100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB2395

 

Introduced , by Rep. Robert W. Pritchard

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/504  from Ch. 40, par. 504

    Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that notwithstanding any other provision of law, federal veterans' disability benefits received by a party shall not be considered to be income of that party for purposes of any maintenance determination under this Section. Provides that the court may not require that a party use federal veterans' disability benefits to pay maintenance.


LRB100 06980 HEP 17031 b

 

 

A BILL FOR

 

HB2395LRB100 06980 HEP 17031 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Section 504 as follows:
 
6    (750 ILCS 5/504)  (from Ch. 40, par. 504)
7    Sec. 504. Maintenance.
8    (a) Entitlement to maintenance. In a proceeding for
9dissolution of marriage or legal separation or declaration of
10invalidity of marriage, or a proceeding for maintenance
11following dissolution of the marriage by a court which lacked
12personal jurisdiction over the absent spouse, the court may
13grant a maintenance award for either spouse in amounts and for
14periods of time as the court deems just, without regard to
15marital misconduct, and the maintenance may be paid from the
16income or property of the other spouse. The court shall first
17determine whether a maintenance award is appropriate, after
18consideration of all relevant factors, including:
19        (1) the income and property of each party, including
20    marital property apportioned and non-marital property
21    assigned to the party seeking maintenance as well as all
22    financial obligations imposed on the parties as a result of
23    the dissolution of marriage;

 

 

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1        (2) the needs of each party;
2        (3) the realistic present and future earning capacity
3    of each party;
4        (4) any impairment of the present and future earning
5    capacity of the party seeking maintenance due to that party
6    devoting time to domestic duties or having forgone or
7    delayed education, training, employment, or career
8    opportunities due to the marriage;
9        (5) any impairment of the realistic present or future
10    earning capacity of the party against whom maintenance is
11    sought;
12        (6) the time necessary to enable the party seeking
13    maintenance to acquire appropriate education, training,
14    and employment, and whether that party is able to support
15    himself or herself through appropriate employment or any
16    parental responsibility arrangements and its effect on the
17    party seeking employment;
18        (7) the standard of living established during the
19    marriage;
20        (8) the duration of the marriage;
21        (9) the age, health, station, occupation, amount and
22    sources of income, vocational skills, employability,
23    estate, liabilities, and the needs of each of the parties;
24        (10) all sources of public and private income
25    including, without limitation, disability and retirement
26    income;

 

 

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1        (11) the tax consequences of the property division upon
2    the respective economic circumstances of the parties;
3        (12) contributions and services by the party seeking
4    maintenance to the education, training, career or career
5    potential, or license of the other spouse;
6        (13) any valid agreement of the parties; and
7        (14) any other factor that the court expressly finds to
8    be just and equitable.
9    (b) (Blank).
10    (b-1) Amount and duration of maintenance. If the court
11determines that a maintenance award is appropriate, the court
12shall order maintenance in accordance with either paragraph (1)
13or (2) of this subsection (b-1):
14        (1) Maintenance award in accordance with guidelines.
15    In situations when the combined gross income of the parties
16    is less than $250,000 and the payor has no obligation to
17    pay child support or maintenance or both from a prior
18    relationship, maintenance payable after the date the
19    parties' marriage is dissolved shall be in accordance with
20    subparagraphs (A) and (B) of this paragraph (1), unless the
21    court makes a finding that the application of the
22    guidelines would be inappropriate.
23            (A) The amount of maintenance under this paragraph
24        (1) shall be calculated by taking 30% of the payor's
25        gross income minus 20% of the payee's gross income. The
26        amount calculated as maintenance, however, when added

 

 

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1        to the gross income of the payee, may not result in the
2        payee receiving an amount that is in excess of 40% of
3        the combined gross income of the parties.
4            (B) The duration of an award under this paragraph
5        (1) shall be calculated by multiplying the length of
6        the marriage at the time the action was commenced by
7        whichever of the following factors applies: 5 years or
8        less (.20); more than 5 years but less than 10 years
9        (.40); 10 years or more but less than 15 years (.60);
10        or 15 years or more but less than 20 years (.80). For a
11        marriage of 20 or more years, the court, in its
12        discretion, shall order either permanent maintenance
13        or maintenance for a period equal to the length of the
14        marriage.
15        (2) Maintenance award not in accordance with
16    guidelines. Any non-guidelines award of maintenance shall
17    be made after the court's consideration of all relevant
18    factors set forth in subsection (a) of this Section.
19    (b-2) Findings. In each case involving the issue of
20maintenance, the court shall make specific findings of fact, as
21follows:
22        (1) the court shall state its reasoning for awarding or
23    not awarding maintenance and shall include references to
24    each relevant factor set forth in subsection (a) of this
25    Section; and
26        (2) if the court deviates from otherwise applicable

 

 

