Full Text of HB6981 93rd General Assembly
HB6981 93RD GENERAL ASSEMBLY
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93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 HB6981
Introduced 02/09/04, by Charles E. Jefferson SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/505 |
from Ch. 40, par. 505 |
750 ILCS 45/20.7 |
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Amends the Illinois Parentage Act of 1984 and the Marriage and Dissolution of Marriage Act. Provides that a child support installment that becomes due based upon the payment frequency as ordered by the court shall become a separate and distinct judgment. Provides that when the judgment remains unpaid for 30 days from the date due, simple interest shall begin to accrue daily on a per diem basis at the rate of 9% per annum for each day beyond the 30 day grace period. Sets out a formula for calculating the per diem interest. Provides that each child support payment made within a single installment period is to be credited first to the current support installment due with any excess or subsequent payment during the same period being credited to past due support.
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A BILL FOR
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HB6981 |
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LRB093 20918 LCB 46893 b |
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| AN ACT concerning child support.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Marriage and Dissolution of | 5 |
| Marriage Act is amended by changing Section 505 as follows:
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| (750 ILCS 5/505) (from Ch. 40, par. 505)
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| Sec. 505. Child support; contempt; penalties.
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| (a) In a proceeding for dissolution of marriage, legal | 9 |
| separation,
declaration of invalidity of marriage, a | 10 |
| proceeding for child support
following dissolution of the | 11 |
| marriage by a court which lacked personal
jurisdiction over the | 12 |
| absent spouse, a proceeding for modification of a
previous | 13 |
| order for child support under Section 510 of this Act, or any
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| proceeding authorized under Section 501 or 601 of this Act, the | 15 |
| court may
order either or both parents owing a duty of support | 16 |
| to a child of the
marriage to pay an amount reasonable and | 17 |
| necessary for his support, without
regard to marital | 18 |
| misconduct. The duty of support owed to a child
includes the | 19 |
| obligation to provide for the reasonable and necessary
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| physical, mental and emotional health needs of the child.
For | 21 |
| purposes of this Section, the term "child" shall include any | 22 |
| child under
age 18 and
any child under age 19 who is still | 23 |
| attending high school.
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| (1) The Court shall determine the minimum amount of | 25 |
| support by using the
following guidelines:
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26 | | Number of Children |
Percent of Supporting Party's |
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27 | | |
Net Income |
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28 | | 1 |
20% |
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29 | | 2 |
28% |
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30 | | 3 |
32% |
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31 | | 4 |
40% |
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32 | | 5 |
45% |
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| (2) The above guidelines shall be applied in each case | 3 |
| unless the court
makes a finding that application of the | 4 |
| guidelines would be
inappropriate, after considering the | 5 |
| best interests of the child in light of
evidence including | 6 |
| but not limited to one or more of the following relevant
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| factors:
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| (a) the financial resources and needs of the child;
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| (b) the financial resources and needs of the | 10 |
| custodial parent;
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| (c) the standard of living the child would have | 12 |
| enjoyed had the
marriage not been dissolved;
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| (d) the physical and emotional condition of the | 14 |
| child, and his
educational needs; and
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| (e) the financial resources and needs of the | 16 |
| non-custodial parent.
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| If the court deviates from the guidelines, the court's | 18 |
| finding
shall state the amount of support that would have | 19 |
| been required under the
guidelines, if determinable. The | 20 |
| court shall include the reason or reasons for
the variance | 21 |
| from the
guidelines.
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| (3) "Net income" is defined as the total of all income | 23 |
| from all
sources, minus the following deductions:
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| (a) Federal income tax (properly calculated | 25 |
| withholding or estimated
payments);
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| (b) State income tax (properly calculated | 27 |
| withholding or estimated
payments);
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| (c) Social Security (FICA payments);
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| (d) Mandatory retirement contributions required by | 30 |
| law or as a
condition of employment;
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| (e) Union dues;
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| (f) Dependent and individual | 33 |
| health/hospitalization insurance premiums;
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| (g) Prior obligations of support or maintenance | 35 |
| actually paid pursuant
to a court order;
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| (h) Expenditures for repayment of debts that |
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| represent reasonable and
necessary expenses for the | 2 |
| production of income, medical expenditures
necessary | 3 |
| to preserve life or health, reasonable expenditures | 4 |
| for the
benefit of the child and the other parent, | 5 |
| exclusive of gifts. The court
shall reduce net income | 6 |
| in determining the minimum amount of support to be
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| ordered only for the period that such payments are due | 8 |
| and shall enter an
order containing provisions for its | 9 |
| self-executing modification upon
termination of such | 10 |
| payment period.
