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Full Text of SB3550  97th General Assembly

SB3550 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3550

 

Introduced 2/8/2012, by Sen. Kirk W. Dillard

 

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

    Amends the Illinois Marriage and Dissolution of Marriage Act. In provisions concerning child support, provides that in a case in which (i) a 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 and (ii) the parent is self-employed, the court may order the parent to pay to the clerk of the circuit court an amount equal to up to 180 days support obligation. Provides that the clerk shall hold that amount as security and shall pay to the obligee amounts therefrom as they become due.


LRB097 18228 DRJ 63452 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB3550LRB097 18228 DRJ 63452 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
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 and life
17        insurance premiums for life insurance ordered by the
18        court to reasonably secure child support or support
19        ordered pursuant to Section 513, any such order to
20        entail provisions on which the parties agree or,
21        otherwise, in accordance with the limitations set
22        forth in subsection 504(f)(1) and (2);
23            (g) Prior obligations of support or maintenance
24        actually paid pursuant to a court order;
25            (h) Expenditures for repayment of debts that
26        represent reasonable and necessary expenses for the

 

 

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1        production of income, medical expenditures necessary
2        to preserve life or health, reasonable expenditures
3        for the benefit of the child and the other parent,
4        exclusive of gifts. The court shall reduce net income
5        in determining the minimum amount of support to be
6        ordered only for the period that such payments are due
7        and shall enter an order containing provisions for its
8        self-executing modification upon termination of such
9        payment period;
10            (i) Foster care payments paid by the Department of
11        Children and Family Services for providing licensed
12        foster care to a foster child.
13        (4) In cases where the court order provides for
14    health/hospitalization insurance coverage pursuant to
15    Section 505.2 of this Act, the premiums for that insurance,
16    or that portion of the premiums for which the supporting
17    party is responsible in the case of insurance provided
18    through an employer's health insurance plan where the
19    employer pays a portion of the premiums, shall be
20    subtracted from net income in determining the minimum
21    amount of support to be ordered.
22        (4.5) In a proceeding for child support following
23    dissolution of the marriage by a court that lacked personal
24    jurisdiction over the absent spouse, and in which the court
25    is requiring payment of support for the period before the
26    date an order for current support is entered, there is a

 

 

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1    rebuttable presumption that the supporting party's net
2    income for the prior period was the same as his or her net
3    income at the time the order for current support is
4    entered.
5        (5) If the net income cannot be determined because of
6    default or any other reason, the court shall order support
7    in an amount considered reasonable in the particular case.
8    The final order in all cases shall state the support level
9    in dollar amounts. However, if the court finds that the
10    child support amount cannot be expressed exclusively as a
11    dollar amount because all or a portion of the payor's net
12    income is uncertain as to source, time of payment, or
13    amount, the court may order a percentage amount of support
14    in addition to a specific dollar amount and enter such
15    other orders as may be necessary to determine and enforce,
16    on a timely basis, the applicable support ordered.
17        (6) If (i) the non-custodial parent was properly served
18    with a request for discovery of financial information
19    relating to the non-custodial parent's ability to provide
20    child support, (ii) the non-custodial parent failed to
21    comply with the request, despite having been ordered to do
22    so by the court, and (iii) the non-custodial parent is not
23    present at the hearing to determine support despite having
24    received proper notice, then any relevant financial
25    information concerning the non-custodial parent's ability
26    to provide child support that was obtained pursuant to

 

 

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1    subpoena and proper notice shall be admitted into evidence
2    without the need to establish any further foundation for
3    its admission.
4    (a-5) In an action to enforce an order for support based on
5the respondent's failure to make support payments as required
6by the order, notice of proceedings to hold the respondent in
7contempt for that failure may be served on the respondent by
8personal service or by regular mail addressed to the
9respondent's last known address. The respondent's last known
10address may be determined from records of the clerk of the
11court, from the Federal Case Registry of Child Support Orders,
12or by any other reasonable means.
13    (b) Failure of either parent to comply with an order to pay
14support shall be punishable as in other cases of contempt. In
15addition to other penalties provided by law the Court may,
16after finding the parent guilty of contempt, order that the
17parent be:
18        (1) placed on probation with such conditions of
19    probation as the Court deems advisable;
20        (2) sentenced to periodic imprisonment for a period not
21    to exceed 6 months; provided, however, that the Court may
22    permit the parent to be released for periods of time during
23    the day or night to:
24            (A) work; or
25            (B) conduct a business or other self-employed
26        occupation.

