Sen. Chuck Weaver

Filed: 3/12/2018

 

 


 

 


 
10000SB2437sam001LRB100 16507 HEP 37325 a

1
AMENDMENT TO SENATE BILL 2437

2    AMENDMENT NO. ______. Amend Senate Bill 2437 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Section 503 as follows:
 
6    (750 ILCS 5/503)  (from Ch. 40, par. 503)
7    Sec. 503. Disposition of property and debts.
8    (a) For purposes of this Act, "marital property" means all
9property, including debts and other obligations, acquired by
10either spouse subsequent to the marriage, except the following,
11which is known as "non-marital property":
12        (1) property acquired by gift, legacy or descent or
13    property acquired in exchange for such property;
14        (2) property acquired in exchange for property
15    acquired before the marriage;
16        (3) property acquired by a spouse after a judgment of

 

 

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1    legal separation;
2        (4) property excluded by valid agreement of the
3    parties, including a premarital agreement or a postnuptial
4    agreement;
5        (5) any judgment or property obtained by judgment
6    awarded to a spouse from the other spouse except, however,
7    when a spouse is required to sue the other spouse in order
8    to obtain insurance coverage or otherwise recover from a
9    third party and the recovery is directly related to amounts
10    advanced by the marital estate, the judgment shall be
11    considered marital property;
12        (6) property acquired before the marriage, except as it
13    relates to retirement plans that may have both marital and
14    non-marital characteristics;
15        (6.5) all property acquired by a spouse by the sole use
16    of non-marital property as collateral for a loan that then
17    is used to acquire property during the marriage; to the
18    extent that the marital estate repays any portion of the
19    loan, it shall be considered a contribution from the
20    marital estate to the non-marital estate subject to
21    reimbursement;
22        (7) the increase in value of non-marital property,
23    irrespective of whether the increase results from a
24    contribution of marital property, non-marital property,
25    the personal effort of a spouse, or otherwise, subject to
26    the right of reimbursement provided in subsection (c) of

 

 

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1    this Section; and
2        (8) income from property acquired by a method listed in
3    paragraphs (1) through (7) of this subsection if the income
4    is not attributable to the personal effort of a spouse.
5    Property acquired prior to a marriage that would otherwise
6be non-marital property shall not be deemed to be marital
7property solely because the property was acquired in
8contemplation of marriage.
9    The court shall make specific factual findings as to its
10classification of assets as marital or non-marital property,
11values, and other factual findings supporting its property
12award.
13    (b)(1) For purposes of distribution of property, all
14property acquired by either spouse after the marriage and
15before a judgment of dissolution of marriage or declaration of
16invalidity of marriage is presumed marital property. This
17presumption includes non-marital property transferred into
18some form of co-ownership between the spouses, regardless of
19whether title is held individually or by the spouses in some
20form of co-ownership such as joint tenancy, tenancy in common,
21tenancy by the entirety, or community property. The presumption
22of marital property is overcome by showing through clear and
23convincing evidence that the property was acquired by a method
24listed in subsection (a) of this Section or was done for estate
25or tax planning purposes or for other reasons that establish
26that a transfer between spouses was not intended to be a gift.

 

 

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1    (2) For purposes of distribution of property pursuant to
2this Section, all pension benefits (including pension benefits
3under the Illinois Pension Code, defined benefit plans, defined
4contribution plans and accounts, individual retirement
5accounts, and non-qualified plans) acquired by or participated
6in by either spouse after the marriage and before a judgment of
7dissolution of marriage or legal separation or declaration of
8invalidity of the marriage are presumed to be marital property.
9A spouse may overcome the presumption that these pension
10benefits are marital property by showing through clear and
11convincing evidence that the pension benefits were acquired by
12a method listed in subsection (a) of this Section. The right to
13a division of pension benefits in just proportions under this
14Section is enforceable under Section 1-119 of the Illinois
15Pension Code.
16    The value of pension benefits in a retirement system
17subject to the Illinois Pension Code shall be determined in
18accordance with the valuation procedures established by the
19retirement system.
20    The recognition of pension benefits as marital property and
21the division of those benefits pursuant to a Qualified Illinois
22Domestic Relations Order shall not be deemed to be a
23diminishment, alienation, or impairment of those benefits. The
24division of pension benefits is an allocation of property in
25which each spouse has a species of common ownership.
26    (3) For purposes of distribution of property under this

 

 