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| (4) In cases where the court order provides for
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| health/hospitalization insurance coverage pursuant to | 13 |
| Section 505.2 of
this Act, the premiums for that insurance, | 14 |
| or that portion of the premiums
for which the supporting | 15 |
| party is responsible in the case of insurance
provided | 16 |
| through an employer's health insurance plan where
the | 17 |
| employer pays a portion of the premiums, shall be | 18 |
| subtracted
from net income in determining the minimum | 19 |
| amount of support to be ordered.
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| (4.5) In a proceeding for child support following | 21 |
| dissolution of the
marriage by a court that lacked personal | 22 |
| jurisdiction over the absent spouse,
and in which the court | 23 |
| is requiring payment of support for the period before
the | 24 |
| date an order for current support is entered, there is a | 25 |
| rebuttable
presumption
that the supporting party's net | 26 |
| income for the prior period was the same as his
or her net | 27 |
| income at the time the order for current support is | 28 |
| entered.
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| (5) If the net income cannot be determined because of | 30 |
| default or any
other reason, the court shall order support | 31 |
| in an amount considered
reasonable in the particular case. | 32 |
| The final order in all cases shall
state the support level | 33 |
| in dollar amounts.
However, if the
court finds that the | 34 |
| child support amount cannot be expressed exclusively as a
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| dollar amount because all or a portion of the payor's net | 36 |
| income is uncertain
as to source, time of payment, or |
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| amount, the court may order a percentage
amount of support | 2 |
| in addition to a specific dollar amount and enter
such | 3 |
| other orders as may be necessary to determine and enforce, | 4 |
| on a timely
basis, the applicable support ordered.
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| (6) If (i) the non-custodial parent was properly served | 6 |
| with a request
for
discovery of financial information | 7 |
| relating to the non-custodial parent's
ability to
provide | 8 |
| child support, (ii) the non-custodial parent failed to | 9 |
| comply with the
request,
despite having been ordered to do | 10 |
| so by the court, and (iii) the non-custodial
parent is not | 11 |
| present at the hearing to determine support despite having
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| received
proper notice, then any relevant financial | 13 |
| information concerning the
non-custodial parent's ability | 14 |
| to provide child support that was obtained
pursuant to
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| subpoena and proper notice shall be admitted into evidence | 16 |
| without the need to
establish any further foundation for | 17 |
| its admission.
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| (a-5) In an action to enforce an order for support based on | 19 |
| the
respondent's failure
to make support payments as required | 20 |
| by the order, notice of proceedings to
hold the respondent in | 21 |
| contempt for that failure may be served on the
respondent by | 22 |
| personal service or by regular mail addressed to the | 23 |
| respondent's
last known address. The respondent's last known | 24 |
| address may be determined from
records of the clerk of the | 25 |
| court, from the Federal Case Registry of Child
Support Orders, | 26 |
| or by any other reasonable means.
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| (b) Failure of either parent to comply with an order to pay | 28 |
| support shall
be punishable as in other cases of contempt. In | 29 |
| addition to other
penalties provided by law the Court may, | 30 |
| after finding the parent guilty
of contempt, order that the | 31 |
| parent be:
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| (1) placed on probation with such conditions of | 33 |
| probation as the Court
deems advisable;
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| (2) sentenced to periodic imprisonment for a period not | 35 |
| to exceed 6
months; provided, however, that the Court may | 36 |
| permit the parent to be
released for periods of time during |
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| the day or night to:
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| (A) work; or
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| (B) conduct a business or other self-employed | 4 |
| occupation.
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| The Court may further order any part or all of the earnings | 6 |
| of a parent
during a sentence of periodic imprisonment paid to | 7 |
| the Clerk of the Circuit
Court or to the parent having custody | 8 |
| or to the guardian having custody
of the children of the | 9 |
| sentenced parent for the support of said
children until further | 10 |
| order of the Court.
