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90_SB1024enr
New Act
305 ILCS 5/10-16.2 from Ch. 23, par. 10-16.2
750 ILCS 5/706.1 from Ch. 40, par. 706.1
750 ILCS 15/4.1 from Ch. 40, par. 1107.1
750 ILCS 20/26.1 from Ch. 40, par. 1226.1
750 ILCS 45/20 from Ch. 40, par. 2520
Creates the New Hire Reporting Act. Requires employers
to report newly hired employees to the Department of
Employment Security, and requires that Department to maintain
a database of reported information and share that information
with the Departments of Public Aid and Human Services,
circuit clerks, and federal offices for purposes of enabling
them to perform their duties concerning collection of child
support. Provides penalties for failure to comply with
reporting requirements. Requires the Department of Public
Aid to establish a community advisory committee to oversee
implementation of the Act and to take other actions. Amends
the income withholding provisions of the Public Aid Code, the
Marriage and Dissolution of Marriage Act, the Non-Support of
Spouse and Children Act, the Revised Uniform Reciprocal
Enforcement of Support Act, and the Parentage Act of 1984.
Provides for orders for withholding to be served by regular
or certified mail or facsimile (now, by certified mail or
personal delivery). Requires a payor's nonperformance within
specified time periods to be documented by certified mail
return receipt. Provides that an order for withholding need
not be served again on a payor if income withholding is
terminated because of an interruption in the obligor's
employment of less than 180 days. Effective immediately.
LRB9003396DJcd
SB1024 Enrolled LRB9003396DJcd
1 AN ACT concerning child support.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 New Hire Reporting Act.
6 Section 30. Toll-free telephone line; public service
7 announcements.
8 (a) The Department of Employment Security shall
9 establish a toll-free telephone line for new hire reporting,
10 employer follow-up to correct errors and facilitate
11 electronic transmission, and an expedited administrative
12 hearing process to determine reasonable cause in
13 non-compliance situations.
14 (b) The Department of Employment Security shall issue
15 public service announcements and mailings to inform employers
16 about the new hire reporting requirements and procedures
17 pursuant to Section 1801.1 of the Unemployment Insurance Act,
18 including simple instructions on completion of the Form W-4
19 and information on electronic or magnetic transmission of
20 data.
21 Section 35. Department of Public Aid duties. The
22 Department of Public Aid shall establish a community advisory
23 committee for oversight of the implementation process,
24 toll-free telephone lines for employers with child support
25 questions, an expedited hearing process for non-custodial
26 parents who contest an employer's execution of an order for
27 withholding and brochures and public service announcements
28 that inform the general public about the New Hire Directory
29 and how to utilize it, within the federal and State
30 confidentiality laws, in pursuit of child support.
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1 Section 40. Emergency judicial hearing. If the issue of
2 an employer's reasonable cause for failure to comply with the
3 reporting requirements pursuant to Section 1801.1 of the
4 Unemployment Insurance Act is not resolved through the
5 expedited administrative hearing process authorized under
6 subsection (a) of Section 30, the employer may file a
7 petition in the circuit court to seek judicial review of that
8 issue.
9 Section 90. The Illinois Public Aid Code is amended by
10 changing Section 10-16.2 as follows:
11 (305 ILCS 5/10-16.2) (from Ch. 23, par. 10-16.2)
12 (Text of Section before amendment by P.A. 89-507)
13 Sec. 10-16.2. Withholding of Income to Secure Payment of
14 Support.
15 (A) Definitions.
16 (1) "Order for support" means any order of the court
17 which provides for periodic payment of funds for the support
18 of a child or maintenance of a spouse, whether temporary or
19 final, and includes any such order which provides for:
20 (a) Modification or resumption of, or payment of
21 arrearage accrued under, a previously existing order;
22 (b) Reimbursement of support; or
23 (c) Enrollment in a health insurance plan that is
24 available to the obligor through an employer or labor
25 union or trade union.
26 (2) "Arrearage" means the total amount of unpaid support
27 obligations.
28 (3) "Delinquency" means any payment under an order for
29 support which becomes due and remains unpaid after an order
30 for withholding has been entered under subsection (B) or, for
31 purposes of subsection (K), after the last order for support
32 was entered for which no order for withholding was entered.
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1 (4) "Income" means any form of periodic payment to an
2 individual, regardless of source, including, but not limited
3 to: wages, salary, commission, compensation as an independent
4 contractor, workers' compensation, disability, annuity and
5 retirement benefits, lottery prize awards, insurance
6 proceeds, vacation pay, bonuses, profit-sharing payments and
7 any other payments, made by any person, private entity,
8 federal or state government, any unit of local government,
9 school district or any entity created by Public Act; however,
10 "income" excludes:
11 (a) Any amounts required by law to be withheld,
12 other than creditor claims, including, but not limited
13 to, federal, State and local taxes, Social Security and
14 other retirement and disability contributions;
15 (b) Union dues;
16 (c) Any amounts exempted by the federal Consumer
17 Credit Protection Act;
18 (d) Public assistance payments; and
19 (e) Unemployment insurance benefits except as
20 provided by law.
21 Any other State or local laws which limit or exempt
22 income or the amount or percentage of income that can be
23 withheld shall not apply.
24 (5) "Obligor" means the individual who owes a duty to
25 make payments under an order for support.
26 (6) "Obligee" means the individual to whom a duty of
27 support is owed or the individual's legal representative.
28 (7) "Payor" means any payor of income to an obligor.
29 (8) "Public office" means any elected official or any
30 State or local agency which is or may become responsible by
31 law for enforcement of, or which is or may become authorized
32 to enforce, an order for support, including, but not limited
33 to: the Attorney General, the Illinois Department of Public
34 Aid, the Illinois Department of Mental Health and
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1 Developmental Disabilities, the Illinois Department of
2 Children and Family Services, and the various State's
3 Attorneys, Clerks of the Circuit Court and supervisors of
4 general assistance.
