97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3208

 

Introduced 2/24/2011, by Rep. Sara Feigenholtz

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/505  from Ch. 40, par. 505

    Amends the Illinois Marriage and Dissolution of Marriage Act. Makes a technical change in a Section concerning the setting of child support.


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A BILL FOR

 

HB3208LRB097 07429 AJO 47538 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 505 as follows:
 
6    (750 ILCS 5/505)  (from Ch. 40, par. 505)
7    Sec. 505. Child support; contempt; penalties.
8    (a) In a proceeding for dissolution of marriage, legal
9separation, declaration of invalidity of marriage, a
10proceeding for child support following dissolution of the the
11marriage by a court which lacked personal jurisdiction over the
12absent spouse, a proceeding for modification of a previous
13order for child support under Section 510 of this Act, or any
14proceeding authorized under Section 501 or 601 of this Act, the
15court may order either or both parents owing a duty of support
16to a child of the marriage to pay an amount reasonable and
17necessary for his support, without regard to marital
18misconduct. The duty of support owed to a child includes the
19obligation to provide for the reasonable and necessary
20physical, mental and emotional health needs of the child. For
21purposes of this Section, the term "child" shall include any
22child under age 18 and any child under age 19 who is still
23attending high school.

 

 

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1        (1) The Court shall determine the minimum amount of
2    support by using the following guidelines:
3Number of ChildrenPercent of Supporting Party's
4Net Income
5120%
6228%
7332%
8440%
9545%
106 or more50%
11        (2) The above guidelines shall be applied in each case
12    unless the court makes a finding that application of the
13    guidelines would be inappropriate, after considering the
14    best interests of the child in light of evidence including
15    but not limited to one or more of the following relevant
16    factors:
17            (a) the financial resources and needs of the child;
18            (b) the financial resources and needs of the
19        custodial parent;
20            (c) the standard of living the child would have
21        enjoyed had the marriage not been dissolved;
22            (d) the physical and emotional condition of the
23        child, and his educational needs; and
24            (e) the financial resources and needs of the
25        non-custodial parent.
26        If the court deviates from the guidelines, the court's

 

 

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1    finding shall state the amount of support that would have
2    been required under the guidelines, if determinable. The
3    court shall include the reason or reasons for the variance
4    from the guidelines.
5        (3) "Net income" is defined as the total of all income
6    from all sources, minus the following deductions:
7            (a) Federal income tax (properly calculated
8        withholding or estimated payments);
9            (b) State income tax (properly calculated
10        withholding or estimated payments);
11            (c) Social Security (FICA payments);
12            (d) Mandatory retirement contributions required by
13        law or as a condition of employment;
14            (e) Union dues;
15            (f) Dependent and individual
16        health/hospitalization insurance premiums;
17            (g) Prior obligations of support or maintenance
18        actually paid pursuant to a court order;
19            (h) Expenditures for repayment of debts that
20        represent reasonable and necessary expenses for the
21        production of income, medical expenditures necessary
22        to preserve life or health, reasonable expenditures
23        for the benefit of the child and the other parent,
24        exclusive of gifts. The court shall reduce net income
25        in determining the minimum amount of support to be
26        ordered only for the period that such payments are due

 

 

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1        and shall enter an order containing provisions for its
2        self-executing modification upon termination of such
3        payment period;
4            (i) Foster care payments paid by the Department of
5        Children and Family Services for providing licensed
6        foster care to a foster child.
7        (4) In cases where the court order provides for
8    health/hospitalization insurance coverage pursuant to
9    Section 505.2 of this Act, the premiums for that insurance,
10    or that portion of the premiums for which the supporting
11    party is responsible in the case of insurance provided
12    through an employer's health insurance plan where the
13    employer pays a portion of the premiums, shall be
14    subtracted from net income in determining the minimum
15    amount of support to be ordered.
16        (4.5) In a proceeding for child support following
17    dissolution of the marriage by a court that lacked personal
18    jurisdiction over the absent spouse, and in which the court
19    is requiring payment of support for the period before the
20    date an order for current support is entered, there is a
21    rebuttable presumption that the supporting party's net
22    income for the prior period was the same as his or her net
23    income at the time the order for current support is
24    entered.
25        (5) If the net income cannot be determined because of
26    default or any other reason, the court shall order support