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| If there is a unity of interest and ownership sufficient to | 12 |
| render no
financial separation between a non-custodial parent | 13 |
| and another person or
persons or business entity, the court may | 14 |
| pierce the ownership veil of the
person, persons, or business | 15 |
| entity to discover assets of the non-custodial
parent held in | 16 |
| the name of that person, those persons, or that business | 17 |
| entity.
The following circumstances are sufficient to | 18 |
| authorize a court to order
discovery of the assets of a person, | 19 |
| persons, or business entity and to compel
the application of | 20 |
| any discovered assets toward payment on the judgment for
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| support:
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| (1) the non-custodial parent and the person, persons, | 23 |
| or business entity
maintain records together.
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| (2) the non-custodial parent and the person, persons, | 25 |
| or business entity
fail to maintain an arms length | 26 |
| relationship between themselves with regard to
any assets.
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| (3) the non-custodial parent transfers assets to the | 28 |
| person, persons,
or business entity with the intent to | 29 |
| perpetrate a fraud on the custodial
parent.
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| With respect to assets which
are real property, no order | 31 |
| entered under this paragraph shall affect the
rights of bona | 32 |
| fide purchasers, mortgagees, judgment creditors, or other lien
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| holders who acquire their interests in the property prior to | 34 |
| the time a notice
of lis pendens pursuant to the Code of Civil | 35 |
| Procedure or a copy of the order
is placed of record in the | 36 |
| office of the recorder of deeds for the county in
which the |
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| real property is located.
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| The court may also order in cases where the parent is 90 | 3 |
| days or more
delinquent in payment of support or has been | 4 |
| adjudicated in arrears in an
amount equal to 90 days obligation | 5 |
| or more, that the parent's Illinois driving
privileges be | 6 |
| suspended until the court
determines that the parent is in | 7 |
| compliance with the order of support.
The court may also order | 8 |
| that the parent be issued a family financial
responsibility | 9 |
| driving permit that would allow limited driving privileges for
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| employment and medical purposes in accordance with Section | 11 |
| 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit | 12 |
| court shall certify the order
suspending the driving privileges | 13 |
| of the parent or granting the issuance of a
family financial | 14 |
| responsibility driving permit to the Secretary of State on
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| forms prescribed by the Secretary. Upon receipt of the | 16 |
| authenticated
documents, the Secretary of State shall suspend | 17 |
| the parent's driving privileges
until further order of the | 18 |
| court and shall, if ordered by the court, subject to
the | 19 |
| provisions of Section 7-702.1 of the Illinois Vehicle Code, | 20 |
| issue a family
financial responsibility driving permit to the | 21 |
| parent.
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| In addition to the penalties or punishment that may be | 23 |
| imposed under this
Section, any person whose conduct | 24 |
| constitutes a violation of Section 15 of the
Non-Support | 25 |
| Punishment Act may be prosecuted under that Act, and a person
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| convicted under that Act may be sentenced in accordance with | 27 |
| that Act. The
sentence may include but need not be limited to a | 28 |
| requirement that the person
perform community service under | 29 |
| Section 50 of that Act or participate in a work
alternative | 30 |
| program under Section 50 of that Act. A person may not be | 31 |
| required
to participate in a work alternative program under | 32 |
| Section 50 of that Act if
the person is currently participating | 33 |
| in a work program pursuant to Section
505.1 of this Act.
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| A child support installment that becomes due based upon the | 35 |
| payment frequency as ordered shall be considered a separate and | 36 |
| distinct judgment pursuant to subsection (d) of Section 505 of |
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| this Act and subsection (c) of Section 14 of the Illinois | 2 |
| Parentage Act of 1984. If the judgment remains unpaid for 30 | 3 |
| days after the date due, simple interest shall begin to accrue | 4 |
| daily on a per diem basis at the rate of 9% per annum for each | 5 |
| day beyond the 30 day grace period.
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| The per diem interest shall be determined by multiplying | 7 |
| the annual rate by the amount of the judgment unsatisfied and | 8 |
| dividing that amount by 365. The per diem interest is to be | 9 |
| modified when the judgment itself has been reduced. The per | 10 |
| diem interest continues to accrue until the judgment itself is | 11 |
| satisfied.
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| Each child support payment made within a single installment | 13 |
| period is to be credited first to the current support | 14 |
| installment due with any excess or subsequent payment during | 15 |
| the same installment period being credited to past due support. | 16 |
| The distribution of any payments are not controlled by this | 17 |
| Act.