5 (9) "Premium" means the dollar amount for which the
6 obligor is liable to his employer or labor union or trade
7 union and which must be paid to enroll or maintain a child in
8 a health insurance plan that is available to the obligor
9 through an employer or labor union or trade union.
10 (B) Entry of an Order for Withholding.
11 (1) Upon entry of any order for support on or after
12 January 1, 1984, the court shall enter a separate order for
13 withholding which shall not take effect unless the obligor
14 becomes delinquent in paying the order for support or the
15 obligor requests an earlier effective date; except that the
16 court may require the order for withholding to take effect
17 immediately.
18 On or after January 1, 1989, the court shall require the
19 order for withholding to take effect immediately, unless a
20 written agreement is reached between and signed by both
21 parties providing for an alternative arrangement, approved
22 and entered into the record by the court, which insures
23 payment of support. In that case, the court shall enter the
24 order for withholding which will not take effect unless the
25 obligor becomes delinquent in paying the order for support.
26 Upon entry of any order of support on or after September
27 11, 1989, if the obligor is not a United States citizen, the
28 obligor shall provide to the court the obligor's alien
29 registration number, passport number, and home country's
30 social security or national health number, if applicable; the
31 court shall make the information part of the record in the
32 case.
33 (2) An order for withholding shall be entered upon
34 petition by the obligee or public office where an order for
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1 withholding has not been previously entered.
2 (3) The order for withholding shall:
3 (a) Direct any payor to withhold a dollar amount
4 equal to the order for support; and
5 (b) Direct any payor to withhold an additional
6 dollar amount, not less than 20% of the order for
7 support, until payment in full of any delinquency stated
8 in the notice of delinquency provided for in subsection
9 (C) or (F) of this Section; and
10 (c) Direct any payor or labor union or trade union
11 to enroll a child as a beneficiary of a health insurance
12 plan and withhold or cause to be withheld, if
13 applicable, any required premium; and
14 (d) State the rights, remedies and duties of the
15 obligor under this Section; and
16 (e) Include the obligor's Social Security Number,
17 which the obligor shall disclose to the court; and
18 (f) Include the date that withholding for current
19 support terminates, which shall be the date of
20 termination of the current support obligation set forth
21 in the order for support.
22 (4) At the time the order for withholding is entered,
23 the Clerk of the Circuit Court shall provide a copy of the
24 order for withholding and the order for support to the
25 obligor and shall make copies available to the obligee and
26 public office. Any copy of the order for withholding
27 furnished to the parties under this subsection shall be
28 stamped "Not Valid".
29 (5) The order for withholding shall remain in effect for
30 as long as the order for support upon which it is based.
31 (6) The failure of an order for withholding to state an
32 arrearage is not conclusive of the issue of whether an
33 arrearage is owing.
34 (7) Notwithstanding the provisions of this subsection,
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1 if the court finds at the time of any hearing that an
2 arrearage has accrued in an amount equal to at least one
3 month's support obligation or that the obligor is 30 days
4 late in paying all or part of the order for support, the
5 court shall order immediate service of the order for
6 withholding upon the payor.
7 (8) Where the court has not required that the order for
8 withholding take effect immediately, the obligee or public
9 office may prepare and serve a notice for immediate
10 withholding upon the obligor by ordinary mail addressed to
11 the obligor at his or her last known address. The notice
12 shall state that the following circumstances have occurred:
13 (a) The parties' written agreement providing an
14 alternative arrangement to immediate withholding under
15 paragraph (1) of this subsection no longer provides for
16 timely payment of all support due; or
17 (b) The obligor has not made timely payments in
18 that the obligor has been at least 7 days late in paying
19 all or part of the order for support any of the last 6
20 consecutive dates payments were due prior to the date of
21 the notice for immediate withholding.
22 The notice for immediate withholding shall clearly state
23 that a specially certified copy of the order for withholding
24 will be sent to the payor, unless the obligor files a
25 petition contesting immediate withholding within 20 days
26 after service of the notice; however, the grounds for the
27 petition shall be limited to a dispute concerning whether the
28 circumstances stated in the notice have occurred or the
29 identity of the obligor. It shall not be grounds for the
30 petition that the obligor has made all payments due by the
31 date of the petition.
32 If the obligor files a petition contesting immediate
33 withholding within the 20-day period required under this
34 paragraph, the Clerk of the Circuit Court shall notify the
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1 obligor and the obligee or public office, as appropriate, of
2 the time and place of the hearing on the petition. Upon
3 hearing the petition, the court shall enter an order granting
4 or denying relief. It shall not be grounds for granting the
5 obligor's petition that he or she has made all payments due
6 by the date of hearing. If the court denies the obligor's
7 petition, it shall order immediate service of the order for
8 withholding and direct the clerk to provide a specially
9 certified copy of the order for withholding to the obligee or
10 public office indicating that the requirements for immediate
11 withholding under this paragraph have been met.
12 If the obligor does not file a petition contesting
13 immediate withholding within the 20-day period, the obligee
14 or public office shall file with the Clerk of the Circuit
15 Court an affidavit, with a copy of the notice for immediate
16 withholding attached thereto, stating that the notice was
17 duly served and the date on which service was effected, and
18 that the obligor has not filed a petition contesting
19 immediate withholding. The clerk shall then provide to the
20 obligee or public office a specially certified copy of the
21 order for withholding indicating that the requirements for
22 immediate withholding under this paragraph have been met.
23 Upon receipt of a specially certified copy of the order
24 for withholding, the obligee or public office may serve the
25 order on the payor, its superintendent, manager or other
26 agent, by certified mail or personal delivery. A proof of
27 service shall be filed with the Clerk of the Circuit Court.
28 (C) Notice of Delinquency.
29 (1) Whenever an obligor becomes delinquent in payment of
30 an amount equal to at least one month's support obligation
31 pursuant to the order for support or is at least 30 days late
32 in complying with all or part of the order for support,
33 whichever occurs first, the obligee or public office may
34 prepare and serve a verified notice of delinquency, together
SB1024 Enrolled -8- LRB9003396DJcd
1 with a form petition to stay service, pursuant to paragraph
2 (3) of this subsection.
