||
report periodically to the court with a diary, listing, or | ||
other memorandum of his or her employment search efforts; or | ||
(iii) report to the Department of Employment Security for job | ||
search services to find employment that will be subject to | ||
withholding for child support. | ||
If there is a unity of interest and ownership sufficient to | ||
render no
financial separation between a supporting parent and | ||
another person or
persons or business entity, the court may | ||
pierce the ownership veil of the
person, persons, or business | ||
entity to discover assets of the supporting
parent held in the | ||
name of that person, those persons, or that business entity.
| ||
The following circumstances are sufficient to authorize a court | ||
to order
discovery of the assets of a person, persons, or | ||
business entity and to compel
the application of any discovered | ||
assets toward payment on the judgment for
support:
| ||
(1) the supporting parent and the person, persons, or | ||
business entity
maintain records together.
| ||
(2) the supporting parent and the person, persons, or | ||
business entity
fail to maintain an arm's length | ||
relationship between themselves with regard to
any assets.
| ||
(3) the supporting parent transfers assets to the |
person, persons,
or business entity with the intent to | ||
perpetrate a fraud on the
parent receiving the support.
| ||
With respect to assets which
are real property, no order | ||
entered under this paragraph shall affect the
rights of bona | ||
fide purchasers, mortgagees, judgment creditors, or other lien
| ||
holders who acquire their interests in the property prior to | ||
the time a notice
of lis pendens pursuant to the Code of Civil | ||
Procedure or a copy of the order
is placed of record in the | ||
office of the recorder of deeds for the county in
which the | ||
real property is located.
| ||
The court may also order in cases where the parent is 90 | ||
days or more
delinquent in payment of support or has been | ||
adjudicated in arrears in an
amount equal to 90 days obligation | ||
or more, that the parent's Illinois driving
privileges be | ||
suspended until the court
determines that the parent is in | ||
compliance with the order of support.
The court may also order | ||
that the parent be issued a family financial
responsibility | ||
driving permit that would allow limited driving privileges for
| ||
employment and medical purposes in accordance with Section | ||
7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit | ||
court shall certify the order
suspending the driving privileges | ||
of the parent or granting the issuance of a
family financial | ||
responsibility driving permit to the Secretary of State on
| ||
forms prescribed by the Secretary. Upon receipt of the | ||
authenticated
documents, the Secretary of State shall suspend | ||
the parent's driving privileges
until further order of the |
court and shall, if ordered by the court, subject to
the | ||
provisions of Section 7-702.1 of the Illinois Vehicle Code, | ||
issue a family
financial responsibility driving permit to the | ||
parent.
| ||
In addition to the penalties or punishment that may be | ||
imposed under this
Section, any person whose conduct | ||
constitutes a violation of Section 15 of the
Non-Support | ||
Punishment Act may be prosecuted under that Act, and a person
| ||
convicted under that Act may be sentenced in accordance with | ||
that Act. The
sentence may include but need not be limited to a | ||
requirement that the person
perform community service under | ||
Section 50 of that Act or participate in a work
alternative | ||
program under Section 50 of that Act. A person may not be | ||
required
to participate in a work alternative program under | ||
Section 50 of that Act if
the person is currently participating | ||
in a work program pursuant to Section
505.1 of this Act.
| ||
A support obligation, or any portion of a support | ||
obligation, which becomes
due and remains unpaid as of the end | ||
of each month, excluding the child support that was due for | ||
that month to the extent that it was not paid in that month, | ||
shall accrue simple interest as set forth in Section 12-109 of | ||
the Code of Civil Procedure.
An order for support entered or | ||
modified on or after January 1, 2006 shall
contain a statement | ||
that a support obligation required under the order, or any
| ||
portion of a support obligation required under the order, that | ||
becomes due and
remains unpaid as of the end of each month, |
excluding the child support that was due for that month to the | ||
extent that it was not paid in that month, shall accrue simple | ||
interest as set forth in Section 12-109 of the Code of Civil | ||
Procedure. Failure to include the statement in the order for | ||
support does
not affect the validity of the order or the | ||
accrual of interest as provided in
this Section.
| ||
(c) A one-time charge of 20% is imposable upon the amount | ||
of
past-due child support owed on July 1, 1988 which has | ||
accrued under a
support order entered by the court. The charge | ||
shall be imposed in
accordance with the provisions of Section | ||
10-21 of the Illinois Public Aid
Code and shall be enforced by | ||
the court upon petition.
| ||
(d) Any new or existing support order entered by the court
| ||
under this Section shall be deemed to be a series of judgments | ||
against the
person obligated to pay support thereunder, each | ||
such judgment to be in the
amount of each payment or | ||
installment of support and each such judgment to
be deemed | ||
entered as of the date the corresponding payment or installment
| ||
becomes due under the terms of the support order. Each such | ||
judgment shall
have the full force, effect and attributes of | ||
any other judgment of this
State, including the ability to be | ||
enforced.
Notwithstanding any other State or local law to the | ||
contrary, a lien arises by operation of law against the real | ||
and personal property of
the supporting parent for each | ||
installment of overdue support owed by the supporting
parent.
| ||
(e) When child support is to be paid through the clerk of |
the court in a
county of 1,000,000 inhabitants or less, the | ||
order shall direct the supporting parent
to pay to the clerk, | ||
in addition to the child support payments, all fees
imposed by | ||
the county board under paragraph (3) of subsection (u) of
| ||
Section 27.1 of the Clerks of Courts Act. Unless paid in cash | ||
or pursuant to
an order for withholding, the payment of the fee | ||
shall be by a separate
instrument from the support payment and | ||
shall be made to the order of the
Clerk.
| ||
(f) All orders for support, when entered or
modified, shall | ||
include a provision requiring the supporting parent to notify
| ||
the court and, in cases in which a party is receiving child and | ||
spouse
services under Article X of the Illinois Public Aid | ||
Code, the
Department of Healthcare and Family Services, within | ||
7 days, (i) of the name and address
of any new employer of the | ||
obligor, (ii) whether the supporting parent has access to
| ||
health insurance coverage through the employer or other group | ||
coverage and,
if so, the policy name and number and the names | ||
of persons covered under
the policy, except only the initials | ||
of any covered minors shall be included, and (iii) of any new | ||
residential or mailing address or telephone
number of the | ||
supporting parent. In any subsequent action to enforce a
| ||
support order, upon a sufficient showing that a diligent effort | ||
has been made
to ascertain the location of the supporting | ||
parent, service of process or
provision of notice necessary in | ||
the case may be made at the last known
address of the | ||
supporting parent in any manner expressly provided by the
Code |
of Civil Procedure or this Act, which service shall be | ||
sufficient for
purposes of due process.
| ||
(g) An order for support shall include a date on which the | ||
current
support obligation terminates. The termination date | ||
shall be no earlier than
the date on which the child covered by | ||
the order will attain the age of
18. However, if the child will | ||
not graduate from high school until after
attaining the age of | ||
18, then the termination date shall be no earlier than the
| ||
earlier of the date on which the child's high school graduation | ||
will occur or
the date on which the child will attain the age | ||
of 19. The order for support
shall state that the termination | ||
date does not apply to any arrearage that may
remain unpaid on | ||
that date. Nothing in this subsection shall be construed to
| ||
prevent the court from modifying the order or terminating the | ||
order in the
event the child is otherwise emancipated.
| ||
(g-5) If there is an unpaid arrearage or delinquency (as | ||
those terms are defined in the Income Withholding for Support | ||
Act) equal to at least one month's support obligation on the | ||
termination date stated in the order for support or, if there | ||
is no termination date stated in the order, on the date the | ||
child attains the age of majority or is otherwise emancipated, | ||
the periodic amount required to be paid for current support of | ||
that child immediately prior to that date shall automatically | ||
continue to be an obligation, not as current support but as | ||
periodic payment toward satisfaction of the unpaid arrearage or | ||
delinquency. That periodic payment shall be in addition to any |
periodic payment previously required for satisfaction of the | ||
arrearage or delinquency. The total periodic amount to be paid | ||
toward satisfaction of the arrearage or delinquency may be | ||
enforced and collected by any method provided by law for | ||
enforcement and collection of child support, including but not | ||
limited to income withholding under the Income Withholding for | ||
Support Act. Each order for support entered or modified on or | ||
after the effective date of this amendatory Act of the 93rd | ||
General Assembly must contain a statement notifying the parties | ||
of the requirements of this subsection. Failure to include the | ||
statement in the order for support does not affect the validity | ||
of the order or the operation of the provisions of this | ||
subsection with regard to the order. This subsection shall not | ||
be construed to prevent or affect the establishment or | ||
modification of an order for support of a minor child or the | ||
establishment or modification of an order for support of a | ||
non-minor child or educational expenses under Section 513 of | ||
this Act.
| ||
(h) An order entered under this Section shall include a | ||
provision requiring
either parent to report to the other parent | ||
and to the clerk of court within 10 days each time either | ||
parent obtains new employment, and each time either parent's
| ||
employment is terminated for any reason. The report shall be in | ||
writing and
shall, in the case of new employment, include the | ||
name and address of the new
employer. Failure to report new | ||
employment or the termination of current
employment, if coupled |
with nonpayment of support for a period in excess of 60
days, | ||
is indirect criminal contempt. For either parent arrested for | ||
failure to report new employment bond shall be set in the | ||
amount of the child support that should have been paid during | ||
the period of unreported employment. An order entered under | ||
this Section shall also include a provision requiring either | ||
parent to advise the other of a change in residence within 5 | ||
days
of the change except when the court finds that the | ||
physical, mental, or
emotional health of a party or that of a | ||
child, or both, would be
seriously endangered by disclosure of | ||
the party's address.
| ||
(i) The court does not lose the powers of contempt, | ||
driver's license
suspension, or other child support | ||
enforcement mechanisms, including, but
not limited to, | ||
criminal prosecution as set forth in this Act, upon the
| ||
emancipation of the minor child or children.
| ||
(Source: P.A. 98-463, eff. 8-16-13; 98-961, eff. 1-1-15; 99-90, | ||
eff. 1-1-16 .)
| ||
(750 ILCS 5/508) (from Ch. 40, par. 508)
| ||
Sec. 508. Attorney's Fees; Client's Rights and | ||
Responsibilities Respecting
Fees and
Costs. | ||
(a) The court from time to time, after due notice and | ||
hearing, and after
considering the financial resources of the | ||
parties, may order any party to
pay a reasonable amount for his | ||
own or the other party's costs and
attorney's fees. Interim |
attorney's fees and costs may be awarded from the
opposing | ||
party, in a pre-judgment dissolution proceeding in accordance | ||
with subsection (c-1) of Section 501 and in any other | ||
proceeding under this subsection. At the
conclusion of any | ||
pre-judgment dissolution proceeding under this subsection, | ||
contribution to attorney's fees and costs may be
awarded from | ||
the opposing party in accordance with subsection (j) of Section
| ||
503 and in any other proceeding under this subsection. Fees and | ||
costs may be awarded in any proceeding to counsel from a former | ||
client in
accordance with subsection (c) of
this Section.
| ||
Awards may be made in connection with the following:
| ||
(1) The maintenance or defense of any proceeding under | ||
this Act.