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| Each payment that is to be credited to the amount of past | 19 |
| due child support is to be applied first to the accrued per | 20 |
| diem interest of the oldest remaining unsatisfied installment | 21 |
| judgment with any remaining portion of the payment to be | 22 |
| applied to the oldest unsatisfied judgment itself.
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| A child support obligation, or any portion of a child | 24 |
| support obligation, which becomes
due and remains unpaid for 30 | 25 |
| days or more shall accrue simple interest at
the rate of 9% per | 26 |
| annum.
An order for support entered or modified on or after | 27 |
| January 1, 2002 shall
contain a statement that a child support | 28 |
| obligation required under the order, or any
portion of a | 29 |
| support obligation required under the order, that becomes due | 30 |
| and
remains unpaid for 30 days or more shall accrue simple | 31 |
| interest at the rate of
9% per annum. Failure to include the | 32 |
| statement in the order for support does
not affect the validity | 33 |
| of the order or the accrual of interest as provided in
this | 34 |
| Section.
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| (c) A one-time charge of 20% is imposable upon the amount | 36 |
| of
past-due child support owed on July 1, 1988 which has |
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| accrued under a
support order entered by the court. The charge | 2 |
| shall be imposed in
accordance with the provisions of Section | 3 |
| 10-21 of the Illinois Public Aid
Code and shall be enforced by | 4 |
| the court upon petition.
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| (d) Any new or existing support order entered by the court
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| under this Section shall be deemed to be a series of judgments | 7 |
| against the
person obligated to pay support thereunder, each | 8 |
| such judgment to be in the
amount of each payment or | 9 |
| installment of support and each such judgment to
be deemed | 10 |
| entered as of the date the corresponding payment or installment
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| becomes due under the terms of the support order. Each such | 12 |
| judgment shall
have the full force, effect and attributes of | 13 |
| any other judgment of this
State, including the ability to be | 14 |
| enforced.
A lien arises by operation of law against the real | 15 |
| and personal property of
the noncustodial parent for each | 16 |
| installment of overdue support owed by the
noncustodial parent.
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| (e) When child support is to be paid through the clerk of | 18 |
| the court in a
county of 1,000,000 inhabitants or less, the | 19 |
| order shall direct the obligor
to pay to the clerk, in addition | 20 |
| to the child support payments, all fees
imposed by the county | 21 |
| board under paragraph (3) of subsection (u) of
Section 27.1 of | 22 |
| the Clerks of Courts Act. Unless paid in cash or pursuant to
an | 23 |
| order for withholding, the payment of the fee shall be by a | 24 |
| separate
instrument from the support payment and shall be made | 25 |
| to the order of the
Clerk.
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| (f) All orders for support, when entered or
modified, shall | 27 |
| include a provision requiring the obligor to notify
the court | 28 |
| and, in cases in which a party is receiving child and spouse
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| services under Article X of the Illinois Public Aid Code, the
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| Illinois Department of Public Aid, within 7 days, (i) of the | 31 |
| name and address
of any new employer of the obligor, (ii) | 32 |
| whether the obligor has access to
health insurance coverage | 33 |
| through the employer or other group coverage and,
if so, the | 34 |
| policy name and number and the names of persons covered under
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| the policy, and (iii) of any new residential or mailing address | 36 |
| or telephone
number of the non-custodial parent. In any |
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| subsequent action to enforce a
support order, upon a sufficient | 2 |
| showing that a diligent effort has been made
to ascertain the | 3 |
| location of the non-custodial parent, service of process or
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| provision of notice necessary in the case may be made at the | 5 |
| last known
address of the non-custodial parent in any manner | 6 |
| expressly provided by the
Code of Civil Procedure or this Act, | 7 |
| which service shall be sufficient for
purposes of due process.
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| (g) An order for support shall include a date on which the | 9 |
| current
support obligation terminates. The termination date | 10 |
| shall be no earlier than
the date on which the child covered by | 11 |
| the order will attain the age of
18. However, if the child will | 12 |
| not graduate from high school until after
attaining the age of | 13 |
| 18, then the termination date shall be no earlier than the
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| earlier of the date on which the child's high school graduation | 15 |
| will occur or
the date on which the child will attain the age | 16 |
| of 19. The order for support
shall state that the termination | 17 |
| date does not apply to any arrearage that may
remain unpaid on | 18 |
| that date. Nothing in this subsection shall be construed to
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| prevent the court from modifying the order or terminating the | 20 |
| order in the
event the child is otherwise emancipated.