 

 

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1    The Court may further order any part or all of the earnings
2of a parent during a sentence of periodic imprisonment paid to
3the Clerk of the Circuit Court or to the parent having custody
4or to the guardian having custody of the children of the
5sentenced parent for the support of said children until further
6order of the Court.
7    If there is a unity of interest and ownership sufficient to
8render no financial separation between a non-custodial parent
9and another person or persons or business entity, the court may
10pierce the ownership veil of the person, persons, or business
11entity to discover assets of the non-custodial parent held in
12the name of that person, those persons, or that business
13entity. The following circumstances are sufficient to
14authorize a court to order discovery of the assets of a person,
15persons, or business entity and to compel the application of
16any discovered assets toward payment on the judgment for
17support:
18        (1) the non-custodial parent and the person, persons,
19    or business entity maintain records together.
20        (2) the non-custodial parent and the person, persons,
21    or business entity fail to maintain an arms length
22    relationship between themselves with regard to any assets.
23        (3) the non-custodial parent transfers assets to the
24    person, persons, or business entity with the intent to
25    perpetrate a fraud on the custodial parent.
26    With respect to assets which are real property, no order

 

 

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1entered under this paragraph shall affect the rights of bona
2fide purchasers, mortgagees, judgment creditors, or other lien
3holders who acquire their interests in the property prior to
4the time a notice of lis pendens pursuant to the Code of Civil
5Procedure or a copy of the order is placed of record in the
6office of the recorder of deeds for the county in which the
7real property is located.
8    In a case in which (i) a parent is 90 days or more
9delinquent in payment of support or has been adjudicated in
10arrears in an amount equal to 90 days obligation or more and
11(ii) the parent is self-employed, the court may order the
12parent to pay to the clerk of the circuit court an amount equal
13to up to 180 days support obligation. The clerk shall hold that
14amount as security and shall pay to the obligee amounts
15therefrom as they become due.
16    The court may also order in cases where the parent is 90
17days or more delinquent in payment of support or has been
18adjudicated in arrears in an amount equal to 90 days obligation
19or more, that the parent's Illinois driving privileges be
20suspended until the court determines that the parent is in
21compliance with the order of support. The court may also order
22that the parent be issued a family financial responsibility
23driving permit that would allow limited driving privileges for
24employment and medical purposes in accordance with Section
257-702.1 of the Illinois Vehicle Code. The clerk of the circuit
26court shall certify the order suspending the driving privileges

 

 

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1of the parent or granting the issuance of a family financial
2responsibility driving permit to the Secretary of State on
3forms prescribed by the Secretary. Upon receipt of the
4authenticated documents, the Secretary of State shall suspend
5the parent's driving privileges until further order of the
6court and shall, if ordered by the court, subject to the
7provisions of Section 7-702.1 of the Illinois Vehicle Code,
8issue a family financial responsibility driving permit to the
9parent.
10    In addition to the penalties or punishment that may be
11imposed under this Section, any person whose conduct
12constitutes a violation of Section 15 of the Non-Support
13Punishment Act may be prosecuted under that Act, and a person
14convicted under that Act may be sentenced in accordance with
15that Act. The sentence may include but need not be limited to a
16requirement that the person perform community service under
17Section 50 of that Act or participate in a work alternative
18program under Section 50 of that Act. A person may not be
19required to participate in a work alternative program under
20Section 50 of that Act if the person is currently participating
21in a work program pursuant to Section 505.1 of this Act.
22    A support obligation, or any portion of a support
23obligation, which becomes due and remains unpaid as of the end
24of each month, excluding the child support that was due for
25that month to the extent that it was not paid in that month,
26shall accrue simple interest as set forth in Section 12-109 of

 

 

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1the Code of Civil Procedure. An order for support entered or
2modified on or after January 1, 2006 shall contain a statement
3that a support obligation required under the order, or any
4portion of a support obligation required under the order, that
5becomes due and remains unpaid as of the end of each month,
6excluding the child support that was due for that month to the
7extent that it was not paid in that month, shall accrue simple
8interest as set forth in Section 12-109 of the Code of Civil
9Procedure. Failure to include the statement in the order for
10support does not affect the validity of the order or the
11accrual of interest as provided in this Section.
12    (c) A one-time charge of 20% is imposable upon the amount
13of past-due child support owed on July 1, 1988 which has
14accrued under a support order entered by the court. The charge
15shall be imposed in accordance with the provisions of Section
1610-21 of the Illinois Public Aid Code and shall be enforced by
17the court upon petition.
18    (d) Any new or existing support order entered by the court
19under this Section shall be deemed to be a series of judgments
20against the person obligated to pay support thereunder, each
21such judgment to be in the amount of each payment or
22installment of support and each such judgment to be deemed
23entered as of the date the corresponding payment or installment
24becomes due under the terms of the support order. Each such
25judgment shall have the full force, effect and attributes of
26any other judgment of this State, including the ability to be

 

 