3 (2) The notice of delinquency shall recite the terms of
4 the order for support and contain a computation of the period
5 and total amount of the delinquency, as of the date of the
6 notice. The notice shall clearly state that it will be sent
7 to the payor, together with a specially certified copy of the
8 order for withholding, except as provided in subsection (F),
9 unless the obligor files a petition to stay service in
10 accordance with paragraph (1) of subsection (D).
11 (3) The notice of delinquency shall be served by
12 ordinary mail addressed to the obligor at his or her last
13 known address.
14 (4) The obligor may execute a written waiver of the
15 provisions of paragraphs (1) through (3) of this subsection
16 and request immediate service upon the payor.
17 (D) Procedures to Avoid Income Withholding.
18 (1) Except as provided in subsection (F), the obligor
19 may prevent an order for withholding from being served by
20 filing a petition to stay service with the Clerk of the
21 Circuit Court, within 20 days after service of the notice of
22 delinquency; however, the grounds for the petition to stay
23 service shall be limited to:
24 (a) A dispute concerning the amount of current
25 support or the existence or amount of the delinquency;
26 (b) The identity of the obligor.
27 The Clerk of the Circuit Court shall notify the obligor
28 and the obligee or public office, as appropriate, of the time
29 and place of the hearing on the petition to stay service. The
30 court shall hold such hearing pursuant to the provisions of
31 subsection (H).
32 (2) Except as provided in subsection (F), filing of a
33 petition to stay service, within the 20-day period required
34 under this subsection, shall prohibit the obligee or public
SB1024 Enrolled -9- LRB9003396DJcd
1 office from serving the order for withholding on any payor of
2 the obligor.
3 (E) Initial Service of Order for Withholding.
4 (1) Except as provided in subsection (F), in order to
5 serve an order for withholding upon a payor, an obligee or
6 public office shall follow the procedures set forth in this
7 subsection. After 20 days following service of the notice of
8 delinquency, the obligee or public office shall file with the
9 Clerk of the Circuit Court an affidavit, with the copy of the
10 notice of delinquency attached thereto, stating:
11 (a) that the notice of delinquency has been duly
12 served and the date on which service was effected; and
13 (b) that the obligor has not filed a petition to
14 stay service, or in the alternative
15 (c) that the obligor has waived the provisions of
16 subparagraphs (a) and (b) of this paragraph (1) in
17 accordance with subsection (C)(4).
18 (2) Upon request of the obligee or public office, the
19 Clerk of the Circuit Court shall: (a) make available any
20 record of payment; and (b) determine that the file contains a
21 copy of the affidavit described in paragraph (1). The Clerk
22 shall then provide to the obligee or public office a
23 specially certified copy of the order for withholding and the
24 notice of delinquency indicating that the preconditions for
25 service have been met.
26 (3) The obligee or public office may then serve the
27 notice of delinquency and order for withholding on the payor,
28 its superintendent, manager or other agent, by regular or
29 certified mail or facsimile personal delivery. A proof of
30 service shall be filed with the Clerk of the Circuit Court.
31 (F) Subsequent Service of Order for Withholding.
32 (1) Notwithstanding the provisions of this Section, at
33 any time after the court has ordered immediate service of an
34 order for withholding or after initial service of an order
SB1024 Enrolled -10- LRB9003396DJcd
1 for withholding pursuant to subsection (E), the obligee or
2 public office may serve the order for withholding upon any
3 payor of the obligor without further notice to the obligor.
4 The obligee or public office shall provide notice to the
5 payor, pursuant to paragraph (6) of subsection (I), of any
6 payments that have been made through previous withholding or
7 any other method.
8 (2) The Clerk of the Circuit Court shall, upon request,
9 provide the obligee or public office with specially certified
10 copies of the order for withholding or the notice of
11 delinquency or both whenever the Court has ordered immediate
12 service of an order for withholding or an affidavit has been
13 placed in the court file indicating that the preconditions
14 for service have been previously met or that the requirements
15 for immediate withholding under paragraph (8) of subsection B
16 have been previously met. The obligee or public office may
17 then serve the order for withholding on the payor, its
18 superintendent, manager or other agent by regular or
19 certified mail or facsimile personal delivery. A proof of
20 service shall be filed with the Clerk of the Circuit Court.
21 (3) If a delinquency has accrued for any reason, the
22 obligee or public office may serve a notice of delinquency
23 upon the obligor pursuant to subsection (C). The obligor may
24 prevent the notice of delinquency from being served upon the
25 payor by utilizing the procedures set forth in subsection
26 (D). If no petition to stay service has been filed within the
27 required 20 day time period, the obligee or public office may
28 serve the notice of delinquency on the payor by utilizing the
29 procedures for service set forth in subsection (E).
30 (4) New service of an order for withholding is not
31 required in order to resume withholding of income in the case
32 of an obligor with respect to whom an order for withholding
33 was previously served on the payor if withholding of income
34 was terminated because of an interruption in the obligor's
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1 employment of less than 180 days.
2 (G) Duties of Payor.
3 (1) It shall be the duty of any payor who has been
4 served with a copy of the specially certified order for
5 withholding and any notice of delinquency to deduct and pay
6 over income as provided in this subsection. The payor shall
7 deduct the amount designated in the order for withholding, as
8 supplemented by the notice of delinquency and any notice
9 provided pursuant to paragraph (6) of subsection (I),
10 beginning no later than the next payment of income which is
11 payable to the obligor that occurs 14 days following the date
12 the order and any notice were mailed by certified mail or
13 placed for personal delivery. The payor may combine all
14 amounts withheld for the benefit of an obligee or public
15 office into a single payment and transmit the payment with a
16 listing of obligors from whom withholding has been effected.