| ||
(2) The enforcement or modification of any order or | ||
judgment
under this Act.
| ||
(3) The defense of an appeal of any order or judgment | ||
under
this Act, including the defense of appeals of | ||
post-judgment orders.
| ||
(3.1) The prosecution of any claim on appeal (if the | ||
prosecuting party
has
substantially prevailed).
| ||
(4) The maintenance or defense of a petition brought | ||
under
Section 2-1401 of the Code of Civil Procedure seeking | ||
relief from a
final order or judgment under this Act. Fees | ||
incurred with respect to motions under
Section 2-1401 of | ||
the Code of Civil Procedure may be granted only to the | ||
party who substantially prevails.
|
(5) The costs and legal services of an attorney | ||
rendered in
preparation of the commencement of the | ||
proceeding brought under this Act.
| ||
(6) Ancillary litigation incident to, or reasonably | ||
connected with, a
proceeding under this Act.
| ||
(7) Costs and attorney's fees incurred in an action | ||
under the Hague Convention on the Civil Aspects of | ||
International Child Abduction. | ||
All petitions for or relating to interim fees and costs | ||
under this subsection shall be accompanied by an affidavit as | ||
to the factual basis for the relief requested and all hearings | ||
relative to any such petition shall be scheduled expeditiously | ||
by the court. All provisions for contribution under this | ||
subsection shall also be subject to paragraphs (3), (4), and | ||
(5) of subsection (j) of Section 503. | ||
The court may order that the award of attorney's fees and | ||
costs
(including an interim or contribution award) shall be | ||
paid directly to the
attorney, who may enforce the order in his | ||
or her name, or that it shall be
paid to
the appropriate party. | ||
Judgment may be entered and enforcement had
accordingly. Except | ||
as otherwise provided in subdivision (e)(1) of this
Section, | ||
subsection (c) of this Section
is exclusive as to the right of | ||
any counsel
(or
former counsel) of record to petition a court | ||
for an award and judgment for
final fees and costs during the | ||
pendency of a proceeding under this Act.
| ||
(a-5) A petition for temporary attorney's fees in a |
post-judgment case may be heard on a non-evidentiary,
summary | ||
basis. | ||
(b) In every proceeding for the enforcement of an order or | ||
judgment
when the court finds that the failure to comply with | ||
the order or judgment
was without compelling cause or | ||
justification, the court shall order the
party against
whom the | ||
proceeding is brought to pay promptly the costs and reasonable
| ||
attorney's
fees of the prevailing party.
If non-compliance is | ||
with respect to a discovery order, the non-compliance is
| ||
presumptively without compelling cause or justification, and | ||
the presumption
may only be rebutted by clear and convincing | ||
evidence. If at any time a court
finds that a hearing under | ||
this Act was precipitated or conducted for any
improper | ||
purpose, the court shall allocate fees and costs of all parties | ||
for
the hearing to the party or counsel found to have acted | ||
improperly. Improper
purposes include, but are not limited to, | ||
harassment, unnecessary
delay, or other acts needlessly | ||
increasing the cost of litigation.
| ||
(c) Final hearings for attorney's fees and costs against an | ||
attorney's own
client, pursuant to a Petition for Setting Final | ||
Fees and Costs of either a
counsel or a client, shall be | ||
governed by the following:
| ||
(1) No petition of a counsel of record may be filed | ||
against a client
unless the filing counsel previously has | ||
been granted leave to withdraw as
counsel of record or has | ||
filed a motion for leave to withdraw as counsel. On
receipt
|
of a petition of a client under this subsection (c), the | ||
counsel of record
shall promptly file a motion for leave to | ||
withdraw as counsel. If the client
and the counsel of
| ||
record agree, however, a hearing on the motion for leave to | ||
withdraw as counsel
filed pursuant to this
subdivision | ||
(c)(1) may be deferred until completion of any alternative | ||
dispute
resolution procedure under subdivision (c)(4). As | ||
to any
Petition for Setting Final Fees and Costs against a | ||
client or counsel over whom
the court has not obtained
| ||
jurisdiction, a separate summons shall issue. Whenever a | ||
separate summons is
not required, original notice as to a | ||
Petition for Setting Final Fees and Costs
may be given, and | ||
documents
served, in accordance with Illinois Supreme | ||
Court Rules 11 and 12.
| ||
(2) No final hearing under this subsection (c) is | ||
permitted
unless: (i) the
counsel and the client had | ||
entered into a written engagement agreement at the
time the | ||
client retained the counsel (or reasonably soon | ||
thereafter) and the
agreement
meets the requirements of | ||
subsection (f); (ii) the written engagement agreement
is | ||
attached to an affidavit of counsel that is filed with the | ||
petition or with
the
counsel's response to a client's | ||
petition; (iii) judgment in any contribution
hearing on | ||
behalf of the client has been entered or the right to a | ||
contribution
hearing under subsection (j) of Section 503 | ||
has been waived; (iv) the counsel
has withdrawn as
counsel |
of record; and (v) the petition seeks adjudication of all | ||
unresolved
claims for fees and costs between the counsel | ||
and the client. Irrespective of a
Petition for Setting | ||
Final Fees and Costs being heard in conjunction with an
| ||
original proceeding under this Act, the relief requested | ||
under a Petition for
Setting Final Fees and Costs | ||
constitutes a distinct cause of action. A pending
but | ||
undetermined
Petition for Setting Final Fees and Costs | ||
shall not affect appealability or enforceability of
any | ||
judgment or other adjudication in the original proceeding.
| ||
(3) The determination of reasonable attorney's fees | ||
and costs either under
this
subsection (c), whether | ||
initiated by a counsel or a client, or in an
independent | ||
proceeding for services within the scope of subdivisions | ||
(1)
through (5) of subsection (a), is within the sound | ||
discretion of the trial
court. The court shall first | ||
consider the written engagement agreement and, if
the court | ||
finds that the former client and the filing counsel, | ||
pursuant to
their written engagement agreement, entered | ||
into a contract which meets
applicable requirements of | ||
court rules and addresses all material terms, then
the | ||
contract shall be enforceable in accordance with its terms, | ||
subject to the
further requirements of this subdivision | ||
(c)(3). Before ordering enforcement,
however, the court
| ||
shall consider the performance pursuant to the contract. | ||
Any amount awarded
by the court must be found to be fair |
compensation for the services, pursuant
to the contract, | ||
that the court finds were reasonable and necessary. Quantum
| ||
meruit principles shall govern any award for legal services | ||
performed that is
not based on the terms of the written | ||
engagement agreement (except that, if a
court expressly | ||
finds in a particular case that aggregate billings to a | ||
client
were unconscionably excessive, the court in its | ||
discretion may reduce the award
otherwise determined | ||
appropriate or deny fees altogether).
| ||
(4) No final hearing under this subsection (c) is | ||
permitted unless any
controversy
over fees and costs (that | ||
is not otherwise subject to some form of alternative
| ||
dispute resolution) has first been submitted to mediation, | ||
arbitration, or any
other court approved alternative | ||
dispute resolution procedure, except as
follows:
| ||
(A) In any circuit court for a single county with a | ||
population in excess
of
1,000,000, the requirement of | ||
the controversy being submitted to an alternative
| ||
dispute resolution procedure is mandatory unless the | ||
client and the counsel
both affirmatively opt out of | ||
such procedures; or
| ||
(B) In any other circuit court, the requirement of | ||
the controversy being
submitted to an alternative | ||
dispute resolution procedure is mandatory only if
| ||
neither the client nor the counsel affirmatively opts | ||
out of such
procedures.
|
After completion of any such procedure (or after one or | ||
both sides has
opted
out of such procedures), if the | ||
dispute is unresolved, any pending motion
for leave to | ||
withdraw as counsel shall be promptly granted and a final | ||
hearing
under this subsection
(c) shall be expeditiously | ||
set and completed.
| ||
(5) A petition (or a praecipe for fee hearing without | ||
the petition) shall
be
filed no later than the end of the | ||
period in which it is permissible to file a
motion pursuant | ||
to Section 2-1203 of the Code of Civil Procedure. A | ||
praecipe
for fee hearing shall be dismissed if a Petition | ||
for Setting Final Fees and
Costs is not filed within 60 | ||
days after the filing of the praecipe. A counsel
who | ||
becomes a party by filing a Petition for Setting Final Fees | ||
and Costs, or
as a result of the client
filing a Petition | ||
for Setting Final Fees and Costs, shall not be entitled to
| ||
exercise the right to a
substitution of a judge without | ||
cause under subdivision (a)(2) of Section
2-1001 of the | ||
Code of Civil Procedure. Each of the foregoing deadlines | ||
for the filing of a praecipe or a petition shall be:
| ||
(A) tolled if a motion is filed under Section 2-1203 of | ||
the Code of Civil Procedure, in which instance a petition | ||
(or a praecipe) shall be filed no later than 30 days | ||
following disposition of all Section 2-1203 motions; or | ||
(B) tolled if a notice of appeal is filed, in which | ||
instance a petition (or praecipe) shall be filed no later |
than 30 days following the date jurisdiction on the issue | ||
appealed is returned to the trial court. | ||
If a praecipe has been timely filed, then by timely filed | ||
written stipulation between counsel and client (or former | ||
client), the deadline for the filing of a petition may be | ||
extended for a period of up to one year. | ||
(d) A consent judgment, in favor of a current counsel of | ||
record against his
or her own client for a specific amount in a | ||
marital settlement agreement,
dissolution judgment, or any | ||
other instrument involving the other litigant, is
prohibited. A | ||
consent judgment between client and counsel, however, is
| ||
permissible if it is entered pursuant to a verified petition | ||
for entry of
consent judgment, supported by an affidavit of the | ||
counsel of record that
includes the counsel's representation | ||
that the client has been provided an itemization of the billing | ||
or billings to the client, detailing
hourly costs, time spent, | ||
and tasks performed, and by an affidavit of the
client | ||
acknowledging receipt of that documentation, awareness
of the | ||
right to a hearing, the right to be represented by counsel | ||
(other than
counsel to whom the consent judgment is in favor), | ||
and the right to be present
at
the time of presentation of the | ||
petition, and agreement to the terms of the
judgment. The | ||
petition may be filed at any time during which it is | ||
permissible
for counsel of record to file a petition (or a | ||
praecipe) for a final fee
hearing, except that no such petition | ||
for entry of consent judgment may be
filed before adjudication |
(or waiver) of the client's right to contribution
under | ||
subsection (j) of Section 503 or filed after the filing of a
| ||
petition (or a praecipe) by counsel of record for a fee hearing | ||
under
subsection (c) if the petition (or praecipe) remains | ||
pending. No consent
security arrangement between a client and a | ||
counsel of record, pursuant to
which assets of a client are | ||
collateralized to secure payment of legal fees or
costs, is | ||
permissible unless approved in advance by the court as being
| ||
reasonable under the circumstances.
| ||
(e) Counsel may pursue an award and judgment against a | ||
former client for
legal
fees and costs in an independent | ||
proceeding in the following circumstances:
| ||
(1) While a case under this Act is still pending, a | ||
former counsel may pursue
such an award and judgment at any | ||
time subsequent to 90 days after the entry of
an order | ||
granting counsel leave to withdraw; and
| ||
(2) After the close of the period during which a | ||
petition (or praecipe)
may be filed under subdivision | ||
(c)(5), if no such petition (or praecipe) for
the
counsel | ||
remains pending, any counsel or former counsel may pursue | ||
such an award
and judgment in an independent proceeding.