 

 

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1    in an amount considered reasonable in the particular case.
2    The final order in all cases shall state the support level
3    in dollar amounts. However, if the court finds that the
4    child support amount cannot be expressed exclusively as a
5    dollar amount because all or a portion of the payor's net
6    income is uncertain as to source, time of payment, or
7    amount, the court may order a percentage amount of support
8    in addition to a specific dollar amount and enter such
9    other orders as may be necessary to determine and enforce,
10    on a timely basis, the applicable support ordered.
11        (6) If (i) the non-custodial parent was properly served
12    with a request for discovery of financial information
13    relating to the non-custodial parent's ability to provide
14    child support, (ii) the non-custodial parent failed to
15    comply with the request, despite having been ordered to do
16    so by the court, and (iii) the non-custodial parent is not
17    present at the hearing to determine support despite having
18    received proper notice, then any relevant financial
19    information concerning the non-custodial parent's ability
20    to provide child support that was obtained pursuant to
21    subpoena and proper notice shall be admitted into evidence
22    without the need to establish any further foundation for
23    its admission.
24    (a-5) In an action to enforce an order for support based on
25the respondent's failure to make support payments as required
26by the order, notice of proceedings to hold the respondent in

 

 

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1contempt for that failure may be served on the respondent by
2personal service or by regular mail addressed to the
3respondent's last known address. The respondent's last known
4address may be determined from records of the clerk of the
5court, from the Federal Case Registry of Child Support Orders,
6or by any other reasonable means.
7    (b) Failure of either parent to comply with an order to pay
8support shall be punishable as in other cases of contempt. In
9addition to other penalties provided by law the Court may,
10after finding the parent guilty of contempt, order that the
11parent be:
12        (1) placed on probation with such conditions of
13    probation as the Court deems advisable;
14        (2) sentenced to periodic imprisonment for a period not
15    to exceed 6 months; provided, however, that the Court may
16    permit the parent to be released for periods of time during
17    the day or night to:
18            (A) work; or
19            (B) conduct a business or other self-employed
20        occupation.
21    The Court may further order any part or all of the earnings
22of a parent during a sentence of periodic imprisonment paid to
23the Clerk of the Circuit Court or to the parent having custody
24or to the guardian having custody of the children of the
25sentenced parent for the support of said children until further
26order of the Court.

 

 

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1    If there is a unity of interest and ownership sufficient to
2render no financial separation between a non-custodial parent
3and another person or persons or business entity, the court may
4pierce the ownership veil of the person, persons, or business
5entity to discover assets of the non-custodial parent held in
6the name of that person, those persons, or that business
7entity. The following circumstances are sufficient to
8authorize a court to order discovery of the assets of a person,
9persons, or business entity and to compel the application of
10any discovered assets toward payment on the judgment for
11support:
12        (1) the non-custodial parent and the person, persons,
13    or business entity maintain records together.
14        (2) the non-custodial parent and the person, persons,
15    or business entity fail to maintain an arms length
16    relationship between themselves with regard to any assets.
17        (3) the non-custodial parent transfers assets to the
18    person, persons, or business entity with the intent to
19    perpetrate a fraud on the custodial parent.
20    With respect to assets which are real property, no order
21entered under this paragraph shall affect the rights of bona
22fide purchasers, mortgagees, judgment creditors, or other lien
23holders who acquire their interests in the property prior to
24the time a notice of lis pendens pursuant to the Code of Civil
25Procedure or a copy of the order is placed of record in the
26office of the recorder of deeds for the county in which the