17 The payor shall pay the amount withheld to the obligee or
18 public office within 10 calendar days of the date income is
19 paid to the obligor in accordance with the order for
20 withholding and any subsequent notification received from the
21 public office redirecting payments. If the payor knowingly
22 fails to pay any amount withheld to the obligee or public
23 office within 10 calendar days of the date income is paid to
24 the obligor, the payor shall pay a penalty of $100 for each
25 day that the withheld amount is not paid to the obligee or
26 public office after the period of 10 calendar days has
27 expired. The failure of a payor, on more than one occasion,
28 to pay amounts withheld to the obligee or public office
29 within 10 calendar days of the date income is not paid to the
30 obligor creates a presumption that the payor knowingly failed
31 to pay the amounts. This penalty may be collected in a civil
32 action which may be brought against the payor in favor of the
33 obligee. A finding of a payor's nonperformance within the
34 time required under this Section must be documented by a
SB1024 Enrolled -12- LRB9003396DJcd
1 certified mail return receipt showing the date the order for
2 withholding was served on the payor. For purposes of this
3 Section, a withheld amount shall be considered paid by a
4 payor on the date it is mailed by the payor, or on the date
5 an electronic funds transfer of the amount has been initiated
6 by the payor, or on the date delivery of the amount has been
7 initiated by the payor. For each deduction, the payor shall
8 provide the obligee or public office, at the time of
9 transmittal, with the date income was paid from which support
10 was withheld.
11 Upon receipt of an order requiring that a minor child be
12 named as a beneficiary of a health insurance plan available
13 through an employer or labor union or trade union, the
14 employer or labor union or trade union shall immediately
15 enroll the minor child as a beneficiary in the health
16 insurance plan designated by the court order. The employer
17 shall withhold any required premiums and pay over any amounts
18 so withheld and any additional amounts the employer pays to
19 the insurance carrier in a timely manner. The employer or
20 labor union or trade union shall mail to the obligee, within
21 15 days of enrollment or upon request, notice of the date of
22 coverage, information on the dependent coverage plan, and all
23 forms necessary to obtain reimbursement for covered health
24 expenses, such as would be made available to a new employee.
25 When an order for dependent coverage is in effect and the
26 insurance coverage is terminated or changed for any reason,
27 the employer or labor union or trade union shall notify the
28 obligee within 10 days of the termination or change date
29 along with notice of conversion privileges.
30 For withholding of income, the payor shall be entitled to
31 receive a fee not to exceed $5 per month to be taken from the
32 income to be paid to the obligor.
33 (2) Whenever the obligor is no longer receiving income
34 from the payor, the payor shall return a copy of the order
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1 for withholding to the obligee or public office and shall
2 provide information for the purpose of enforcing this
3 Section.
4 (3) Withholding of income under this Section shall be
5 made without regard to any prior or subsequent garnishments,
6 attachments, wage assignments, or any other claims of
7 creditors. Withholding of income under this Section shall
8 not be in excess of the maximum amounts permitted under the
9 federal Consumer Credit Protection Act. If the payor has been
10 served with more than one order for withholding pertaining to
11 the same obligor, the payor shall allocate income available
12 for withholding on a proportionate share basis, giving
13 priority to current support payments. If there is any income
14 available for withholding after withholding for all current
15 support obligations, the payor shall allocate the income to
16 past due support payments ordered in non-AFDC matters and
17 then to past due support payments ordered in AFDC matters,
18 both on a proportionate share basis. Payment as required by
19 the order for withholding shall be a complete defense by the
20 payor against any claims of the obligor or his creditors as
21 to the sum so paid.
22 (4) No payor shall discharge, discipline, refuse to hire
23 or otherwise penalize any obligor because of the duty to
24 withhold income.
25 (H) Petitions to Stay Service or to Modify, Suspend or
26 Terminate Orders for Withholding.
27 (1) When an obligor files a petition to stay service,
28 the court, after due notice to all parties, shall hear the
29 matter as soon as practicable and shall enter an order
30 granting or denying relief, amending the notice of
31 delinquency, amending the order for withholding, where
32 applicable, or otherwise resolving the matter. If the court
33 finds that a delinquency existed when the notice of
34 delinquency was served upon the obligor, in an amount of at
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1 least one month's support obligation, or that the obligor was
2 at least 30 days late in paying all or part of the order for
3 support, the court shall order immediate service of the order
4 for withholding. Where the court cannot promptly resolve any
5 dispute over the amount of the delinquency, the court may
6 order immediate service of the order for withholding as to
7 any undisputed amounts specified in an amended notice of
8 delinquency, and may continue the hearing on the disputed
9 amounts.
10 (2) At any time, an obligor, obligee, public office or
11 Clerk of the Circuit Court may petition the court to:
12 (a) Modify, suspend or terminate the order for
13 withholding because of a modification, suspension or
14 termination of the underlying order for support; or
15 (b) Modify the amount of income to be withheld to
16 reflect payment in full or in part of the delinquency or
17 arrearage by income withholding or otherwise; or
18 (c) Suspend the order for withholding because of
19 inability to deliver income withheld to the obligee due
20 to the obligee's failure to provide a mailing address or
21 other means of delivery.
22 (3) The obligor, obligee or public office shall serve on
23 the payor, by certified mail or personal delivery, a copy of
24 any order entered pursuant to this subsection that affects
25 the duties of the payor.
26 (4) At any time, a public office or Clerk of the Circuit
27 Court may serve a notice on the payor to:
28 (a) cease withholding of income for payment of
29 current support for a child when the support obligation
30 for that child has automatically ceased under the order
31 for support through emancipation or otherwise; or
32 (b) cease withholding of income for payment of
33 delinquency or arrearage when the delinquency or
34 arrearage has been paid in full.
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1 (5) The notice provided for under paragraph (4) of this
2 subsection shall be served on the payor by ordinary mail, and
3 a copy shall be provided to the obligor and the obligee. A
4 copy of the notice shall be filed with the Clerk of the
5 Circuit Court.
6 (6) The order for withholding shall continue to be
7 binding upon the payor until service of any order of the
8 court or notice entered or provided for under this
9 subsection.
10 (I) Additional Duties.