| ||
In an independent proceeding, the prior applicability of this | ||
Section
shall in no way be deemed to have diminished any other | ||
right of any counsel (or
former counsel) to pursue an award and | ||
judgment for legal fees and costs on the
basis of remedies that | ||
may otherwise exist under applicable law; and the limitations |
period for breach of contract shall apply. In an
independent | ||
proceeding under subdivision (e)(1) in which the former counsel | ||
had
represented a former client in a dissolution case that is | ||
still pending, the former
client may bring
in his or her spouse | ||
as a third-party defendant, provided on or before the
final | ||
date for filing a petition (or praecipe) under subsection (c), | ||
the party
files an appropriate third-party complaint under | ||
Section 2-406 of the Code of
Civil Procedure. In any such case, | ||
any judgment later obtained by the
former counsel shall be | ||
against both spouses or ex-spouses, jointly and
severally | ||
(except that, if a hearing under subsection (j) of Section 503 | ||
has
already been concluded and the court hearing the | ||
contribution issue has imposed
a percentage allocation between | ||
the parties as to
fees and costs otherwise being adjudicated in | ||
the independent proceeding, the
allocation
shall be applied | ||
without deviation by the court in the independent proceeding
| ||
and a separate judgment shall be entered against each spouse | ||
for the
appropriate
amount). After the period for the | ||
commencement of a proceeding under
subsection (c), the | ||
provisions of this Section (other than the standard set
forth | ||
in subdivision (c)(3) and the terms respecting consent security
| ||
arrangements in subsection (d) of this Section 508) shall be | ||
inapplicable.
| ||
The changes made by this amendatory Act of the 94th General | ||
Assembly are declarative of existing law.
| ||
(f) Unless the Supreme Court by rule addresses the matters |
set out in this
subsection (f), a written engagement agreement | ||
within the scope
of subdivision (c)(2) shall have appended to | ||
it verbatim the following
Statement:
| ||
"STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
| ||
(1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement | ||
agreement, prepared
by the counsel, shall clearly address the | ||
objectives of representation and
detail the fee arrangement, | ||
including all material terms. If fees are to be
based on | ||
criteria apart from, or in addition to, hourly rates, such | ||
criteria
(e.g., unique time demands and/or utilization of | ||
unique expertise) shall be
delineated. The client shall receive | ||
a copy of the written engagement
agreement and any additional | ||
clarification requested and is advised not to
sign any such | ||
agreement which the client finds to be unsatisfactory or does
| ||
not understand.
| ||
(2) REPRESENTATION. Representation will commence upon the | ||
signing of the
written engagement agreement. The counsel will | ||
provide competent
representation, which requires legal | ||
knowledge, skill, thoroughness and
preparation to handle those | ||
matters set forth in the written engagement
agreement. Once | ||
employed, the counsel will act with reasonable diligence and
| ||
promptness, as well as use his best efforts on behalf of the | ||
client, but he
cannot guarantee results. The counsel will abide | ||
by the client's decision
concerning the objectives of | ||
representation, including whether or not to accept
an offer of |
settlement, and will endeavor to explain any matter to the | ||
extent
reasonably necessary to permit the client to make | ||
informed decisions regarding
representation. During the course | ||
of representation and afterwards, the
counsel
may not use or | ||
reveal a client's confidence or secrets, except as required or
| ||
permitted by law.
| ||
(3) COMMUNICATION. The counsel will keep the client | ||
reasonably informed
about the status of representation and will | ||
promptly respond to reasonable
requests for information, | ||
including any reasonable request for an estimate
respecting | ||
future costs of the representation or an appropriate portion of | ||
it.
The client shall be truthful in all discussions with the | ||
counsel and provide
all information or documentation required | ||
to enable the counsel to provide
competent representation. | ||
During representation, the client is entitled to
receive all | ||
pleadings and substantive documents prepared on behalf of the
| ||
client and every document received from any other counsel of | ||
record. At the
end of the representation and on written request | ||
from the client, the counsel
will return to the client all | ||
original documents and exhibits. In the event
that the counsel | ||
withdraws from representation, or is discharged by the client,
| ||
the counsel will turn over to the substituting counsel (or, if | ||
no
substitutions, to the client) all original documents and | ||
exhibits together with
complete copies of all pleadings and | ||
discovery within thirty (30) days of the
counsel's withdrawal | ||
or discharge.
|
(4) ETHICAL CONDUCT. The counsel cannot be required to | ||
engage in conduct
which is illegal, unethical, or fraudulent. | ||
In matters involving minor
children, the counsel may refuse to | ||
engage in conduct which, in the counsel's
professional | ||
judgment, would be contrary to the best interest of the | ||
client's
minor child or children. A counsel who cannot | ||
ethically abide by his client's
directions shall be allowed to | ||
withdraw from representation.
| ||
(5) FEES. The counsel's fee for services may not be | ||
contingent upon the
securing of a dissolution of marriage or | ||
upon being allocated parental responsibility or be based upon
| ||
the amount of maintenance, child support, or property | ||
settlement received,
except as specifically permitted under | ||
Supreme Court rules. The
counsel may not require a | ||
non-refundable retainer fee, but must remit back any
| ||
overpayment at the end of the representation. The counsel may | ||
enter into a
consensual security arrangement with the client | ||
whereby assets of the client
are pledged to secure payment of | ||
legal fees or costs, but only if the counsel
first obtains | ||
approval of the Court. The counsel will prepare and provide the
| ||
client with an itemized billing statement detailing hourly | ||
rates (and/or other
criteria), time spent, tasks performed, and | ||
costs incurred on a regular basis,
at least quarterly. The | ||
client should review each billing statement promptly
and | ||
address any objection or error in a timely manner. The client | ||
will not be
billed for time spent to explain or correct a |
billing statement. If an
appropriately detailed written | ||
estimate is submitted to a client as to future
costs for a | ||
counsel's representation or a portion of the contemplated | ||
services
(i.e., relative to specific steps recommended by the | ||
counsel in the estimate)
and, without objection from the | ||
client, the counsel then performs the
contemplated services, | ||
all such services are presumptively reasonable and
necessary, | ||
as well as to be deemed pursuant to the client's direction. In | ||
an
appropriate case, the client may pursue contribution to his | ||
or her fees and
costs from the other party.
| ||
(6) DISPUTES. The counsel-client relationship is regulated | ||
by the Illinois
Rules of Professional Conduct (Article VIII of | ||
the Illinois Supreme Court
Rules), and any dispute shall be | ||
reviewed under the terms of such Rules."
| ||
(g) The changes to this Section 508 made by this amendatory | ||
Act of 1996
apply to cases pending on or after June 1, 1997, | ||
except as follows:
| ||
(1) Subdivisions (c)(1) and (c)(2) of this Section 508, | ||
as well as
provisions of subdivision (c)(3) of this Section | ||
508 pertaining to written
engagement agreements, apply | ||
only to
cases filed on or after June 1, 1997.
| ||
(2) The following do not apply in the case of a hearing | ||
under this Section
that began before June 1, 1997:
| ||
(A) Subsection (c-1) of Section 501.
| ||
(B) Subsection (j) of Section 503.
| ||
(C) The changes to this Section 508 made by this |
amendatory Act of 1996
pertaining to the final setting | ||
of fees.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .)
| ||
(750 ILCS 5/513) (from Ch. 40, par. 513)
| ||
Sec. 513. Educational Expenses for a Non-minor Child.
| ||
(a) The court may award sums of money out of the property | ||
and income of
either or both parties or the estate of a | ||
deceased parent, as equity may
require, for the educational | ||
expenses of any child of the parties. Unless otherwise agreed | ||
to by the parties, all educational expenses which are the | ||
subject of a petition brought pursuant to this Section shall be | ||
incurred no later than the student's 23rd birthday, except for | ||
good cause shown, but in no event later than the child's 25th | ||
birthday. | ||
(b) Regardless of whether an award has been made under | ||
subsection (a), the court may require both parties and the | ||
child to complete the Free Application for Federal Student Aid | ||
(FAFSA) and other financial aid forms and to submit any form of | ||
that type prior to the designated submission deadline for the | ||
form. The court may require either or both parties to provide | ||
funds for the child so as to pay for the cost of up to 5 college | ||
applications, the cost of 2 standardized college entrance | ||
examinations, and the cost of one standardized college entrance | ||
examination preparatory course. | ||
(c) The authority under this Section to make provision for |
educational expenses extends not only to periods of college | ||
education or vocational or professional or other training after | ||
graduation from high school, but also to any period during | ||
which the child of the parties is still attending high school, | ||
even though he or she attained the age of 19. | ||
(d) Educational expenses may include, but shall not be | ||
limited to, the following: | ||
(1) except for good cause shown, the actual cost of the | ||
child's post-secondary expenses, including tuition and | ||
fees, provided that the cost for tuition and fees does not | ||
exceed the amount of in-state tuition and fees paid by a | ||
student at the University of Illinois at Urbana-Champaign | ||
for the same academic year; | ||
(2) except for good cause shown, the actual costs of | ||
the child's housing expenses, whether on-campus or | ||
off-campus, provided that the housing expenses do not | ||
exceed the cost for the same academic year of a | ||
double-occupancy student room, with a standard meal plan, | ||
in a residence hall operated by the University of Illinois | ||
at Urbana-Champaign; | ||
(3) the actual costs of the child's medical expenses, | ||
including medical insurance, and dental expenses; | ||
(4) the reasonable living expenses of the child during | ||
the academic year and periods of recess: | ||
(A) if the child is a resident student attending a | ||
post-secondary educational program; or |
(B) if the child is living with one party at that | ||
party's home and attending a post-secondary | ||
educational program as a non-resident student, in | ||
which case the living expenses include an amount that | ||
pays for the reasonable cost of the child's food, | ||
utilities, and transportation; and | ||
(5) the cost of books and other supplies necessary to | ||
attend college. | ||
(e) Sums may be ordered payable to the child, to either | ||
party, or to the educational institution, directly or through a | ||
special account or trust created for that purpose, as the court | ||
sees fit. | ||
(f) If educational expenses are ordered payable, each party | ||
and the child shall sign any consent necessary for the | ||
educational institution to provide a supporting party with | ||
access to the child's academic transcripts, records, and grade | ||
reports. The consent shall not apply to any non-academic | ||
records. Failure to execute the required consent may be a basis | ||
for a modification or termination of any order entered under | ||
this Section. Unless the court specifically finds that the | ||
child's safety would be jeopardized, each party is entitled to | ||
know the name of the educational institution the child attends. | ||
(g) The authority under this Section to make provision for | ||
educational expenses terminates when the child either: fails to | ||
maintain a cumulative "C" grade point average, except in the | ||
event of illness or other good cause shown; attains the age of |
23; receives a baccalaureate degree; or marries. A child's | ||
enlisting in the armed forces, being incarcerated, or becoming | ||
pregnant does not terminate the court's authority to make | ||
provisions for the educational expenses for the child under | ||
this Section. | ||
(h) An account established prior to the dissolution that is | ||
to be used for the child's post-secondary education, that is an | ||
account in a state tuition program under Section 529 of the | ||
Internal Revenue Code, or that is some other college savings | ||
plan, is to be considered by the court to be a resource of the | ||
child, provided that any post-judgment contribution made by a | ||
party to such an account is to be considered a contribution | ||
from that party. | ||
(i) The child is not a third party beneficiary to the | ||
settlement agreement or judgment between the parties after | ||
trial and is not entitled to file a petition for contribution. | ||
If the parties' settlement agreement describes the manner in | ||
which a child's educational expenses will be paid, or if the | ||
court makes an award pursuant to this Section, then the parties | ||
are responsible pursuant to that agreement or award for the | ||
child's educational expenses, but in no event shall the court | ||
consider the child a third party beneficiary of that provision. | ||
In the event of the death or legal disability of a party who | ||
would have the right to file a petition for contribution, the | ||
child of the party may file a petition for contribution. a | ||
person with a mental or physical disability a person with a |
mental or physical disability
| ||
(j) In making awards under this Section, or
pursuant to a | ||
petition or motion to decrease, modify, or terminate any such
| ||
award, the court shall consider all relevant factors that | ||
appear reasonable
and necessary, including:
| ||
(1) The present and future financial resources of both | ||
parties to meet their needs, including, but not limited to, | ||
savings for retirement.