 

 

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1real property is located.
2    The court may also order in cases where the parent is 90
3days or more delinquent in payment of support or has been
4adjudicated in arrears in an amount equal to 90 days obligation
5or more, that the parent's Illinois driving privileges be
6suspended until the court determines that the parent is in
7compliance with the order of support. The court may also order
8that the parent be issued a family financial responsibility
9driving permit that would allow limited driving privileges for
10employment and medical purposes in accordance with Section
117-702.1 of the Illinois Vehicle Code. The clerk of the circuit
12court shall certify the order suspending the driving privileges
13of the parent or granting the issuance of a family financial
14responsibility driving permit to the Secretary of State on
15forms prescribed by the Secretary. Upon receipt of the
16authenticated documents, the Secretary of State shall suspend
17the parent's driving privileges until further order of the
18court and shall, if ordered by the court, subject to the
19provisions of Section 7-702.1 of the Illinois Vehicle Code,
20issue a family financial responsibility driving permit to the
21parent.
22    In addition to the penalties or punishment that may be
23imposed under this Section, any person whose conduct
24constitutes a violation of Section 15 of the Non-Support
25Punishment Act may be prosecuted under that Act, and a person
26convicted under that Act may be sentenced in accordance with

 

 

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1that Act. The sentence may include but need not be limited to a
2requirement that the person perform community service under
3Section 50 of that Act or participate in a work alternative
4program under Section 50 of that Act. A person may not be
5required to participate in a work alternative program under
6Section 50 of that Act if the person is currently participating
7in a work program pursuant to Section 505.1 of this Act.
8    A support obligation, or any portion of a support
9obligation, which becomes due and remains unpaid as of the end
10of each month, excluding the child support that was due for
11that month to the extent that it was not paid in that month,
12shall accrue simple interest as set forth in Section 12-109 of
13the Code of Civil Procedure. An order for support entered or
14modified on or after January 1, 2006 shall contain a statement
15that a support obligation required under the order, or any
16portion of a support obligation required under the order, that
17becomes due and remains unpaid as of the end of each month,
18excluding the child support that was due for that month to the
19extent that it was not paid in that month, shall accrue simple
20interest as set forth in Section 12-109 of the Code of Civil
21Procedure. Failure to include the statement in the order for
22support does not affect the validity of the order or the
23accrual of interest as provided in this Section.
24    (c) A one-time charge of 20% is imposable upon the amount
25of past-due child support owed on July 1, 1988 which has
26accrued under a support order entered by the court. The charge

 

 

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1shall be imposed in accordance with the provisions of Section
210-21 of the Illinois Public Aid Code and shall be enforced by
3the court upon petition.
4    (d) Any new or existing support order entered by the court
5under this Section shall be deemed to be a series of judgments
6against the person obligated to pay support thereunder, each
7such judgment to be in the amount of each payment or
8installment of support and each such judgment to be deemed
9entered as of the date the corresponding payment or installment
10becomes due under the terms of the support order. Each such
11judgment shall have the full force, effect and attributes of
12any other judgment of this State, including the ability to be
13enforced. A lien arises by operation of law against the real
14and personal property of the noncustodial parent for each
15installment of overdue support owed by the noncustodial parent.
16    (e) When child support is to be paid through the clerk of
17the court in a county of 1,000,000 inhabitants or less, the
18order shall direct the obligor to pay to the clerk, in addition
19to the child support payments, all fees imposed by the county
20board under paragraph (3) of subsection (u) of Section 27.1 of
21the Clerks of Courts Act. Unless paid in cash or pursuant to an
22order for withholding, the payment of the fee shall be by a
23separate instrument from the support payment and shall be made
24to the order of the Clerk.
25    (f) All orders for support, when entered or modified, shall
26include a provision requiring the obligor to notify the court

 

 