11 (1) An obligee who is receiving income withholding
12 payments under this Section shall notify the payor, if the
13 obligee receives the payments directly from the payor, or the
14 public office or the Clerk of the Circuit Court, as
15 appropriate, of any change of address within 7 days of such
16 change.
17 (2) An obligee who is a recipient of public aid shall
18 send a copy of any notice of delinquency filed pursuant to
19 subsection (C) to the Bureau of Child Support of the Illinois
20 Department of Public Aid.
21 (3) Each obligor shall notify the obligee and the Clerk
22 of the Circuit Court of any change of address within 7 days.
23 (4) An obligor whose income is being withheld or who has
24 been served with a notice of delinquency pursuant to this
25 Section shall notify the obligee and the Clerk of the Circuit
26 Court of any new payor, within 7 days.
27 (5) When the Illinois Department of Public Aid is no
28 longer authorized to receive payments for the obligee, it
29 shall, within 7 days, notify the payor or, where appropriate,
30 the Clerk of the Circuit Court, to redirect income
31 withholding payments to the obligee.
32 (6) The obligee or public office shall provide notice to
33 the payor and Clerk of the Circuit Court of any other support
34 payment made, including but not limited to, a set-off under
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1 federal and State law or partial payment of the delinquency
2 or arrearage, or both.
3 (7) Any public office and Clerk of the Circuit Court
4 which collects, disburses or receives payments pursuant to
5 orders for withholding shall maintain complete, accurate, and
6 clear records of all payments and their disbursements.
7 Certified copies of payment records maintained by a public
8 office or Clerk of the Circuit Court shall, without further
9 proof, be admitted into evidence in any legal proceedings
10 under this Section.
11 (8) The Illinois Department of Public Aid shall design
12 suggested legal forms for proceeding under this Section and
13 shall make available to the courts such forms and
14 informational materials which describe the procedures and
15 remedies set forth herein for distribution to all parties in
16 support actions.
17 (9) At the time of transmitting each support payment,
18 the clerk of the circuit court shall provide the obligee or
19 public office, as appropriate, with any information furnished
20 by the payor as to the date income was paid from which such
21 support was withheld.
22 (J) Penalties.
23 (1) Where a payor wilfully fails to withhold or pay over
24 income pursuant to a properly served, specially certified
25 order for withholding and any notice of delinquency, or
26 wilfully discharges, disciplines, refuses to hire or
27 otherwise penalizes an obligor as prohibited by subsection
28 (G), or otherwise fails to comply with any duties imposed by
29 this Section, the obligee, public office or obligor, as
30 appropriate, may file a complaint with the court against the
31 payor. The clerk of the circuit court shall notify the
32 obligee or public office, as appropriate, and the obligor and
33 payor of the time and place of the hearing on the complaint.
34 The court shall resolve any factual dispute including, but
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1 not limited to, a denial that the payor is paying or has paid
2 income to the obligor. Upon a finding in favor of the
3 complaining party, the court:
4 (a) Shall enter judgment and direct the enforcement
5 thereof for the total amount that the payor wilfully
6 failed to withhold or pay over; and
7 (b) May order employment or reinstatement of or
8 restitution to the obligor, or both, where the obligor
9 has been discharged, disciplined, denied employment or
10 otherwise penalized by the payor and may impose a fine
11 upon the payor not to exceed $200.
12 (2) Any obligee, public office or obligor who wilfully
13 initiates a false proceeding under this Section or who
14 wilfully fails to comply with the requirements of this
15 Section shall be punished as in cases of contempt of court.
16 (K) Alternative Procedures for Entry and Service of an Order
17 for Withholding.
18 (1) Effective January 1, 1987, in any matter in which an
19 order for withholding has not been entered for any reason,
20 based upon the last order for support that has been entered,
21 and in which the obligor has become delinquent in payment of
22 an amount equal to at least one month's support obligation
23 pursuant to the last order for support or is at least 30 days
24 late in complying with all or part of the order for support,
25 the obligee or public office may prepare and serve an order
26 for withholding pursuant to the procedures set forth in this
27 subsection.
28 (2) The obligee or public office shall:
29 (a) Prepare a proposed order for withholding for
30 immediate service as provided by paragraphs (1) and (3)
31 of subsection (B), except that the minimum 20%
32 delinquency payment shall be used;
33 (b) Prepare a notice of delinquency as provided by
34 paragraphs (1) and (2) of subsection (C), except the
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1 notice shall state further that the order for withholding
2 has not been entered by the court and the conditions
3 under which the order will be entered; and
4 (c) Serve the notice of delinquency and form
5 petition to stay service as provided by paragraph (3) of
6 subsection (C), together with the proposed order for
7 withholding, which shall be marked "COPY ONLY".
8 (3) After 20 days following service of the notice of
9 delinquency and proposed order for withholding, in lieu of
10 the provisions of subsection (E), the obligee or public
11 office shall file with the Clerk of the Circuit Court an
12 affidavit, with a copy of the notice of delinquency and
13 proposed order for withholding attached thereto, stating
14 that:
15 (a) The notice of delinquency and proposed order
16 for withholding have been served upon the obligor and the
17 date on which service was effected;
18 (b) The obligor has not filed a petition to stay
19 service within 20 days of service of such notice and
20 order; and
21 (c) The proposed order for withholding accurately
22 states the terms and amounts contained in the last order
23 for support.
24 (4) Upon the court's satisfaction that the procedures
25 set forth in this subsection have been met, it shall enter
26 the order for withholding.
27 (5) The Clerk shall then provide to the obligee or
28 public office a specially certified copy of the order for
29 withholding and the notice of delinquency indicating that the
30 preconditions for service have been met.
31 (6) The obligee or public office shall serve the
32 specially certified copies of the order for withholding and
33 the notice of delinquency on the payor, its superintendent,
34 manager or other agent by certified mail or personal
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1 delivery. A proof of service shall be filed with the Clerk
2 of the Circuit Court.