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| (h) An order entered under this Section shall include a | 22 |
| provision requiring
the obligor to report to the obligee and to | 23 |
| the clerk of court within 10 days
each time the obligor obtains | 24 |
| new employment, and each time the obligor's
employment is | 25 |
| terminated for any reason. The report shall be in writing and
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| shall, in the case of new employment, include the name and | 27 |
| address of the new
employer. Failure to report new employment | 28 |
| or the termination of current
employment, if coupled with | 29 |
| nonpayment of support for a period in excess of 60
days, is | 30 |
| indirect criminal contempt. For any obligor arrested for | 31 |
| failure to
report new employment bond shall be set in the | 32 |
| amount of the child support that
should have been paid during | 33 |
| the period of unreported employment. An order
entered under | 34 |
| this Section shall also include a provision requiring the | 35 |
| obligor
and obligee parents to advise each other of a change in | 36 |
| residence within 5 days
of the change except when the court |
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| finds that the physical, mental, or
emotional health of a party | 2 |
| or that of a child, or both, would be
seriously endangered by | 3 |
| disclosure of the party's address.
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| (i) The court does not lose the powers of contempt, | 5 |
| driver's license
suspension, or other child support | 6 |
| enforcement mechanisms, including, but
not limited to, | 7 |
| criminal prosecution as set forth in this Act, upon the
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| emancipation of the minor child or children.
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| (Source: P.A. 92-16, eff. 6-28-01; 92-203, eff. 8-1-01; 92-374, | 10 |
| eff.
8-15-01; 92-651, eff. 7-11-02; 92-876, eff. 6-1-03; | 11 |
| 93-148, eff. 7-10-03.)
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| Section 10. The Illinois Parentage Act of 1984 is amended | 13 |
| by changing Section 20.7 as follows:
| 14 |
| (750 ILCS 45/20.7)
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| Sec. 20.7. Interest on support obligations. A support | 16 |
| obligation, or any
portion of a support obligation, which | 17 |
| becomes due and remains unpaid for 30
days or more shall accrue | 18 |
| simple interest at the rate of 9% per annum.
A child support | 19 |
| installment that becomes due based upon the payment frequency | 20 |
| as ordered shall be considered a separate and distinct judgment | 21 |
| pursuant to subsection (d) of Section 505 of the Illinois | 22 |
| Marriage and Dissolution of Marriage Act and subsection (c) of | 23 |
| Section 14 of this Act. If the judgment remains unpaid for 30 | 24 |
| days from the date due, simple interest shall begin to accrue | 25 |
| daily on a per diem basis at the rate of 9% per annum for each | 26 |
| day beyond the 30 day grace period. | 27 |
| The per diem interest shall be determined by multiplying | 28 |
| the annual rate by the amount of the judgment unsatisfied and | 29 |
| dividing that amount by 365. The per diem interest is to be | 30 |
| modified when the judgment itself has been reduced. The per | 31 |
| diem interest continues to accrue until the judgment itself is | 32 |
| satisfied. | 33 |
| Each child support payment made within a single installment | 34 |
| period is to be credited first to the current support |
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| installment due with any excess or subsequent payment during | 2 |
| the same installment period being credited to past due support. | 3 |
| The distribution of any payments are not controlled by this | 4 |
| Act. | 5 |
| Each payment that is to be credited to the amount of past | 6 |
| due child support is to be applied first to the accrued per | 7 |
| diem interest of the oldest remaining unsatisfied installment | 8 |
| judgment with any remaining portion of the payment to be | 9 |
| applied to the oldest unsatisfied judgment itself. An order for | 10 |
| child support entered or modified on or after January 1, 2002 | 11 |
| shall
contain a statement that a child support obligation | 12 |
| required under the order, or any
portion of a child support | 13 |
| obligation required under the order, that becomes due and
| 14 |
| remains unpaid for 30 days or more shall accrue simple interest | 15 |
| at the rate of
9% per annum. Failure to include the statement | 16 |
| in the order for support does
not affect the validity of the | 17 |
| order or the accrual of interest as provided in
this Section.
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| (Source: P.A. 91-397, eff. 1-1-00; 92-374, eff. 8-15-01.)
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