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1Section, all stock options and restricted stock or similar form
2of benefit granted to either spouse after the marriage and
3before a judgment of dissolution of marriage or legal
4separation or declaration of invalidity of marriage, whether
5vested or non-vested or whether their value is ascertainable,
6are presumed to be marital property. This presumption of
7marital property is overcome by a showing that the stock
8options or restricted stock or similar form of benefit were
9acquired by a method listed in subsection (a) of this Section.
10The court shall allocate stock options and restricted stock or
11similar form of benefit between the parties at the time of the
12judgment of dissolution of marriage or declaration of
13invalidity of marriage recognizing that the value of the stock
14options and restricted stock or similar form of benefit may not
15be then determinable and that the actual division of the
16options may not occur until a future date. In making the
17allocation between the parties, the court shall consider, in
18addition to the factors set forth in subsection (d) of this
19Section, the following:
20        (i) All circumstances underlying the grant of the stock
21    option and restricted stock or similar form of benefit
22    including but not limited to the vesting schedule, whether
23    the grant was for past, present, or future efforts, whether
24    the grant is designed to promote future performance or
25    employment, or any combination thereof.
26        (ii) The length of time from the grant of the option to

 

 

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1    the time the option is exercisable.
2    (b-5)(1) As to any existing policy of life insurance
3insuring the life of either spouse, or any interest in such
4policy, that constitutes marital property, whether whole life,
5term life, group term life, universal life, or other form of
6life insurance policy, and whether or not the value is
7ascertainable, the court shall allocate ownership, death
8benefits or the right to assign death benefits, and the
9obligation for premium payments, if any, equitably between the
10parties at the time of the judgment for dissolution or
11declaration of invalidity of marriage.
12    (2) If a judgment of dissolution of marriage is entered
13after an insured has designated the insured's spouse as a
14beneficiary under a life insurance policy in force at the time
15of entry, the designation of the insured's former spouse as
16beneficiary is not effective unless:
17        (A) the judgment designates the insured's former
18    spouse as the beneficiary;
19        (B) the insured redesignates the former spouse as the
20    beneficiary after entry of the judgment; or
21        (C) the former spouse is designated to receive the
22    proceeds in trust for, on behalf of, or for the benefit of
23    a child or a dependent of either former spouse.
24    (3) If a designation is not effective under paragraph (2),
25the proceeds of the policy are payable to the named alternative
26beneficiary or, if there is not a named alternative

 

 

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1beneficiary, to the estate of the insured.
2    (4) An insurer that pays the proceeds of a life insurance
3policy to the beneficiary under a designation that is not
4effective under paragraph (2) is liable for payment of the
5proceeds to the person or estate provided by paragraph (3) only
6if:
7        (A) before payment of the proceeds to the designated
8    beneficiary, the insurer receives written notice at the
9    home office of the insurer from an interested person that
10    the designation is not effective under paragraph (2); and
11        (B) the insurer has not filed an interpleader.
12    (c) Commingled marital and non-marital property shall be
13treated in the following manner, unless otherwise agreed by the
14spouses:
15        (1)(A) If marital and non-marital property are
16    commingled by one estate being contributed into the other,
17    the following shall apply:
18            (i) If the contributed property loses its
19        identity, the contributed property transmutes to the
20        estate receiving the property, subject to the
21        provisions of paragraph (2) of this subsection (c).
22            (ii) If the contributed property retains its
23        identity, it does not transmute and remains property of
24        the contributing estate.
25        (B) If marital and non-marital property are commingled
26    into newly acquired property resulting in a loss of

 

 

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1    identity of the contributing estates, the commingled
2    property shall be deemed transmuted to marital property,
3    subject to the provisions of paragraph (2) of this
4    subsection (c).
5        (2)(A) When one estate of property makes a contribution
6    to another estate of property, the contributing estate
7    shall be reimbursed from the estate receiving the
8    contribution notwithstanding any transmutation. No such
9    reimbursement shall be made with respect to a contribution
10    that is not traceable by clear and convincing evidence or
11    that was a gift. The court may provide for reimbursement
12    out of the marital property to be divided or by imposing a
13    lien against the non-marital property that received the
14    contribution.
15        (B) When a spouse contributes personal effort to
16    non-marital property, it shall be deemed a contribution
17    from the marital estate, which shall receive reimbursement
18    for the efforts if the efforts are significant and result
19    in substantial appreciation to the non-marital property
20    except that if the marital estate reasonably has been
21    compensated for his or her efforts, it shall not be deemed
22    a contribution to the marital estate and there shall be no
23    reimbursement to the marital estate. The court may provide
24    for reimbursement out of the marital property to be divided
25    or by imposing a lien against the non-marital property
26    which received the contribution.