| ||
(2) The standard of living the child would have enjoyed | ||
had the marriage not been dissolved.
| ||
(3) The financial resources of the child.
| ||
(4) The child's academic performance.
| ||
(k) The establishment of an obligation to pay under this | ||
Section is retroactive only to the date of filing a petition. | ||
The right to enforce a prior obligation to pay may be enforced | ||
either before or after the obligation is incurred. | ||
(Source: P.A. 99-90, eff. 1-1-16; 99-143, eff. 7-27-15; revised | ||
10-22-15.)
| ||
(750 ILCS 5/600) | ||
Sec. 600. Definitions. For purposes of this Part VI: | ||
(a) "Abuse" has the meaning ascribed to that term in | ||
Section 103 of the Illinois Domestic Violence Act of 1986. | ||
(b) "Allocation judgment" means a judgment allocating | ||
parental responsibilities. | ||
(c) "Caretaking functions" means tasks that involve |
interaction with a child or that direct, arrange, and supervise | ||
the interaction with and care of a child provided by others, or | ||
for obtaining the resources allowing for the provision of these | ||
functions. The term includes, but is not limited to, the | ||
following: | ||
(1) satisfying a child's nutritional needs; managing a | ||
child's bedtime and wake-up routines; caring for a child | ||
when the child is sick or injured; being attentive to a | ||
child's personal hygiene needs, including washing, | ||
grooming, and dressing; playing with a child and ensuring | ||
the child attends scheduled extracurricular activities; | ||
protecting a child's physical safety; and providing | ||
transportation for a child; | ||
(2) directing a child's various developmental needs, | ||
including the acquisition of motor and language skills, | ||
toilet training, self-confidence, and maturation; | ||
(3) providing discipline, giving instruction in | ||
manners, assigning and supervising chores, and performing | ||
other tasks that attend to a child's needs for behavioral | ||
control and self-restraint; | ||
(4) ensuring the child attends school, including | ||
remedial and special services appropriate to the child's | ||
needs and interests, communicating with teachers and | ||
counselors, and supervising homework; | ||
(5) helping a child develop and maintain appropriate | ||
interpersonal relationships with peers, siblings, and |
other family members; | ||
(6) ensuring the child attends medical appointments | ||
and is available for medical follow-up and meeting the | ||
medical needs of the child in the home; | ||
(7) providing moral and ethical guidance for a child; | ||
and | ||
(8) arranging alternative care for a child by a family | ||
member, babysitter, or other child care provider or | ||
facility, including investigating such alternatives, | ||
communicating with providers, and supervising such care. | ||
(d) "Parental responsibilities" means both parenting time | ||
and significant decision-making responsibilities with respect | ||
to a child. | ||
(e) "Parenting time" means the time during which a parent | ||
is responsible for exercising caretaking functions and | ||
non-significant decision-making responsibilities with respect | ||
to the child. | ||
(f) "Parenting plan" means a written agreement that | ||
allocates significant decision-making responsibilities, | ||
parenting time, or both. | ||
(g) "Relocation" means: | ||
(1) a change of residence from the child's current | ||
primary residence located in the county of Cook, DuPage, | ||
Kane, Lake, McHenry, or Will to a new residence within this | ||
State that is more than 25 miles from the child's current | ||
residence , as measured by an Internet mapping service ; |
(2) a change of residence from the child's current | ||
primary residence located in a county not listed in | ||
paragraph (1) to a new residence within this State that is | ||
more than 50 miles from the child's current primary | ||
residence , as measured by an Internet mapping service ; or | ||
(3)
a change of residence from the child's current | ||
primary residence to a residence outside the borders of | ||
this State that is more than 25 miles from the current | ||
primary residence , as measured by an Internet mapping | ||
service . | ||
(h) "Religious upbringing" means the choice of religion or | ||
denomination of a religion, religious schooling, religious | ||
training, or participation in religious customs or practices. | ||
(i) "Restriction of parenting time" means any limitation or | ||
condition placed on parenting time, including supervision. | ||
(j) "Right of first refusal" has the meaning provided in | ||
subsection (b) of Section 602.3 of this Act. | ||
(k) "Significant decision-making" means deciding issues of | ||
long-term importance in the life of a child. | ||
(l) "Step-parent" means a person married to a child's | ||
parent, including a person married to the child's parent | ||
immediately prior to the parent's death. | ||
(m) "Supervision" means the presence of a third party | ||
during a parent's exercise of parenting time.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) |
(750 ILCS 5/602.9) | ||
Sec. 602.9. Visitation by certain non-parents. | ||
(a) As used in this Section: | ||
(1) "electronic communication" means time that a | ||
grandparent, great-grandparent, sibling, or step-parent | ||
spends with a child during which the child is not in the | ||
person's actual physical custody, but which is facilitated | ||
by the use of communication tools such as the telephone, | ||
electronic mail, instant messaging, video conferencing or | ||
other wired or wireless technologies via the Internet, or | ||
another medium of communication; | ||
(2) "sibling" means a brother or sister either of the | ||
whole blood or the half blood, stepbrother, or stepsister | ||
of the minor child; | ||
(3) "step-parent" means a person married to a child's | ||
parent, including a person married to the child's parent | ||
immediately prior to the parent's death; and | ||
(4) "visitation" means in-person time spent between a | ||
child and the child's grandparent, great-grandparent, | ||
sibling, step-parent, or any person designated under | ||
subsection (d) of Section 602.7. In appropriate | ||
circumstances, visitation may include electronic | ||
communication under conditions and at times determined by | ||
the court. | ||
(b) General provisions. | ||
(1) An appropriate person, as identified in subsection |
(c) of this Section, may bring an action in circuit court | ||
by petition, or by filing a petition in a pending | ||
dissolution proceeding or any other proceeding that | ||
involves parental responsibilities or visitation issues | ||
regarding the child, requesting visitation with the child | ||
pursuant to this Section. If there is not a pending | ||
proceeding involving parental responsibilities or | ||
visitation with the child, the petition for visitation with | ||
the child must be filed in the county in which the child | ||
resides. Notice of the petition shall be given as provided | ||
in subsection (c) of Section 601.2 of this Act. | ||
(2) This Section does not apply to a child: | ||
(A) in whose interests a petition is pending under | ||
Section 2-13 of the Juvenile Court Act of 1987; or | ||
(B) in whose interests a petition to adopt by an | ||
unrelated person is pending under the Adoption Act; or | ||
(C) who has been voluntarily surrendered by the | ||
parent or parents, except for a surrender to the | ||
Department of Children and Family Services or a foster | ||
care facility; or | ||
(D) who has been previously adopted by an | ||
individual or individuals who are not related to the | ||
biological parents of the child or who is the subject | ||
of a pending adoption petition by an individual or | ||
individuals who are not related to the biological | ||
parents of the child; or |
(E) who has been relinquished pursuant to the | ||
Abandoned Newborn Infant Protection Act. | ||
(3) A petition for visitation may be filed under this | ||
Section only if there has been an unreasonable denial of | ||
visitation by a parent and the denial has caused the child | ||
undue mental, physical, or emotional harm. | ||
(4) There is a rebuttable presumption that a fit | ||
parent's actions and decisions regarding grandparent, | ||
great-grandparent, sibling, or step-parent visitation are | ||
not harmful to the child's mental, physical, or emotional | ||
health. The burden is on the party filing a petition under | ||
this Section to prove that the parent's actions and | ||
decisions regarding visitation will cause undue harm to the | ||
child's mental, physical, or emotional health. | ||
(5) In determining whether to grant visitation, the | ||
court shall consider the following: | ||
(A) the wishes of the child, taking into account | ||
the child's maturity and ability to express reasoned | ||
and independent preferences as to visitation; | ||
(B) the mental and physical health of the child; | ||
(C) the mental and physical health of the | ||
grandparent, great-grandparent, sibling, or | ||
step-parent; | ||
(D) the length and quality of the prior | ||
relationship between the child and the grandparent, | ||
great-grandparent, sibling, or step-parent; |
(E) the good faith of the party in filing the | ||
petition; | ||
(F) the good faith of the person denying | ||
visitation; | ||
(G) the quantity of the visitation time requested | ||
and the potential adverse impact that visitation would | ||
have on the child's customary activities; | ||
(H) any other fact that establishes that the loss | ||
of the relationship between the petitioner and the | ||
child is likely to unduly harm the child's mental, | ||
physical, or emotional health; and | ||
(I) whether visitation can be structured in a way | ||
to minimize the child's exposure to conflicts between | ||
the adults. | ||
(6) Any visitation rights granted under this Section | ||
before the filing of a petition for adoption of the child | ||
shall automatically terminate by operation of law upon the | ||
entry of an order terminating parental rights or granting | ||
the adoption of the child, whichever is earlier. If the | ||
person or persons who adopted the child are related to the | ||
child, as defined by Section 1 of the Adoption Act, any | ||
person who was related to the child as grandparent, | ||
great-grandparent, or sibling prior to the adoption shall | ||
have standing to bring an action under this Section | ||
requesting visitation with the child. | ||
(7) The court may order visitation rights for the |
grandparent, great-grandparent, sibling, or step-parent | ||
that include reasonable access without requiring overnight | ||
or possessory visitation. | ||