3 (7) If the obligor requests in writing that income
4 withholding become effective prior to becoming delinquent in
5 payment of an amount equal to one month's support obligation
6 pursuant to the last order for support, or prior to becoming
7 30 days late in paying all or part of the order for support,
8 the obligee or public office shall file an affidavit with the
9 Clerk of the circuit Court, with a proposed order for
10 withholding attached, stating that the proposed order
11 accurately states the terms and amounts contained in the last
12 order for support and the obligor's request for immediate
13 service. The provisions of paragraphs (4) through (6) of
14 this subsection shall apply, except that a notice of
15 delinquency shall not be required.
16 (8) All other provisions of this Section shall be
17 applicable with respect to the provisions of this subsection
18 (K), except that under paragraph (1) of subsection (H), the
19 court may also amend the proposed order for withholding to
20 conform to the last order for support.
21 (9) Nothing in this subsection shall be construed as
22 limiting the requirements of paragraph (1) of subsection (B)
23 with respect to the entry of a separate order for withholding
24 upon entry of any order for support.
25 (L) Remedies in Addition to Other Laws.
26 (1) The rights, remedies, duties and penalties created
27 by this Section are in addition to and not in substitution
28 for any other rights, remedies, duties and penalties created
29 by any other law.
30 (2) Nothing in this Section shall be construed as
31 invalidating any assignment of wages or benefits executed
32 prior to January 1, 1984.
33 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
34 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
SB1024 Enrolled -20- LRB9003396DJcd
1 (Text of Section after amendment by P.A. 89-507)
2 Sec. 10-16.2. Withholding of Income to Secure Payment of
3 Support.
4 (A) Definitions.
5 (1) "Order for support" means any order of the court
6 which provides for periodic payment of funds for the support
7 of a child or maintenance of a spouse, whether temporary or
8 final, and includes any such order which provides for:
9 (a) Modification or resumption of, or payment of
10 arrearage accrued under, a previously existing order;
11 (b) Reimbursement of support; or
12 (c) Enrollment in a health insurance plan that is
13 available to the obligor through an employer or labor
14 union or trade union.
15 (2) "Arrearage" means the total amount of unpaid support
16 obligations.
17 (3) "Delinquency" means any payment under an order for
18 support which becomes due and remains unpaid after an order
19 for withholding has been entered under subsection (B) or, for
20 purposes of subsection (K), after the last order for support
21 was entered for which no order for withholding was entered.
22 (4) "Income" means any form of periodic payment to an
23 individual, regardless of source, including, but not limited
24 to: wages, salary, commission, compensation as an independent
25 contractor, workers' compensation, disability, annuity and
26 retirement benefits, lottery prize awards, insurance
27 proceeds, vacation pay, bonuses, profit-sharing payments and
28 any other payments, made by any person, private entity,
29 federal or state government, any unit of local government,
30 school district or any entity created by Public Act; however,
31 "income" excludes:
32 (a) Any amounts required by law to be withheld,
33 other than creditor claims, including, but not limited
34 to, federal, State and local taxes, Social Security and
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1 other retirement and disability contributions;
2 (b) Union dues;
3 (c) Any amounts exempted by the federal Consumer
4 Credit Protection Act;
5 (d) Public assistance payments; and
6 (e) Unemployment insurance benefits except as
7 provided by law.
8 Any other State or local laws which limit or exempt
9 income or the amount or percentage of income that can be
10 withheld shall not apply.
11 (5) "Obligor" means the individual who owes a duty to
12 make payments under an order for support.
13 (6) "Obligee" means the individual to whom a duty of
14 support is owed or the individual's legal representative.
15 (7) "Payor" means any payor of income to an obligor.
16 (8) "Public office" means any elected official or any
17 State or local agency which is or may become responsible by
18 law for enforcement of, or which is or may become authorized
19 to enforce, an order for support, including, but not limited
20 to: the Attorney General, the Illinois Department of Public
21 Aid, the Illinois Department of Human Services (as successor
22 to the Department of Mental Health and Developmental
23 Disabilities), the Illinois Department of Children and Family
24 Services, and the various State's Attorneys, Clerks of the
25 Circuit Court and supervisors of general assistance.
26 (9) "Premium" means the dollar amount for which the
27 obligor is liable to his employer or labor union or trade
28 union and which must be paid to enroll or maintain a child in
29 a health insurance plan that is available to the obligor
30 through an employer or labor union or trade union.
31 (B) Entry of an Order for Withholding.
32 (1) Upon entry of any order for support on or after
33 January 1, 1984, the court shall enter a separate order for
34 withholding which shall not take effect unless the obligor
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1 becomes delinquent in paying the order for support or the
2 obligor requests an earlier effective date; except that the
3 court may require the order for withholding to take effect
4 immediately.
5 On or after January 1, 1989, the court shall require the
6 order for withholding to take effect immediately, unless a
7 written agreement is reached between and signed by both
8 parties providing for an alternative arrangement, approved
9 and entered into the record by the court, which insures
10 payment of support. In that case, the court shall enter the
11 order for withholding which will not take effect unless the
12 obligor becomes delinquent in paying the order for support.
13 Upon entry of any order of support on or after September
14 11, 1989, if the obligor is not a United States citizen, the
15 obligor shall provide to the court the obligor's alien
16 registration number, passport number, and home country's
17 social security or national health number, if applicable; the
18 court shall make the information part of the record in the
19 case.
20 (2) An order for withholding shall be entered upon
21 petition by the obligee or public office where an order for
22 withholding has not been previously entered.
23 (3) The order for withholding shall:
24 (a) Direct any payor to withhold a dollar amount
25 equal to the order for support; and
26 (b) Direct any payor to withhold an additional
27 dollar amount, not less than 20% of the order for
28 support, until payment in full of any delinquency stated
29 in the notice of delinquency provided for in subsection
30 (C) or (F) of this Section; and
31 (c) Direct any payor or labor union or trade union
32 to enroll a child as a beneficiary of a health insurance
33 plan and withhold or cause to be withheld, if
34 applicable, any required premium; and
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1 (d) State the rights, remedies and duties of the
2 obligor under this Section; and
3 (e) Include the obligor's Social Security Number,
4 which the obligor shall disclose to the court; and
5 (f) Include the date that withholding for current
6 support terminates, which shall be the date of
7 termination of the current support obligation set forth
8 in the order for support.