 

 

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1    (d) In a proceeding for dissolution of marriage or
2declaration of invalidity of marriage, or in a proceeding for
3disposition of property following dissolution of marriage by a
4court that lacked personal jurisdiction over the absent spouse
5or lacked jurisdiction to dispose of the property, the court
6shall assign each spouse's non-marital property to that spouse.
7It also shall divide the marital property without regard to
8marital misconduct in just proportions considering all
9relevant factors, including:
10        (1) each party's contribution to the acquisition,
11    preservation, or increase or decrease in value of the
12    marital or non-marital property, including (i) any
13    decrease attributable to an advance from the parties'
14    marital estate under subsection (c-1)(2) of Section 501;
15    (ii) the contribution of a spouse as a homemaker or to the
16    family unit; and (iii) whether the contribution is after
17    the commencement of a proceeding for dissolution of
18    marriage or declaration of invalidity of marriage;
19        (2) the dissipation by each party of the marital
20    property, provided that a party's claim of dissipation is
21    subject to the following conditions:
22            (i) a notice of intent to claim dissipation shall
23        be given no later than 60 days before trial or 30 days
24        after discovery closes, whichever is later;
25            (ii) the notice of intent to claim dissipation
26        shall contain, at a minimum, a date or period of time

 

 

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1        during which the marriage began undergoing an
2        irretrievable breakdown, an identification of the
3        property dissipated, and a date or period of time
4        during which the dissipation occurred;
5            (iii) a certificate or service of the notice of
6        intent to claim dissipation shall be filed with the
7        clerk of the court and be served pursuant to applicable
8        rules;
9            (iv) no dissipation shall be deemed to have
10        occurred prior to 3 years after the party claiming
11        dissipation knew or should have known of the
12        dissipation, but in no event prior to 5 years before
13        the filing of the petition for dissolution of marriage;
14        (3) the value of the property assigned to each spouse;
15        (4) the duration of the marriage;
16        (5) the relevant economic circumstances of each spouse
17    when the division of property is to become effective,
18    including the desirability of awarding the family home, or
19    the right to live therein for reasonable periods, to the
20    spouse having the primary residence of the children;
21        (6) any obligations and rights arising from a prior
22    marriage of either party;
23        (7) any prenuptial or postnuptial agreement of the
24    parties;
25        (8) the age, health, station, occupation, amount and
26    sources of income, vocational skills, employability,

 

 

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1    estate, liabilities, and needs of each of the parties;
2        (9) the custodial provisions for any children;
3        (10) whether the apportionment is in lieu of or in
4    addition to maintenance;
5        (11) the reasonable opportunity of each spouse for
6    future acquisition of capital assets and income; and
7        (12) the tax consequences of the property division upon
8    the respective economic circumstances of the parties.
9    (e) Each spouse has a species of common ownership in the
10marital property which vests at the time dissolution
11proceedings are commenced and continues only during the
12pendency of the action. Any such interest in marital property
13shall not encumber that property so as to restrict its
14transfer, assignment or conveyance by the title holder unless
15such title holder is specifically enjoined from making such
16transfer, assignment or conveyance.
17    (f) In a proceeding for dissolution of marriage or
18declaration of invalidity of marriage or in a proceeding for
19disposition of property following dissolution of marriage by a
20court that lacked personal jurisdiction over the absent spouse
21or lacked jurisdiction to dispose of the property, the court,
22in determining the value of the marital and non-marital
23property for purposes of dividing the property, has the
24discretion to use the date of the trial or such other date as
25agreed upon by the parties, or ordered by the court within its
26discretion, for purposes of determining the value of assets or

 

 

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1property.
2    (g) The court if necessary to protect and promote the best
3interests of the children may set aside a portion of the
4jointly or separately held estates of the parties in a separate
5fund or trust for the support, maintenance, education, physical
6and mental health, and general welfare of any minor, dependent,
7or incompetent child of the parties. In making a determination
8under this subsection, the court may consider, among other
9things, the conviction of a party of any of the offenses set
10forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
1112-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13, 12-14, 12-14.1,
1212-15, or 12-16, or Section 12-3.05 except for subdivision
13(a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal
14Code of 2012 if the victim is a child of one or both of the
15parties, and there is a need for, and cost of, care, healing
16and counseling for the child who is the victim of the crime.
17    (h) Unless specifically directed by a reviewing court, or
18upon good cause shown, the court shall not on remand consider
19any increase or decrease in the value of any "marital" or
20"non-marital" property occurring since the assessment of such
21property at the original trial or hearing, but shall use only
22that assessment made at the original trial or hearing.
23    (i) The court may make such judgments affecting the marital
24property as may be just and may enforce such judgments by
25ordering a sale of marital property, with proceeds therefrom to
26be applied as determined by the court.