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1enforced. Notwithstanding any other State or local law to the
2contrary, a lien arises by operation of law against the real
3and personal property of the noncustodial parent for each
4installment of overdue support owed by the noncustodial parent.
5    (e) When child support is to be paid through the clerk of
6the court in a county of 1,000,000 inhabitants or less, the
7order shall direct the obligor to pay to the clerk, in addition
8to the child support payments, all fees imposed by the county
9board under paragraph (3) of subsection (u) of Section 27.1 of
10the Clerks of Courts Act. Unless paid in cash or pursuant to an
11order for withholding, the payment of the fee shall be by a
12separate instrument from the support payment and shall be made
13to the order of the Clerk.
14    (f) All orders for support, when entered or modified, shall
15include a provision requiring the obligor to notify the court
16and, in cases in which a party is receiving child and spouse
17services under Article X of the Illinois Public Aid Code, the
18Department of Healthcare and Family Services, within 7 days,
19(i) of the name and address of any new employer of the obligor,
20(ii) whether the obligor has access to health insurance
21coverage through the employer or other group coverage and, if
22so, the policy name and number and the names of persons covered
23under the policy, and (iii) of any new residential or mailing
24address or telephone number of the non-custodial parent. In any
25subsequent action to enforce a support order, upon a sufficient
26showing that a diligent effort has been made to ascertain the

 

 

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1location of the non-custodial parent, service of process or
2provision of notice necessary in the case may be made at the
3last known address of the non-custodial parent in any manner
4expressly provided by the Code of Civil Procedure or this Act,
5which service shall be sufficient for purposes of due process.
6    (g) An order for support shall include a date on which the
7current support obligation terminates. The termination date
8shall be no earlier than the date on which the child covered by
9the order will attain the age of 18. However, if the child will
10not graduate from high school until after attaining the age of
1118, then the termination date shall be no earlier than the
12earlier of the date on which the child's high school graduation
13will occur or the date on which the child will attain the age
14of 19. The order for support shall state that the termination
15date does not apply to any arrearage that may remain unpaid on
16that date. Nothing in this subsection shall be construed to
17prevent the court from modifying the order or terminating the
18order in the event the child is otherwise emancipated.
19    (g-5) If there is an unpaid arrearage or delinquency (as
20those terms are defined in the Income Withholding for Support
21Act) equal to at least one month's support obligation on the
22termination date stated in the order for support or, if there
23is no termination date stated in the order, on the date the
24child attains the age of majority or is otherwise emancipated,
25the periodic amount required to be paid for current support of
26that child immediately prior to that date shall automatically

 

 

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1continue to be an obligation, not as current support but as
2periodic payment toward satisfaction of the unpaid arrearage or
3delinquency. That periodic payment shall be in addition to any
4periodic payment previously required for satisfaction of the
5arrearage or delinquency. The total periodic amount to be paid
6toward satisfaction of the arrearage or delinquency may be
7enforced and collected by any method provided by law for
8enforcement and collection of child support, including but not
9limited to income withholding under the Income Withholding for
10Support Act. Each order for support entered or modified on or
11after the effective date of this amendatory Act of the 93rd
12General Assembly must contain a statement notifying the parties
13of the requirements of this subsection. Failure to include the
14statement in the order for support does not affect the validity
15of the order or the operation of the provisions of this
16subsection with regard to the order. This subsection shall not
17be construed to prevent or affect the establishment or
18modification of an order for support of a minor child or the
19establishment or modification of an order for support of a
20non-minor child or educational expenses under Section 513 of
21this Act.
22    (h) An order entered under this Section shall include a
23provision requiring the obligor to report to the obligee and to
24the clerk of court within 10 days each time the obligor obtains
25new employment, and each time the obligor's employment is
26terminated for any reason. The report shall be in writing and

 

 

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1shall, in the case of new employment, include the name and
2address of the new employer. Failure to report new employment
3or the termination of current employment, if coupled with
4nonpayment of support for a period in excess of 60 days, is
5indirect criminal contempt. For any obligor arrested for
6failure to report new employment bond shall be set in the
7amount of the child support that should have been paid during
8the period of unreported employment. An order entered under
9this Section shall also include a provision requiring the
10obligor and obligee parents to advise each other of a change in
11residence within 5 days of the change except when the court
12finds that the physical, mental, or emotional health of a party
13or that of a child, or both, would be seriously endangered by
14disclosure of the party's address.
15    (i) The court does not lose the powers of contempt,
16driver's license suspension, or other child support
17enforcement mechanisms, including, but not limited to,
18criminal prosecution as set forth in this Act, upon the
19emancipation of the minor child or children.
20(Source: P.A. 96-1134, eff. 7-21-10; 97-186, eff. 7-22-11;
2197-608, eff. 1-1-12; revised 10-4-11.)