(c) Visitation by grandparents, great-grandparents, | ||
step-parents, and siblings. | ||
(1) Grandparents, great-grandparents, step-parents, | ||
and siblings of a minor child who is one year old or older | ||
may bring a petition for visitation and electronic | ||
communication under this Section if there is an | ||
unreasonable denial of visitation by a parent that causes | ||
undue mental, physical, or emotional harm to the child and | ||
if at least one of the following conditions exists: | ||
(A) the child's other parent is deceased or has | ||
been missing for at least 90 days. For the purposes of | ||
this subsection a parent is considered to be missing if | ||
the parent's location has not been determined and the | ||
parent has been reported as missing to a law | ||
enforcement agency; or | ||
(B) a parent of the child is incompetent as a | ||
matter of law; or | ||
(C) a parent has been incarcerated in jail or | ||
prison for a period in excess of 90 days immediately | ||
prior to the filing of the petition; or | ||
(D) the child's parents have been granted a | ||
dissolution of marriage or have been legally separated | ||
from each other or there is pending a dissolution |
proceeding involving a parent of the child or another | ||
court proceeding involving parental responsibilities | ||
or visitation of the child (other than an adoption | ||
proceeding of an unrelated child, a proceeding under | ||
Article II of the Juvenile Court Act of 1987, or an | ||
action for an order of protection under the Illinois | ||
Domestic Violence Act of 1986 or Article 112A of the | ||
Code of Criminal Procedure of 1963) and at least one | ||
parent does not object to the grandparent, | ||
great-grandparent, step-parent, or sibling having | ||
visitation with the child. The visitation of the | ||
grandparent, great-grandparent, step-parent, or | ||
sibling must not diminish the parenting time of the | ||
parent who is not related to the grandparent, | ||
great-grandparent, step-parent, or sibling seeking | ||
visitation; or | ||
(E) the child is born to parents who are not | ||
married to each other, the parents are not living | ||
together, and the petitioner is a grandparent, | ||
great-grandparent, step-parent, or sibling of the | ||
child, and parentage has been established by a court of | ||
competent jurisdiction. | ||
(2) In addition to the factors set forth in subdivision | ||
(b)(5) of this Section, the court should consider: | ||
(A) whether the child resided with the petitioner | ||
for at least 6 consecutive months with or without a |
parent present; | ||
(B) whether the child had frequent and regular | ||
contact or visitation with the petitioner for at least | ||
12 consecutive months; and | ||
(C) whether the grandparent, great-grandparent, | ||
sibling, or step-parent was a primary caretaker of the | ||
child for a period of not less than 6 consecutive | ||
months within the 24-month period immediately | ||
preceding the commencement of the proceeding. | ||
(3) An order granting visitation privileges under this | ||
Section is subject to subsections (c) and (d) of Section | ||
603.10. | ||
(4) A petition for visitation privileges may not be | ||
filed pursuant to this subsection (c) by the parents or | ||
grandparents of a parent of the child if parentage between | ||
the child and the related parent has not been legally | ||
established. | ||
(d) Modification of visitation orders. | ||
(1) Unless by stipulation of the parties, no motion to | ||
modify a grandparent, great-grandparent, sibling, or | ||
step-parent visitation order may be made earlier than 2 | ||
years after the date the order was filed, unless the court | ||
permits it to be made on the basis of affidavits that there | ||
is reason to believe the child's present environment may | ||
endanger seriously the child's mental, physical, or | ||
emotional health. |
(2) The court shall not modify an order that grants | ||
visitation to a grandparent, great-grandparent, sibling, | ||
or step-parent unless it finds by clear and convincing | ||
evidence, upon the basis of facts that have arisen since | ||
the prior visitation order or that were unknown to the | ||
court at the time of entry of the prior visitation order, | ||
that a change has occurred in the circumstances of the | ||
child or his or her parent, and that the modification is | ||
necessary to protect the mental, physical, or emotional | ||
health of the child. The court shall state in its decision | ||
specific findings of fact in support of its modification or | ||
termination of the grandparent, great-grandparent, | ||
sibling, or step-parent visitation. A child's parent may | ||
always petition to modify visitation upon changed | ||
circumstances when necessary to promote the child's best | ||
interests. | ||
(3) Notice of a motion requesting modification of a | ||
visitation order shall be provided as set forth in | ||
subsection (c) of Section 601.2 of this Act. | ||
(4) Attorney's fees and costs shall be assessed against | ||
a party seeking modification of the visitation order if the | ||
court finds that the modification action is vexatious and | ||
constitutes harassment. | ||
(e) No child's grandparent, great-grandparent, sibling, or | ||
step-parent, or any person to whom the court is considering | ||
granting visitation privileges pursuant to subsection (d) of |
Section 602.7, who was convicted of any offense involving an | ||
illegal sex act perpetrated upon a victim less than 18 years of | ||
age including, but not limited to, offenses for violations of | ||
Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, | ||
or Article 12 of the Criminal Code of 1961 or the Criminal Code | ||
of 2012, is entitled to visitation while incarcerated or while | ||
on parole, probation, conditional discharge, periodic | ||
imprisonment, or mandatory supervised release for that | ||
offense, and upon discharge from incarceration for a | ||
misdemeanor offense or upon discharge from parole, probation, | ||
conditional discharge, periodic imprisonment, or mandatory | ||
supervised release for a felony offense. Visitation shall be | ||
denied until the person successfully completes a treatment | ||
program approved by the court. Upon completion of treatment, | ||
the court may deny visitation based on the factors listed in | ||
subdivision (b)(5) of this Section 607 of this Act . | ||
(f) No child's grandparent, great-grandparent, sibling, or | ||
step-parent, or any person to whom the court is considering | ||
granting visitation privileges pursuant to subsection (d) of | ||
Section 602.7, may be granted visitation if he or she has been | ||
convicted of first degree murder of a parent, grandparent, | ||
great-grandparent, or sibling of the child who is the subject | ||
of the visitation request. Pursuant to a motion to modify | ||
visitation, the court shall revoke visitation rights | ||
previously granted to any person who would otherwise be | ||
entitled to petition for visitation rights under this Section |
or granted visitation under subsection (d) of Section 602.7, if | ||
the person has been convicted of first degree murder of a | ||
parent, grandparent, great-grandparent, or sibling of the | ||
child who is the subject of the visitation order. Until an | ||
order is entered pursuant to this subsection, no person may | ||
visit, with the child present, a person who has been convicted | ||
of first degree murder of the parent, grandparent, | ||
great-grandparent, or sibling of the child without the consent | ||
of the child's parent, other than a parent convicted of first | ||
degree murder as set forth herein, or legal guardian.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) | ||
(750 ILCS 5/602.10) | ||
Sec. 602.10. Parenting plan. | ||
(a) Filing of parenting plan. All parents, within 120 days | ||
after service or filing of any petition for allocation of | ||
parental responsibilities, must file with the court, either | ||
jointly or separately, a proposed parenting plan. The time | ||
period for filing a parenting plan may be extended by the court | ||
for good cause shown. If no appearance has been filed by the | ||
respondent, no parenting plan is required unless ordered by the | ||
court. | ||
(b) No parenting plan filed. In the absence of filing of | ||
one or more parenting plans, the court must conduct an | ||
evidentiary hearing to allocate parental responsibilities.
| ||
(c) Mediation. The court shall order mediation to assist |
the parents in formulating or modifying a parenting plan or in | ||
implementing a parenting plan unless the court determines that | ||
impediments to mediation exist. Costs under this subsection | ||
shall be allocated between the parties pursuant to the | ||
applicable statute or Supreme Court Rule.
| ||
(d) Parents' agreement on parenting plan. The parenting | ||
plan must be in writing and signed by both parents. The parents | ||
must submit the parenting plan to the court for approval within | ||
120 days after service of a petition for allocation of parental | ||
responsibilities or the filing of an appearance, except for | ||
good cause shown. Notwithstanding the provisions above, the | ||
parents may agree upon and submit a parenting plan at any time | ||
after the commencement of a proceeding until prior to the entry | ||
of a judgment of dissolution of marriage. The agreement is | ||
binding upon the court unless it finds, after considering the | ||
circumstances of the parties and any other relevant evidence | ||
produced by the parties, that the agreement is not in the best | ||
interests of the child unconscionable . If the court does not | ||
approve the parenting plan, the court shall make express | ||
findings of the reason or reasons for its refusal to approve | ||
the plan. The court, on its own motion, may conduct an | ||
evidentiary hearing to determine whether the parenting plan is | ||
in the child's best interests.
| ||
(e) Parents cannot agree on parenting plan. When parents | ||
fail to submit an agreed parenting plan, each parent must file | ||
and submit a written, signed parenting plan to the court within |
120 days after the filing of an appearance, except for good | ||
cause shown. The court's determination of parenting time should | ||
be based on the child's best interests. The filing of the plan | ||
may be excused by the court if: | ||
(1) the parties have commenced mediation for the | ||
purpose of formulating a parenting plan; or | ||
(2) the parents have agreed in writing to extend the | ||
time for filing a proposed plan and the court has approved | ||
such an extension; or | ||
(3) the court orders otherwise for good cause shown.