 

 

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1    (j) After proofs have closed in the final hearing on all
2other issues between the parties (or in conjunction with the
3final hearing, if all parties so stipulate) and before judgment
4is entered, a party's petition for contribution to fees and
5costs incurred in the proceeding shall be heard and decided, in
6accordance with the following provisions:
7        (1) A petition for contribution, if not filed before
8    the final hearing on other issues between the parties,
9    shall be filed no later than 14 days after the closing of
10    proofs in the final hearing or within such other period as
11    the court orders.
12        (2) Any award of contribution to one party from the
13    other party shall be based on the criteria for division of
14    marital property under this Section 503 and, if maintenance
15    has been awarded, on the criteria for an award of
16    maintenance under Section 504.
17        (3) The filing of a petition for contribution shall not
18    be deemed to constitute a waiver of the attorney-client
19    privilege between the petitioning party and current or
20    former counsel; and such a waiver shall not constitute a
21    prerequisite to a hearing for contribution. If either
22    party's presentation on contribution, however, includes
23    evidence within the scope of the attorney-client
24    privilege, the disclosure or disclosures shall be narrowly
25    construed and shall not be deemed by the court to
26    constitute a general waiver of the privilege as to matters

 

 

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1    beyond the scope of the presentation.
2        (4) No finding on which a contribution award is based
3    or denied shall be asserted against counsel or former
4    counsel for purposes of any hearing under subsection (c) or
5    (e) of Section 508.
6        (5) A contribution award (payable to either the
7    petitioning party or the party's counsel, or jointly, as
8    the court determines) may be in the form of either a set
9    dollar amount or a percentage of fees and costs (or a
10    portion of fees and costs) to be subsequently agreed upon
11    by the petitioning party and counsel or, alternatively,
12    thereafter determined in a hearing pursuant to subsection
13    (c) of Section 508 or previously or thereafter determined
14    in an independent proceeding under subsection (e) of
15    Section 508.
16        (6) The changes to this Section 503 made by this
17    amendatory Act of 1996 apply to cases pending on or after
18    June 1, 1997, except as otherwise provided in Section 508.
19    (k) In determining the value of assets or property under
20this Section, the court shall employ a fair market value
21standard. The date of valuation for the purposes of division of
22assets shall be the date of trial or such other date as agreed
23by the parties or ordered by the court, within its discretion.
24If the court grants a petition brought under Section 2-1401 of
25the Code of Civil Procedure, then the court has the discretion
26to use the date of the trial or such other date as agreed upon

 

 

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1by the parties, or ordered by the court within its discretion,
2for purposes of determining the value of assets or property.
3    (l) The court may seek the advice of financial experts or
4other professionals, whether or not employed by the court on a
5regular basis. The advice given shall be in writing and made
6available by the court to counsel. Counsel may examine as a
7witness any professional consulted by the court designated as
8the court's witness. Professional personnel consulted by the
9court are subject to subpoena for the purposes of discovery,
10trial, or both. The court shall allocate the costs and fees of
11those professional personnel between the parties based upon the
12financial ability of each party and any other criteria the
13court considers appropriate, and the allocation is subject to
14reallocation under subsection (a) of Section 508. Upon the
15request of any party or upon the court's own motion, the court
16may conduct a hearing as to the reasonableness of those fees
17and costs.
18    (m) The changes made to this Section by Public Act 97-941
19apply only to petitions for dissolution of marriage filed on or
20after January 1, 2013 (the effective date of Public Act
2197-941).
22    (n) If the court finds that a companion animal of the
23parties is a marital asset, it shall allocate the sole or joint
24ownership of and responsibility for a companion animal of the
25parties. In issuing an order under this subsection, the court
26shall take into consideration the well-being of the companion

 

 

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1animal. As used in this Section, "companion animal" does not
2include a service animal as defined in Section 2.01c of the
3Humane Care for Animals Act.
4(Source: P.A. 99-78, eff. 7-20-15; 99-90, eff. 1-1-16; 99-763,
5eff. 1-1-17; 100-422, eff. 1-1-18.)".