9 (4) At the time the order for withholding is entered,
10 the Clerk of the Circuit Court shall provide a copy of the
11 order for withholding and the order for support to the
12 obligor and shall make copies available to the obligee and
13 public office. Any copy of the order for withholding
14 furnished to the parties under this subsection shall be
15 stamped "Not Valid".
16 (5) The order for withholding shall remain in effect for
17 as long as the order for support upon which it is based.
18 (6) The failure of an order for withholding to state an
19 arrearage is not conclusive of the issue of whether an
20 arrearage is owing.
21 (7) Notwithstanding the provisions of this subsection,
22 if the court finds at the time of any hearing that an
23 arrearage has accrued in an amount equal to at least one
24 month's support obligation or that the obligor is 30 days
25 late in paying all or part of the order for support, the
26 court shall order immediate service of the order for
27 withholding upon the payor.
28 (8) Where the court has not required that the order for
29 withholding take effect immediately, the obligee or public
30 office may prepare and serve a notice for immediate
31 withholding upon the obligor by ordinary mail addressed to
32 the obligor at his or her last known address. The notice
33 shall state that the following circumstances have occurred:
34 (a) The parties' written agreement providing an
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1 alternative arrangement to immediate withholding under
2 paragraph (1) of this subsection no longer provides for
3 timely payment of all support due; or
4 (b) The obligor has not made timely payments in
5 that the obligor has been at least 7 days late in paying
6 all or part of the order for support any of the last 6
7 consecutive dates payments were due prior to the date of
8 the notice for immediate withholding.
9 The notice for immediate withholding shall clearly state
10 that a specially certified copy of the order for withholding
11 will be sent to the payor, unless the obligor files a
12 petition contesting immediate withholding within 20 days
13 after service of the notice; however, the grounds for the
14 petition shall be limited to a dispute concerning whether the
15 circumstances stated in the notice have occurred or the
16 identity of the obligor. It shall not be grounds for the
17 petition that the obligor has made all payments due by the
18 date of the petition.
19 If the obligor files a petition contesting immediate
20 withholding within the 20-day period required under this
21 paragraph, the Clerk of the Circuit Court shall notify the
22 obligor and the obligee or public office, as appropriate, of
23 the time and place of the hearing on the petition. Upon
24 hearing the petition, the court shall enter an order granting
25 or denying relief. It shall not be grounds for granting the
26 obligor's petition that he or she has made all payments due
27 by the date of hearing. If the court denies the obligor's
28 petition, it shall order immediate service of the order for
29 withholding and direct the clerk to provide a specially
30 certified copy of the order for withholding to the obligee or
31 public office indicating that the requirements for immediate
32 withholding under this paragraph have been met.
33 If the obligor does not file a petition contesting
34 immediate withholding within the 20-day period, the obligee
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1 or public office shall file with the Clerk of the Circuit
2 Court an affidavit, with a copy of the notice for immediate
3 withholding attached thereto, stating that the notice was
4 duly served and the date on which service was effected, and
5 that the obligor has not filed a petition contesting
6 immediate withholding. The clerk shall then provide to the
7 obligee or public office a specially certified copy of the
8 order for withholding indicating that the requirements for
9 immediate withholding under this paragraph have been met.
10 Upon receipt of a specially certified copy of the order
11 for withholding, the obligee or public office may serve the
12 order on the payor, its superintendent, manager or other
13 agent, by certified mail or personal delivery. A proof of
14 service shall be filed with the Clerk of the Circuit Court.
15 (C) Notice of Delinquency.
16 (1) Whenever an obligor becomes delinquent in payment of
17 an amount equal to at least one month's support obligation
18 pursuant to the order for support or is at least 30 days late
19 in complying with all or part of the order for support,
20 whichever occurs first, the obligee or public office may
21 prepare and serve a verified notice of delinquency, together
22 with a form petition to stay service, pursuant to paragraph
23 (3) of this subsection.
24 (2) The notice of delinquency shall recite the terms of
25 the order for support and contain a computation of the period
26 and total amount of the delinquency, as of the date of the
27 notice. The notice shall clearly state that it will be sent
28 to the payor, together with a specially certified copy of the
29 order for withholding, except as provided in subsection (F),
30 unless the obligor files a petition to stay service in
31 accordance with paragraph (1) of subsection (D).
32 (3) The notice of delinquency shall be served by
33 ordinary mail addressed to the obligor at his or her last
34 known address.
SB1024 Enrolled -26- LRB9003396DJcd
1 (4) The obligor may execute a written waiver of the
2 provisions of paragraphs (1) through (3) of this subsection
3 and request immediate service upon the payor.
4 (D) Procedures to Avoid Income Withholding.
5 (1) Except as provided in subsection (F), the obligor
6 may prevent an order for withholding from being served by
7 filing a petition to stay service with the Clerk of the
8 Circuit Court, within 20 days after service of the notice of
9 delinquency; however, the grounds for the petition to stay
10 service shall be limited to:
11 (a) A dispute concerning the amount of current
12 support or the existence or amount of the delinquency;
13 (b) The identity of the obligor.
14 The Clerk of the Circuit Court shall notify the obligor
15 and the obligee or public office, as appropriate, of the time
16 and place of the hearing on the petition to stay service. The
17 court shall hold such hearing pursuant to the provisions of
18 subsection (H).
19 (2) Except as provided in subsection (F), filing of a
20 petition to stay service, within the 20-day period required
21 under this subsection, shall prohibit the obligee or public
22 office from serving the order for withholding on any payor of
23 the obligor.
24 (E) Initial Service of Order for Withholding.