| ||
(f) Parenting plan contents. At a minimum, a parenting plan | ||
must set forth the following: | ||
(1) an allocation of significant decision-making | ||
responsibilities; | ||
(2) provisions for the child's living arrangements and | ||
for each parent's parenting time, including either: | ||
(A) a schedule that designates in which parent's | ||
home the minor child will reside on given days; or | ||
(B) a formula or method for determining such a | ||
schedule in sufficient detail to be enforced in a | ||
subsequent proceeding; | ||
(3) a mediation provision addressing any proposed | ||
reallocation of parenting time or regarding the terms of | ||
allocation of parental responsibilities, except that this | ||
provision is not required if one parent is allocated all | ||
significant decision-making responsibilities; |
(4) each parent's right of access to medical, dental, | ||
and psychological records (subject to the Mental Health and | ||
Developmental Disabilities Confidentiality Act), child | ||
care records, and school and extracurricular records, | ||
reports, and schedules, unless expressly denied by a court | ||
order or denied under Section 602.11 subsection (g) of | ||
Section 602.5 ; | ||
(5) a designation of the parent who will be denominated | ||
as the parent with the majority of parenting time for | ||
purposes of Section 606.10;
| ||
(6) the child's residential address for school | ||
enrollment purposes only; | ||
(7) each parent's residence address and phone number, | ||
and each parent's place of employment and employment | ||
address and phone number; | ||
(8) a requirement that a parent changing his or her | ||
residence provide at least 60 days prior written notice of | ||
the change to any other parent under the parenting plan or | ||
allocation judgment, unless such notice is impracticable | ||
or unless otherwise ordered by the court. If such notice is | ||
impracticable, written notice shall be given at the | ||
earliest date practicable. At a minimum, the notice shall | ||
set forth the following: | ||
(A) the intended date of the change of residence; | ||
and | ||
(B) the address of the new residence; |
(9) provisions requiring each parent to notify the | ||
other of emergencies, health care, travel plans, or other | ||
significant child-related issues; | ||
(10) transportation arrangements between the parents; | ||
(11) provisions for communications, including | ||
electronic communications, with the child during the other | ||
parent's parenting time; | ||
(12) provisions for resolving issues arising from a | ||
parent's future relocation, if applicable; | ||
(13) provisions for future modifications of the | ||
parenting plan, if specified events occur; | ||
(14) provisions for the exercise of the right of first | ||
refusal, if so desired, that are consistent with the best | ||
interests of the minor child; provisions in the plan for | ||
the exercise of the right of first refusal must include: | ||
(i) the length and kind of child-care requirements | ||
invoking the right of first refusal; | ||
(ii) notification to the other parent and for his | ||
or her response; | ||
(iii) transportation requirements; and | ||
(iv) any other provision related to the exercise of | ||
the right of first refusal necessary to protect and | ||
promote the best interests of the minor child; and | ||
(15) any other provision that addresses the child's | ||
best interests or that will otherwise facilitate | ||
cooperation between the parents. |
The personal information under items (6), (7), and (8) of | ||
this subsection is not required if there is evidence of or the | ||
parenting plan states that there is a history of domestic | ||
violence or abuse, or it is shown that the release of the | ||
information is not in the child's or parent's best interests. | ||
(g) The court shall conduct a trial or hearing to determine | ||
a plan which maximizes the child's relationship and access to | ||
both parents and shall ensure that the access and the overall | ||
plan are in the best interests of the child. The court shall | ||
take the parenting plans into consideration when determining | ||
parenting time and responsibilities at trial or hearing. | ||
(h) The court may consider, consistent with the best | ||
interests of the child as defined in Section 602.7 of this Act, | ||
whether to award to one or both of the parties the right of | ||
first refusal in accordance with Section 602.3 of this Act.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) | ||
(750 ILCS 5/602.11) | ||
Sec. 602.11. Access to health care, child care, and school | ||
records by parents. | ||
(a) Notwithstanding any other provision of law, access to | ||
records and information pertaining to a child including, but | ||
not limited to, medical, dental, child care, and school records | ||
shall not be denied to a parent for the reason that such parent | ||
has not been allocated parental responsibility ; however, no | ||
parent shall have access to the school records of a child if |
the parent is prohibited by an order of protection from | ||
inspecting or obtaining such records pursuant to the Domestic | ||
Violence Act of 1986 or the Code of Criminal Procedure of 1963 . | ||
A parent who is not allocated parenting time (not denied | ||
parental responsibility) is not entitled to access to the | ||
child's school or health care records unless a court finds that | ||
it is in the child's best interests to provide those records to | ||
the parent. | ||
(b) Health care professionals and health care providers | ||
shall grant access to health care records and information | ||
pertaining to a child to both parents, unless the health care | ||
professional or health care provider receives a court order or | ||
judgment that denies access to a specific individual. Except as | ||
may be provided by court order, no parent who is a named | ||
respondent in an order of protection issued pursuant to the | ||
Illinois Domestic Violence Act of 1986 or the Code of Criminal | ||
Procedure of 1963 shall have access to the health care records | ||
of a child who is a protected person under the order of | ||
protection provided the health care professional or health care | ||
provider has received a copy of the order of protection. Access | ||
to health care records is denied under this Section for as long | ||
as the order of protection remains in effect as specified in | ||
the order of protection or as otherwise determined by court | ||
order.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) |
(750 ILCS 5/604.10) | ||
Sec. 604.10. Interviews; evaluations; investigation. | ||
(a) Court's interview of child. The court may interview the | ||
child in chambers to ascertain the child's wishes as to the | ||
allocation of parental responsibilities. Counsel shall be | ||
present at the interview unless otherwise agreed upon by the | ||
parties. The entire interview shall be recorded by a court | ||
reporter. The transcript of the interview shall be filed under | ||
seal and released only upon order of the court. The cost of the | ||
court reporter and transcript shall be paid by the court. | ||
(b) Court's professional. The court may seek the advice of | ||
any professional, whether or not regularly employed by the | ||
court, to assist the court in determining the child's best | ||
interests. The advice to the court shall be in writing and sent | ||
by the professional to counsel for the parties and to the court | ||
not later than 60 days before the date on which the trial court | ||
reasonably anticipates the hearing on the allocation of | ||
parental
responsibilities will commence. The court may review | ||
the writing upon receipt , under seal . The writing may be | ||
admitted into evidence without testimony from its author, | ||
unless a party objects. A professional consulted by the court | ||
shall testify as the court's witness and be subject to | ||
cross-examination. The court shall order all costs and fees of | ||
the professional to be paid by one or more of the parties, | ||
subject to reallocation in accordance with subsection (a) of | ||
Section 508. |
The professional's report must, at a minimum, set forth the | ||
following: | ||
(1) a description of the procedures employed during the | ||
evaluation; | ||
(2) a report of the data collected; | ||
(3) all test results; | ||
(4) any conclusions of the professional relating to the | ||
allocation of parental responsibilities under Sections | ||
602.5 and 602.7; | ||
(5) any recommendations of the professional concerning | ||
the allocation of parental responsibilities or the child's | ||
relocation; and | ||
(6) an explanation of any limitations in the evaluation | ||
or any reservations of the professional regarding the | ||
resulting recommendations. | ||
The professional shall send his or her report to all | ||
attorneys of record, and to any party not represented, at least | ||
60 days before the hearing on the allocation of parental | ||
responsibilities. The court shall examine and consider the | ||
professional's report only after it has been admitted into | ||
evidence or after the parties have waived their right to | ||
cross-examine the professional. | ||
(c) Evaluation by a party's retained professional. In a | ||
proceeding to allocate parental responsibilities or to | ||
relocate a child, upon notice and motion made by a parent or | ||
any party to the litigation within a reasonable time before |
trial, the court shall order an evaluation to assist the court | ||
in determining the child's best interests unless the court | ||
finds that an evaluation under this Section is untimely or not | ||
in the best interests of the child. The evaluation may be in | ||
place of or in addition to any advice given to the court by a | ||
professional under subsection (b). A motion for an evaluation | ||
under this subsection must, at a minimum, identify the proposed | ||
evaluator and the evaluator's specialty or discipline. An order | ||
for an evaluation under this subsection must set forth the | ||
evaluator's name, address, and telephone number and the time, | ||
place, conditions, and scope of the evaluation. No person shall | ||
be required to travel an unreasonable distance for the | ||
evaluation. The party requesting the evaluation shall pay the | ||
evaluator's fees and costs unless otherwise ordered by the | ||
court. | ||
The evaluator's report must, at a minimum, set forth the | ||
following: | ||
(1) a description of the procedures employed during the | ||
evaluation; | ||
(2) a report of the data collected; | ||
(3) all test results; | ||
(4) any conclusions of the evaluator relating to the | ||
allocation of parental responsibilities under Sections | ||
602.5 and 602.7; | ||
(5) any recommendations of the evaluator concerning | ||
the allocation of parental responsibilities or the child's |
relocation; and | ||
(6) an explanation of any limitations in the evaluation | ||
or any reservations of the evaluator regarding the | ||
resulting recommendations. | ||
A party who retains a professional to conduct an evaluation | ||
under this subsection shall cause the evaluator's written | ||
report to be sent to the attorneys of record no less than 60 | ||
days before the hearing on the allocation of parental | ||
responsibilities, unless otherwise ordered by the court; if a | ||
party fails to comply with this provision, the court may not | ||
admit the evaluator's report into evidence and may not allow | ||
the evaluator to testify. | ||
The party calling an evaluator to testify at trial shall | ||
disclose the evaluator as a controlled expert witness in | ||
accordance with the Supreme Court Rules. | ||
Any party to the litigation may call the evaluator as a | ||
witness. That party shall pay the evaluator's fees and costs | ||
for testifying, unless otherwise ordered by the court. | ||
(d) Investigation. Upon notice and a motion by a parent or | ||
any party to the litigation, or upon the court's own motion, | ||
the court may order an investigation and report to assist the | ||
court in allocating parental responsibilities. The
| ||
investigation may be made by any agency, private entity, or | ||
individual deemed appropriate by the court. The agency, private | ||
entity, or individual appointed by the court must have | ||
expertise in the area of allocation of parental |
responsibilities. The court shall specify the purpose and scope | ||
of the investigation. | ||
The investigator's report must, at a minimum, set forth the | ||
following: | ||
(1) a description of the procedures employed during the | ||
investigation; | ||
(2) a report of the data collected; | ||
(3) all test results; | ||
(4) any conclusions of the investigator relating to the | ||
allocation of parental responsibilities under Sections | ||
602.5 and 602.7; | ||
(5) any recommendations of the investigator concerning | ||
the allocation of parental responsibilities or the child's | ||
relocation; and | ||
(6) an explanation of any limitations in the | ||
investigation or any reservations of the investigator | ||
regarding the resulting recommendations. | ||
The investigator shall send his or her report to all | ||
attorneys of record, and to any party not represented, at least | ||
60 days before the hearing on the allocation of parental | ||
responsibilities. The court shall examine and consider the | ||
investigator's report only after it has been admitted into | ||
evidence or after the parties have waived their right to | ||
cross-examine the investigator. | ||
The investigator shall make available to all attorneys of | ||
record, and to any party not represented, the investigator's |
file, and the names and addresses of all persons whom the | ||
investigator has consulted, except that if such disclosure | ||
would risk abuse to the party or any member of the party's | ||
immediate family or household or reveal the confidential | ||
address of a shelter for domestic violence victims, that | ||
address may be omitted from the report. Any party to the | ||
proceeding may call the investigator, or any person consulted | ||
by the investigator as a court's witness, for | ||
cross-examination. No fees shall be paid for any investigation | ||
by a governmental agency. The fees incurred by any other | ||
investigator shall be allocated in accordance with Section 508.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) | ||
(750 ILCS 5/606.5) | ||
Sec. 606.5. Hearings. | ||
(a) Proceedings to allocate parental responsibilities | ||
shall receive priority in being set for hearing. | ||
(a-5) The court may tax as costs the payment of necessary | ||
travel and other expenses incurred by any person whose presence | ||
at the hearing the court deems necessary to determine the best | ||
interest of the child. | ||
(b) The court, without a jury, shall determine questions of | ||
law and fact. | ||
(c) Previous statements made by the child relating to any | ||
allegations that the child is an abused or neglected child | ||
within the meaning of the Abused and Neglected Child Reporting |
Act, or an abused or neglected minor within the meaning of the | ||
Juvenile Court Act of 1987, shall be admissible in evidence in | ||
a hearing concerning allocation of parental responsibilities | ||
in accordance with Section 11.1 of the Abused and Neglected | ||
Child Reporting Act. No such statement, however, if | ||
uncorroborated and not subject to cross-examination, shall be | ||
sufficient in itself to support a finding of abuse or neglect.