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1    guidelines under paragraph (1) of subsection (b-1), it
2    shall state in its findings the amount of maintenance (if
3    determinable) or duration that would have been required
4    under the guidelines and the reasoning for any variance
5    from the guidelines.
6    (b-3) Gross income. For purposes of this Section, the term
7"gross income" means all income from all sources, within the
8scope of that phrase in Section 505 of this Act.
9    (b-4) Unallocated maintenance. Unless the parties
10otherwise agree, the court may not order unallocated
11maintenance and child support in any dissolution judgment or in
12any post-dissolution order. In its discretion, the court may
13order unallocated maintenance and child support in any
14pre-dissolution temporary order.
15    (b-4.5) Fixed-term maintenance in marriages of less than 10
16years. If a court grants maintenance for a fixed period under
17subsection (a) of this Section at the conclusion of a case
18commenced before the tenth anniversary of the marriage, the
19court may also designate the termination of the period during
20which this maintenance is to be paid as a "permanent
21termination". The effect of this designation is that
22maintenance is barred after the ending date of the period
23during which maintenance is to be paid.
24    (b-5) Interest on maintenance. Any maintenance obligation
25including any unallocated maintenance and child support
26obligation, or any portion of any support obligation, that

 

 

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1becomes due and remains unpaid shall accrue simple interest as
2set forth in Section 505 of this Act.
3    (b-7) Maintenance judgments. Any new or existing
4maintenance order including any unallocated maintenance and
5child support order entered by the court under this Section
6shall be deemed to be a series of judgments against the person
7obligated to pay support thereunder. Each such judgment to be
8in the amount of each payment or installment of support and
9each such judgment to be deemed entered as of the date the
10corresponding payment or installment becomes due under the
11terms of the support order, except no judgment shall arise as
12to any installment coming due after the termination of
13maintenance as provided by Section 510 of the Illinois Marriage
14and Dissolution of Marriage Act or the provisions of any order
15for maintenance. Each such judgment shall have the full force,
16effect and attributes of any other judgment of this State,
17including the ability to be enforced. Notwithstanding any other
18State or local law to the contrary, a lien arises by operation
19of law against the real and personal property of the obligor
20for each installment of overdue support owed by the obligor.
21    (b-8) Upon review of any previously ordered maintenance
22award, the court may extend maintenance for further review,
23extend maintenance for a fixed non-modifiable term, extend
24maintenance for an indefinite term, or permanently terminate
25maintenance in accordance with subdivision (b-1)(1)(A) of this
26Section.

 

 

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1    (c) Maintenance during an appeal. The court may grant and
2enforce the payment of maintenance during the pendency of an
3appeal as the court shall deem reasonable and proper.
4    (d) Maintenance during imprisonment. No maintenance shall
5accrue during the period in which a party is imprisoned for
6failure to comply with the court's order for the payment of
7such maintenance.
8    (e) Fees when maintenance is paid through the clerk. When
9maintenance is to be paid through the clerk of the court in a
10county of 1,000,000 inhabitants or less, the order shall direct
11the obligor to pay to the clerk, in addition to the maintenance
12payments, all fees imposed by the county board under paragraph
13(3) of subsection (u) of Section 27.1 of the Clerks of Courts
14Act. Unless paid in cash or pursuant to an order for
15withholding, the payment of the fee shall be by a separate
16instrument from the support payment and shall be made to the
17order of the Clerk.
18    (f) Maintenance secured by life insurance. An award ordered
19by a court upon entry of a dissolution judgment or upon entry
20of an award of maintenance following a reservation of
21maintenance in a dissolution judgment may be reasonably
22secured, in whole or in part, by life insurance on the payor's
23life on terms as to which the parties agree, or, if they do not
24agree, on such terms determined by the court, subject to the
25following:
26        (1) With respect to existing life insurance, provided

 

 

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1    the court is apprised through evidence, stipulation, or
2    otherwise as to level of death benefits, premium, and other
3    relevant data and makes findings relative thereto, the
4    court may allocate death benefits, the right to assign
5    death benefits, or the obligation for future premium
6    payments between the parties as it deems just.
7        (2) To the extent the court determines that its award
8    should be secured, in whole or in part, by new life
9    insurance on the payor's life, the court may only order:
10            (i) that the payor cooperate on all appropriate
11        steps for the payee to obtain such new life insurance;
12        and
13            (ii) that the payee, at his or her sole option and
14        expense, may obtain such new life insurance on the
15        payor's life up to a maximum level of death benefit
16        coverage, or descending death benefit coverage, as is
17        set by the court, such level not to exceed a reasonable
18        amount in light of the court's award, with the payee or
19        the payee's designee being the beneficiary of such life
20        insurance.
21    In determining the maximum level of death benefit coverage,
22    the court shall take into account all relevant facts and
23    circumstances, including the impact on access to life
24    insurance by the maintenance payor. If in resolving any
25    issues under paragraph (2) of this subsection (f) a court
26    reviews any submitted or proposed application for new

 

 

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1    insurance on the life of a maintenance payor, the review
2    shall be in camera.
3        (3) A judgment shall expressly set forth that all death
4    benefits paid under life insurance on a payor's life
5    maintained or obtained pursuant to this subsection to
6    secure maintenance are designated as excludable from the
7    gross income of the maintenance payee under Section
8    71(b)(1)(B) of the Internal Revenue Code, unless an
9    agreement or stipulation of the parties otherwise
10    provides.
11    (g) Federal veterans' benefits. Notwithstanding any other
12provision of law, federal veterans' disability benefits
13received by a party shall not be considered to be income of
14that party for purposes of any maintenance determination under
15this Section. The court may not require that a party use
16federal veterans' disability benefits to pay maintenance.
17(Source: P.A. 98-961, eff. 1-1-15; 99-90, eff. 1-1-16; 99-763,
18eff. 1-1-17.)