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Public Act 92-0306
SB433 Enrolled SRS92SB0019JJap
AN ACT concerning family law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 503 as follows:
(750 ILCS 5/503) (from Ch. 40, par. 503)
Sec. 503. Disposition of property.
(a) For purposes of this Act, "marital property" means
all property acquired by either spouse subsequent to the
marriage, except the following, which is known as
"non-marital property":
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property
acquired before the marriage or in exchange for property
acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment
of legal separation;
(4) property excluded by valid agreement of the
parties;
(5) any judgment or property obtained by judgment
awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a
method listed in paragraphs (1) through (6) of this
subsection, irrespective of whether the increase results
from a contribution of marital property, non-marital
property, the personal effort of a spouse, or otherwise,
subject to the right of reimbursement provided in
subsection (c) of this Section; and
(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.
(b)(1) For purposes of distribution of property pursuant
to this Section, all property acquired by either spouse after
the marriage and before a judgment of dissolution of marriage
or declaration of invalidity of marriage, including
non-marital property transferred into some form of
co-ownership between the spouses, is presumed to be marital
property, 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 presumption of marital property is
overcome by a showing that the property was acquired by a
method listed in subsection (a) of this Section.
(2) For purposes of distribution of property pursuant to
this Section, all pension benefits (including pension
benefits under the Illinois Pension Code) acquired by either
spouse after the marriage and before a judgment of
dissolution of marriage or declaration of invalidity of the
marriage are presumed to be marital property, regardless of
which spouse participates in the pension plan. The
presumption that these pension benefits are marital property
is overcome by a showing 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 granted to either spouse after the
marriage and before a judgment of dissolution of marriage 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 were
acquired by a method listed in subsection (a) of this
Section. The court shall allocate stock options 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 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 including but not limited to whether the
grant was for past, present, or future efforts, or any
combination thereof.
(ii) The length of time from the grant of the
option to the time the option is exercisable.
(c) Commingled marital and non-marital property shall be
treated in the following manner, unless otherwise agreed by
the spouses:
(1) When marital and non-marital property are
commingled by contributing one estate of property into
another resulting in a loss of identity of the
contributed property, the classification of the
contributed property is transmuted to the estate
receiving the contribution, subject to the provisions of
paragraph (2) of this subsection; provided that 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.
(2) When one estate of property makes a
contribution to another estate of property, or when a
spouse contributes personal effort to non-marital
property, the contributing estate shall be reimbursed
from the estate receiving the contribution
notwithstanding any transmutation; provided, that no such
reimbursement shall be made with respect to a
contribution which is not retraceable by clear and
convincing evidence, or was a gift, or, in the case of a
contribution of personal effort of a spouse to
non-marital property, unless the effort is significant
and results in substantial appreciation of the
non-marital property. Personal effort of a spouse shall
be deemed a contribution by 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 which 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) the contribution of each party to the
acquisition, preservation, or increase or decrease in
value of the marital or non-marital property, including
the contribution of a spouse as a homemaker or to the
family unit;
(2) the dissipation by each party of the marital or
non-marital property;
(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 custody of the children;
(6) any obligations and rights arising from a prior
marriage of either party;
(7) any antenuptial 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,
shall value the property as of the date of trial or some
other date as close to the date of trial as is practicable.
(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, 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 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 of the Criminal Code of 1961
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 30 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.
(Source: P.A. 90-731, eff. 7-1-99; 91-445, eff. 1-1-00.)
Passed in the General Assembly May 16, 2001.
Approved August 09, 2001.
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