| ||
(d) If the court finds that a public hearing may be | ||
detrimental to the child's best interests, the court shall | ||
exclude the public from the hearing, but the court may admit | ||
any person having: | ||
(1) a direct and legitimate interest in the case; or | ||
(2) a legitimate educational or research interest in | ||
the work of the court, but only with the permission of both | ||
parties and subject to court approval. | ||
(e) The court may make an appropriate order sealing the | ||
records of any interview, report, investigation, or testimony.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) | ||
(750 ILCS 5/607.5)
| ||
Sec. 607.5. Abuse of allocated parenting time. | ||
(a) The court shall provide an expedited procedure for the | ||
enforcement of allocated parenting time. | ||
(b) An action for the enforcement of allocated parenting | ||
time may be commenced by a parent or a person appointed under | ||
Section 506 by filing a petition setting forth: (i) the |
petitioner's name and residence address or mailing address, | ||
except that if the petition states that disclosure of | ||
petitioner's address would risk abuse of petitioner or any | ||
member of petitioner's family or household or reveal the | ||
confidential address of a shelter for domestic violence | ||
victims, that address may be omitted from the petition; (ii) | ||
the respondent's name and place of residence, place of | ||
employment, or mailing address; (iii) the terms of the | ||
parenting plan or allocation judgment then in effect; (iv) the | ||
nature of the violation of the allocation of parenting time, | ||
giving dates and other relevant information; and (v) that a | ||
reasonable attempt was made to resolve the dispute. | ||
(c) If the court finds by a preponderance of the evidence | ||
that a parent has not complied with allocated parenting time | ||
according to an approved parenting plan or a court order, the | ||
court, in the child's best interests, shall issue an order that | ||
may include one or more of the following: | ||
(1) an imposition of additional terms and conditions | ||
consistent with the court's previous allocation of | ||
parenting time or other order; | ||
(2) a requirement that either or both of the parties | ||
attend a parental education program at the expense of the | ||
non-complying parent; | ||
(3) upon consideration of all relevant factors, | ||
particularly a history or possibility of domestic | ||
violence, a requirement that the parties participate in |
family or individual counseling, the expense of which shall | ||
be allocated by the court; if counseling is ordered, all | ||
counseling sessions shall be confidential, and the | ||
communications in counseling shall not be used in any | ||
manner in litigation nor relied upon by an expert appointed | ||
by the court or retained by any party; | ||
(4) a requirement that the non-complying parent post a | ||
cash bond or other security to ensure future compliance, | ||
including a provision that the bond or other security may | ||
be forfeited to the other parent for payment of expenses on | ||
behalf of the child as the court shall direct; | ||
(5) a requirement that makeup parenting time be | ||
provided for the aggrieved parent or child under the | ||
following conditions: | ||
(A) that the parenting time is of the same type and | ||
duration as the parenting time that was denied, | ||
including but not limited to parenting time during | ||
weekends, on holidays, and on weekdays and during times | ||
when the child is not in school; | ||
(B) that the parenting time is made up within 6 | ||
months after the noncompliance occurs, unless the | ||
period of time or holiday cannot be made up within 6 | ||
months, in which case the parenting time shall be made | ||
up within one year after the noncompliance occurs; | ||
(6) a finding that the non-complying parent is in | ||
contempt of court; |
(7) an imposition on the non-complying parent of an | ||
appropriate civil fine per incident of denied parenting | ||
time; | ||
(8) a requirement that the non-complying parent | ||
reimburse the other parent for all reasonable expenses | ||
incurred as a result of the violation of the parenting plan | ||
or court order; and | ||
(9) any other provision that may promote the child's | ||
best interests. | ||
(d) In addition to any other order entered under subsection | ||
(c), except for good cause shown, the court shall order a | ||
parent who has failed to provide allocated parenting time or to | ||
exercise allocated parenting time to pay the aggrieved party | ||
his or her reasonable attorney's fees, court costs, and | ||
expenses associated with an action brought under this Section. | ||
If the court finds that the respondent in an action brought | ||
under this Section has not violated the allocated parenting | ||
time, the court may order the petitioner to pay the | ||
respondent's reasonable attorney's fees, court costs, and | ||
expenses incurred in the action. | ||
(e) Nothing in this Section precludes a party from | ||
maintaining any other action as provided by law. | ||
(f) When the court issues an order holding a party in | ||
contempt for violation of a parenting time order and finds that | ||
the party engaged in parenting time abuse, the court may order | ||
one or more of the following: |
(1) Suspension of a party's Illinois driving | ||
privileges pursuant to Section 7-703 of the Illinois | ||
Vehicle Code until the court determines that the party is | ||
in compliance with the parenting time order. The court may | ||
also order that a party be issued a family financial | ||
responsibility driving permit that would allow limited | ||
driving privileges for employment, for medical purposes, | ||
and to transport a child to or from scheduled parenting | ||
time in order to comply with a parenting time order in | ||
accordance with subsection (a-1) of Section 7-702.1 of the | ||
Illinois Vehicle Code. | ||
(2) Placement of a party on probation with such | ||
conditions of probation as the court deems advisable. | ||
(3) Sentencing of a party to periodic imprisonment for | ||
a period not to exceed 6 months; provided, that the court | ||
may permit the party to be released for periods of time | ||
during the day or night to: | ||
(A) work; or | ||
(B) conduct a business or other self-employed | ||
occupation. | ||
(4) Find that a party in engaging in parenting time | ||
abuse is guilty of a petty offense and should be fined an | ||
amount of no more than $500 for each finding of parenting | ||
time abuse. | ||
(g) When the court issues an order holding a party in | ||
contempt of court for violation of a parenting order, the clerk |
shall transmit a copy of the contempt order to the sheriff of | ||
the county. The sheriff shall furnish a copy of each contempt | ||
order to the Department of State Police on a daily basis in the | ||
form and manner required by the Department. The Department | ||
shall maintain a complete record and index of the contempt | ||
orders and make this data available to all local law | ||
enforcement agencies. | ||
(h) Nothing contained in this Section shall be construed to | ||
limit the court's contempt power.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) | ||
(750 ILCS 5/607.6 new) | ||
Sec. 607.6. Counseling. | ||
(a) The court may order individual counseling for the | ||
child, family counseling for one or more of the parties and the | ||
child, or parental education for one or more of the parties, if | ||
it finds one or more of the following: | ||
(1) both parents or all parties agree to the order; | ||
(2) the child's physical health is endangered or that | ||
the child's emotional development is impaired; | ||
(3) abuse of allocated parenting time under Section | ||
607.5 has occurred; or | ||
(4) one or both of the parties have violated the | ||
allocation judgment with regard to conduct affecting or in | ||
the presence of the child. | ||
(b) The court may apportion the costs of counseling between |
the parties as appropriate. | ||
(c) The remedies provided in this Section are in addition | ||
to, and do not diminish or abridge in any way, the court's | ||
power to exercise its authority through contempt or other | ||
proceedings. | ||
(d) All counseling sessions shall be confidential. The | ||
communications in counseling shall not be used in any manner in | ||
litigation nor relied upon by any expert appointed by the court | ||
or retained by any party. | ||
(750 ILCS 5/610.5) | ||
Sec. 610.5. Modification. | ||
(a) Unless by stipulation of the parties or except as | ||
provided in subsection (b) of this Section or Section 603.10 of | ||
this Act, no motion to modify an order allocating parental | ||
decision-making responsibilities , not including parenting | ||
time, may be made earlier than 2 years after its date, unless | ||
the court permits it to be made on the basis of affidavits that | ||
there is reason to believe the child's present environment may | ||
endanger seriously his or her mental, moral, or physical health | ||
or significantly impair the child's emotional development. | ||
Parenting time may be modified at any time, without a showing | ||
of serious endangerment, upon a showing of changed | ||
circumstances that necessitates modification to serve the best | ||
interests of the child. | ||
(b) (Blank). A motion to modify an order allocating |
parental responsibilities may be made at any time by a party | ||
who has been informed of the existence of facts requiring | ||
notice to be given under Section 609.5 of this Act. | ||
(c) Except in a case concerning the modification of any | ||
restriction of parental responsibilities under Section 603.10,
| ||
the court shall modify a parenting plan or allocation judgment | ||
when necessary to serve the child's best interests if the court | ||
finds, by a preponderance of the evidence, that on the basis of | ||
facts that have arisen since the entry of the existing | ||
parenting plan or allocation judgment or were not anticipated | ||
therein, a substantial change has occurred in the circumstances | ||
of the child or of either parent and that a modification is | ||
necessary to serve the child's best interests. | ||
(d) The court shall modify a parenting plan or allocation | ||
judgment in accordance with a parental agreement, unless it | ||
finds that the modification is not in the child's best | ||
interests. | ||
(e) The court may modify a parenting plan or allocation | ||
judgment without a showing of changed circumstances if (i) the | ||
modification is in the child's best interests; and (ii) any of | ||
the following are proven as to the modification: | ||
(1) the modification reflects the actual arrangement | ||
under which the child has been receiving care, without | ||
parental objection, for the 6 months preceding the filing | ||
of the petition for modification, provided that the | ||
arrangement is not the result of a parent's acquiescence |
resulting from circumstances that negated the parent's | ||
ability to give meaningful consent; | ||
(2) the modification constitutes a minor modification | ||
in the parenting plan or allocation judgment; | ||
(3) the modification is necessary to modify an agreed | ||
parenting plan or allocation judgment that the court would | ||
not have ordered or approved under Section 602.5 or 602.7 | ||
had the court been aware of the circumstances at the time | ||
of the order or approval; or | ||
(4) the parties agree to the modification. | ||
(f) Attorney's fees and costs shall be assessed against a | ||
party seeking
modification if the court finds that the | ||
modification action is vexatious or constitutes harassment. If | ||
the court finds that a parent has repeatedly filed frivolous | ||
motions for modification, the court may bar the parent from | ||
filing a motion for modification for a period of time.
| ||
(Source: P.A. 99-90, eff. 1-1-16 .) | ||
Section 10. The Illinois Parentage Act of 2015 is amended | ||
by changing Section 103 and the heading of Article 7 and by | ||
adding Sections 701, 702, 703, 704, 705, 706, 707, 708, 709, | ||
and 710 as follows: | ||
(750 ILCS 46/103)
| ||
Sec. 103. Definitions. In this Act: | ||
(a) "Acknowledged father" means a man who has established a |
father-child relationship under Article 3.
| ||
(b) "Adjudicated father" means a man who has been | ||
adjudicated by a court of competent jurisdiction, or as | ||
authorized under Article X of the Illinois Public Aid Code, to | ||
be the father of a child.
| ||
(c) "Alleged father" means a man who alleges himself to be, | ||
or is alleged to be, the biological father or a possible | ||
biological father of a child, but whose paternity has not been | ||
established. The term does not include:
| ||
(1) a presumed parent or acknowledged father; or | ||
(2) a man whose parental rights have been terminated or
| ||
declared not to exist.
| ||
(d) "Assisted reproduction" means a method of achieving a | ||
pregnancy though an artificial insemination or an embryo | ||
transfer and includes gamete and embryo donation. "Assisted | ||
reproduction" does not include any pregnancy achieved through | ||
sexual intercourse (Reserved) . | ||
(e) "Child" means an individual of any age whose parentage | ||
may be established under this Act.
| ||
(f) "Combined paternity index" means the likelihood of | ||
paternity calculated by computing the ratio between:
| ||
(1) the likelihood that the tested man is the father, | ||
based on the genetic markers of the tested man, mother, and | ||
child, conditioned on the hypothesis that the tested man is | ||
the father of the child; and
| ||
(2) the likelihood that the tested man is not the |
father, based on the genetic markers of the tested man, | ||
mother, and child, conditioned on the hypothesis that the | ||
tested man is not the father of the child and that the | ||
father is of the same ethnic or racial group as the tested | ||
man.
| ||
(g) "Commence" means to file the initial pleading seeking | ||
an adjudication of parentage in the circuit court of this | ||
State.
| ||
(h) "Determination of parentage" means the establishment | ||
of the parent-child relationship by the signing of a voluntary | ||
acknowledgment under Article 3 of this Act or adjudication by | ||
the court or as authorized under Article X of the Illinois | ||
Public Aid Code.