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1and, in cases in which a party is receiving child and spouse
2services under Article X of the Illinois Public Aid Code, the
3Department of Healthcare and Family Services, within 7 days,
4(i) of the name and address of any new employer of the obligor,
5(ii) whether the obligor has access to health insurance
6coverage through the employer or other group coverage and, if
7so, the policy name and number and the names of persons covered
8under the policy, and (iii) of any new residential or mailing
9address or telephone number of the non-custodial parent. In any
10subsequent action to enforce a support order, upon a sufficient
11showing that a diligent effort has been made to ascertain the
12location of the non-custodial parent, service of process or
13provision of notice necessary in the case may be made at the
14last known address of the non-custodial parent in any manner
15expressly provided by the Code of Civil Procedure or this Act,
16which service shall be sufficient for purposes of due process.
17    (g) An order for support shall include a date on which the
18current support obligation terminates. The termination date
19shall be no earlier than the date on which the child covered by
20the order will attain the age of 18. However, if the child will
21not graduate from high school until after attaining the age of
2218, then the termination date shall be no earlier than the
23earlier of the date on which the child's high school graduation
24will occur or the date on which the child will attain the age
25of 19. The order for support shall state that the termination
26date does not apply to any arrearage that may remain unpaid on

 

 

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1that date. Nothing in this subsection shall be construed to
2prevent the court from modifying the order or terminating the
3order in the event the child is otherwise emancipated.
4    (g-5) If there is an unpaid arrearage or delinquency (as
5those terms are defined in the Income Withholding for Support
6Act) equal to at least one month's support obligation on the
7termination date stated in the order for support or, if there
8is no termination date stated in the order, on the date the
9child attains the age of majority or is otherwise emancipated,
10the periodic amount required to be paid for current support of
11that child immediately prior to that date shall automatically
12continue to be an obligation, not as current support but as
13periodic payment toward satisfaction of the unpaid arrearage or
14delinquency. That periodic payment shall be in addition to any
15periodic payment previously required for satisfaction of the
16arrearage or delinquency. The total periodic amount to be paid
17toward satisfaction of the arrearage or delinquency may be
18enforced and collected by any method provided by law for
19enforcement and collection of child support, including but not
20limited to income withholding under the Income Withholding for
21Support Act. Each order for support entered or modified on or
22after the effective date of this amendatory Act of the 93rd
23General Assembly must contain a statement notifying the parties
24of the requirements of this subsection. Failure to include the
25statement in the order for support does not affect the validity
26of the order or the operation of the provisions of this

 

 

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1subsection with regard to the order. This subsection shall not
2be construed to prevent or affect the establishment or
3modification of an order for support of a minor child or the
4establishment or modification of an order for support of a
5non-minor child or educational expenses under Section 513 of
6this Act.
7    (h) An order entered under this Section shall include a
8provision requiring the obligor to report to the obligee and to
9the clerk of court within 10 days each time the obligor obtains
10new employment, and each time the obligor's employment is
11terminated for any reason. The report shall be in writing and
12shall, in the case of new employment, include the name and
13address of the new employer. Failure to report new employment
14or the termination of current employment, if coupled with
15nonpayment of support for a period in excess of 60 days, is
16indirect criminal contempt. For any obligor arrested for
17failure to report new employment bond shall be set in the
18amount of the child support that should have been paid during
19the period of unreported employment. An order entered under
20this Section shall also include a provision requiring the
21obligor and obligee parents to advise each other of a change in
22residence within 5 days of the change except when the court
23finds that the physical, mental, or emotional health of a party
24or that of a child, or both, would be seriously endangered by
25disclosure of the party's address.
26    (i) The court does not lose the powers of contempt,

 

 

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1driver's license suspension, or other child support
2enforcement mechanisms, including, but not limited to,
3criminal prosecution as set forth in this Act, upon the
4emancipation of the minor child or children.
5(Source: P.A. 95-331, eff. 8-21-07; 96-1134, eff. 7-21-10.)