| ||
(i) "Donor" means an individual who participates in an | ||
assisted reproductive technology
arrangement by providing | ||
gametes and relinquishes all rights and
responsibilities to the | ||
gametes so that another individual or individuals may
become | ||
the legal parent or parents of any resulting child. "Donor" | ||
does not include a spouse in any
assisted reproductive | ||
technology arrangement in which his or her spouse will parent | ||
any
resulting child (Reserved) . | ||
(j) "Ethnic or racial group" means, for purposes of genetic | ||
testing, a recognized group that an individual identifies as | ||
all or part of the individual's ancestry or that is so | ||
identified by other information.
| ||
(k) "Gamete" means either a sperm or an egg.
|
(l) "Genetic testing" means an analysis of genetic markers | ||
to exclude or identify a man as the father or a woman as the | ||
mother of a child as provided in Article 4 of this Act.
| ||
(m) "Gestational mother" means an adult woman who gives | ||
birth to a child pursuant to the terms of a valid gestational | ||
surrogacy contract.
| ||
(n) "Parent" means an individual who has established a | ||
parent-child relationship under Section 201 of this Act.
| ||
(o) "Parent-child relationship" means the legal | ||
relationship between a child and a parent of the child. | ||
(p) "Presumed parent" means an individual who, by operation | ||
of law under Section 204 of this Act, is recognized as the | ||
parent of a child until that status is rebutted or confirmed in | ||
a judicial or administrative proceeding.
| ||
(q) "Probability of paternity" means the measure, for the | ||
ethnic or racial group to which the alleged father belongs, of | ||
the probability that the man in question is the father of the | ||
child, compared with a random, unrelated man of the same ethnic | ||
or racial group, expressed as a percentage incorporating the | ||
combined paternity index and a prior probability.
| ||
(r) "Record" means information that is inscribed on a | ||
tangible medium or that is stored in an electronic or other | ||
medium and is retrievable in perceivable form.
| ||
(s) "Signatory" means an individual who authenticates a | ||
record and is bound by its terms.
| ||
(t) "State" means a state of the United States, the |
District of Columbia, Puerto Rico, the United States Virgin | ||
Islands, or any territory or insular possession subject to the | ||
jurisdiction of the United States.
| ||
(u) "Substantially similar legal relationship" means a | ||
relationship recognized in this State under Section 60 of the | ||
Illinois Religious Freedom Protection and Civil Union Act. | ||
(v) "Support-enforcement agency" means a public official | ||
or agency authorized to seek:
| ||
(1) enforcement of support orders or laws relating to | ||
the duty of support;
| ||
(2) establishment or modification of child support;
| ||
(3) determination of parentage; or
| ||
(4) location of child-support obligors and their | ||
income and assets.
| ||
(Source: P.A. 99-85, eff. 1-1-16 .) | ||
(750 ILCS 46/Art. 7 heading) | ||
ARTICLE 7. CHILD OF ASSISTED REPRODUCTION (RESERVED)
| ||
(Source: P.A. 99-85, eff. 1-1-16.) | ||
(750 ILCS 46/701 new) | ||
Sec. 701. Scope of Article. Except as described in this | ||
Article, this Article does not apply to the birth of a child | ||
conceived by means of sexual intercourse or a child born as a | ||
result of a valid gestational surrogacy arrangement meeting the | ||
requirements of the Gestational Surrogacy Act. |
(750 ILCS 46/702 new) | ||
Sec. 702. Parental status of donor. Except as provided in | ||
this Act, a donor is not a parent of a child conceived by means | ||
of assisted reproduction. | ||
(750 ILCS 46/703 new) | ||
Sec. 703. Parentage of child of assisted reproduction. | ||
(a) Any individual who is an intended parent as defined by | ||
this Act is the legal parent of any resulting child. If the | ||
donor and the intended parent have been represented by | ||
independent counsel and entered into a written legal agreement | ||
in which the donor relinquishes all rights and responsibilities | ||
to any resulting child, the intended parent is the parent of | ||
the child. An agreement under this subsection shall be entered | ||
into prior to any insemination or embryo transfer. | ||
(b) If a person makes an anonymous gamete donation without | ||
a designated intended parent at the time of the gamete | ||
donation, the intended parent is the parent of any resulting | ||
child if the anonymous donor relinquished his or her parental | ||
rights in writing at the time of donation. The written | ||
relinquishment shall be directed to the entity to which the | ||
donor donated his or her gametes. | ||
(c) An intended parent may seek a court order confirming | ||
the existence of a parent-child relationship prior to or after | ||
the birth of a child based on compliance with subsection (a) or |
(b) of this Section. | ||
(d) If the requirements of subsection (a) of this Section | ||
are not met, or subsection (b) of this Section is found by a | ||
court to be inapplicable, a court of competent jurisdiction | ||
shall determine parentage based on evidence of the parties' | ||
intent at the time of donation. | ||
(750 ILCS 46/704 new) | ||
Sec. 704. Withdrawal of consent of intended parent or | ||
donor. An intended parent or donor may withdraw consent to use | ||
his or her gametes in a writing or legal pleading with notice | ||
to the other participants. An intended parent who withdraws | ||
consent under this Section prior to the insemination or embryo | ||
transfer is not a parent of any resulting child. If a donor | ||
withdraws consent to his or her donation prior to the | ||
insemination or the combination of gametes, the intended parent | ||
is not the parent of any resulting child. | ||
(750 ILCS 46/705 new) | ||
Sec. 705. Parental status of deceased individual. If an | ||
individual consents in a writing to be a parent of any child | ||
born of his or her gametes posthumously, and dies before the | ||
insemination of the individual's gametes or embryo transfer, | ||
the deceased individual is a parent of any resulting child born | ||
within 36 months of the death of the deceased individual. |
(750 ILCS 46/706 new) | ||
Sec. 706. Inheritance rights of posthumous child. | ||
Notwithstanding Section 705, the rights of a posthumous child | ||
to an inheritance or to property under an instrument shall be | ||
governed by the provisions of the Probate Act of 1975. | ||
(750 ILCS 46/707 new) | ||
Sec. 707. Burden of proof. Parentage established under | ||
Section 703, a withdrawal of consent under Section 704, or a | ||
proceeding to declare the non-existence of the parent-child | ||
relationship under Section 708 of this Act must be proven by | ||
clear and convincing evidence. | ||
(750 ILCS 46/708 new) | ||
Sec. 708. Limitation on proceedings to declare the | ||
non-existence of the parent-child relationship. An action to | ||
declare the non-existence of the parent-child relationship | ||
under this Article shall be barred if brought more than 2 years | ||
following the birth of the child. | ||
(750 ILCS 46/709 new) | ||
Sec. 709. Establishment of parentage; requirements of | ||
Gestational Surrogacy Act. | ||
(a) In the event of gestational surrogacy, in addition to | ||
the requirements of the Gestational Surrogacy Act, a | ||
parent-child relationship is established between a person and a |
child if all of the following conditions are met prior to the | ||
birth of the child: | ||
(1) The gestational surrogate certifies that she did | ||
not provide a gamete for the child, and that she is | ||
carrying the child for the intended parents. | ||
(2) The spouse, if any, of the gestational surrogate | ||
certifies that he or she did not provide a gamete for the | ||
child. | ||
(3) Each intended parent certifies that the child being | ||
carried by the gestational surrogate was conceived using at | ||
least one of the intended parents' gametes. | ||
(4) A physician certifies that the child being carried | ||
by the gestational surrogate was conceived using the gamete | ||
or gametes of at least one of the intended parents, and | ||
that neither the gestational surrogate nor the gestational | ||
surrogate's spouse, if any, provided gametes for the child | ||
being carried by the gestational surrogate. | ||
(5) The attorneys for the intended parents and the | ||
gestational surrogate each certify that the parties | ||
entered into a gestational surrogacy agreement intended to | ||
satisfy the requirements of the Gestational Surrogacy Act. | ||
(b) All certifications under this Section shall be in | ||
writing and witnessed by 2 competent adults who are not the | ||
gestational surrogate, gestational surrogate's spouse, if any, | ||
or an intended parent. Certifications shall be on forms | ||
prescribed by the Illinois Department of Public Health and |
shall be executed prior to the birth of the child. All | ||
certifications shall be provided, prior to the birth of the | ||
child, to both the hospital where the gestational surrogate | ||
anticipates the delivery will occur and to the Illinois | ||
Department of Public Health. | ||
(c) Parentage established in accordance with this Section | ||
has the full force and effect of a judgment entered under this | ||
Act. | ||
(d) The Illinois Department of Public Health shall adopt | ||
rules to implement this Section. | ||
(750 ILCS 46/710 new) | ||
Sec. 710. Applicability. This Article applies only to | ||
assisted reproductive arrangements or gestational surrogacy | ||
contracts entered into after the effective date of this | ||
amendatory Act of the 99th General Assembly. | ||
Section 12. The Gestational Surrogacy Act is amended by | ||
changing Sections 20 and 70 as follows: | ||
(750 ILCS 47/20)
| ||
Sec. 20. Eligibility. | ||
(a) A gestational surrogate shall be deemed to have
| ||
satisfied the requirements of this Act if she has met the
| ||
following requirements at the time the gestational
surrogacy | ||
contract is executed: |
(1) she is at least 21 years of age; | ||
(2) she has given birth to at least one child; | ||
(3) she has completed a medical evaluation; | ||
(4) she has completed a mental health evaluation; | ||
(5) she has undergone legal consultation with | ||
independent legal counsel regarding the terms of the | ||
gestational surrogacy contract and the potential legal | ||
consequences of the gestational surrogacy; and | ||
(6) she has obtained a health insurance policy that | ||
covers major medical treatments and hospitalization and | ||
the health insurance policy has a term that extends | ||
throughout the duration of the expected pregnancy and for 8 | ||
weeks after the birth of the child; provided, however, that | ||
the policy may be procured by the intended parents on | ||
behalf of the gestational surrogate pursuant to the | ||
gestational surrogacy contract. | ||
(b) The intended parent or parents shall be deemed to have | ||
satisfied the requirements of this Act if he, she, or they have | ||
met the following requirements at the time the gestational | ||
surrogacy contract is executed: | ||
(1) he, she, or they contribute at least one of the | ||
gametes resulting in a pre-embryo that the gestational | ||
surrogate will attempt to carry to term; | ||
(2) he, she, or they have a medical need for the | ||
gestational surrogacy as evidenced by a qualified | ||
physician's affidavit attached to the gestational |
surrogacy contract and as required by the Illinois | ||
Parentage Act of 2015 1984 ; | ||
(3) he, she, or they have completed a mental health | ||
evaluation; and | ||
(4) he, she, or they have undergone legal consultation | ||
with independent legal counsel regarding the terms of the | ||
gestational surrogacy contract and the potential legal | ||
consequences of the gestational surrogacy.
| ||
(Source: P.A. 93-921, eff. 1-1-05.) | ||
(750 ILCS 47/70)
| ||
Sec. 70. Irrevocability. No action to invalidate a | ||
gestational surrogacy meeting the requirements of subsection | ||
(d) of Section 15 of this Act or to challenge the rights of | ||
parentage established pursuant to Section 15 of this Act and | ||
the Illinois Parentage Act of 2015 1984 shall be commenced | ||
after 12 months from the date of birth of the child.
| ||
(Source: P.A. 93-921, eff. 1-1-05.)
| ||
(750 ILCS 40/Act rep.)
| ||
Section 15. The Illinois Parentage Act is repealed.
|