25 (1) Except as provided in subsection (F), in order to
26 serve an order for withholding upon a payor, an obligee or
27 public office shall follow the procedures set forth in this
28 subsection. After 20 days following service of the notice of
29 delinquency, the obligee or public office shall file with the
30 Clerk of the Circuit Court an affidavit, with the copy of the
31 notice of delinquency attached thereto, stating:
32 (a) that the notice of delinquency has been duly
33 served and the date on which service was effected; and
34 (b) that the obligor has not filed a petition to
SB1024 Enrolled -27- LRB9003396DJcd
1 stay service, or in the alternative
2 (c) that the obligor has waived the provisions of
3 subparagraphs (a) and (b) of this paragraph (1) in
4 accordance with subsection (C)(4).
5 (2) Upon request of the obligee or public office, the
6 Clerk of the Circuit Court shall: (a) make available any
7 record of payment; and (b) determine that the file contains a
8 copy of the affidavit described in paragraph (1). The Clerk
9 shall then provide to the obligee or public office a
10 specially certified copy of the order for withholding and the
11 notice of delinquency indicating that the preconditions for
12 service have been met.
13 (3) The obligee or public office may then serve the
14 notice of delinquency and order for withholding on the payor,
15 its superintendent, manager or other agent, by regular or
16 certified mail or facsimile personal delivery. A proof of
17 service shall be filed with the Clerk of the Circuit Court.
18 (F) Subsequent Service of Order for Withholding.
19 (1) Notwithstanding the provisions of this Section, at
20 any time after the court has ordered immediate service of an
21 order for withholding or after initial service of an order
22 for withholding pursuant to subsection (E), the obligee or
23 public office may serve the order for withholding upon any
24 payor of the obligor without further notice to the obligor.
25 The obligee or public office shall provide notice to the
26 payor, pursuant to paragraph (6) of subsection (I), of any
27 payments that have been made through previous withholding or
28 any other method.
29 (2) The Clerk of the Circuit Court shall, upon request,
30 provide the obligee or public office with specially certified
31 copies of the order for withholding or the notice of
32 delinquency or both whenever the Court has ordered immediate
33 service of an order for withholding or an affidavit has been
34 placed in the court file indicating that the preconditions
SB1024 Enrolled -28- LRB9003396DJcd
1 for service have been previously met or that the requirements
2 for immediate withholding under paragraph (8) of subsection B
3 have been previously met. The obligee or public office may
4 then serve the order for withholding on the payor, its
5 superintendent, manager or other agent by regular or
6 certified mail or facsimile personal delivery. A proof of
7 service shall be filed with the Clerk of the Circuit Court.
8 (3) If a delinquency has accrued for any reason, the
9 obligee or public office may serve a notice of delinquency
10 upon the obligor pursuant to subsection (C). The obligor may
11 prevent the notice of delinquency from being served upon the
12 payor by utilizing the procedures set forth in subsection
13 (D). If no petition to stay service has been filed within the
14 required 20 day time period, the obligee or public office may
15 serve the notice of delinquency on the payor by utilizing the
16 procedures for service set forth in subsection (E).
17 (4) New service of an order for withholding is not
18 required in order to resume withholding of income in the case
19 of an obligor with respect to whom an order for withholding
20 was previously served on the payor if withholding of income
21 was terminated because of an interruption in the obligor's
22 employment of less than 180 days.
23 (G) Duties of Payor.
24 (1) It shall be the duty of any payor who has been
25 served with a copy of the specially certified order for
26 withholding and any notice of delinquency to deduct and pay
27 over income as provided in this subsection. The payor shall
28 deduct the amount designated in the order for withholding, as
29 supplemented by the notice of delinquency and any notice
30 provided pursuant to paragraph (6) of subsection (I),
31 beginning no later than the next payment of income which is
32 payable to the obligor that occurs 14 days following the date
33 the order and any notice were mailed by certified mail or
34 placed for personal delivery. The payor may combine all
SB1024 Enrolled -29- LRB9003396DJcd
1 amounts withheld for the benefit of an obligee or public
2 office into a single payment and transmit the payment with a
3 listing of obligors from whom withholding has been effected.
4 The payor shall pay the amount withheld to the obligee or
5 public office within 10 calendar days of the date income is
6 paid to the obligor in accordance with the order for
7 withholding and any subsequent notification received from the
8 public office redirecting payments. If the payor knowingly
9 fails to pay any amount withheld to the obligee or public
10 office within 10 calendar days of the date income is paid to
11 the obligor, the payor shall pay a penalty of $100 for each
12 day that the withheld amount is not paid to the obligee or
13 public office after the period of 10 calendar days has
14 expired. The failure of a payor, on more than one occasion,
15 to pay amounts withheld to the obligee or public office
16 within 10 calendar days of the date income is not paid to the
17 obligor creates a presumption that the payor knowingly failed
18 to pay the amounts. This penalty may be collected in a civil
19 action which may be brought against the payor in favor of the
20 obligee. A finding of a payor's nonperformance within the
21 time required under this Section must be documented by a
22 certified mail return receipt showing the date the order for
23 withholding was served on the payor. For purposes of this
24 Section, a withheld amount shall be considered paid by a
25 payor on the date it is mailed by the payor, or on the date
26 an electronic funds transfer of the amount has been initiated
27 by the payor, or on the date delivery of the amount has been
28 initiated by the payor. For each deduction, the payor shall
29 provide the obligee or public office, at the time of
30 transmittal, with the date income was paid from which support
31 was withheld.
32 Upon receipt of an order requiring that a minor child be
33 named as a beneficiary of a health insurance plan available
34 through an employer or labor union or trade union, the
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1 employer or labor union or trade union shall immediately
2 enroll the minor child as a beneficiary in the health
3 insurance plan designated by the court order. The employer
4 shall withhold any required premiums and pay over any amounts
5 so withheld and any additional amounts the employer pays to
6 the insurance carrier in a timely manner. The employer or
7 labor union or trade union shall mail to the obligee, within
8 15 days of enrollment or upon request, notice of the date of
9 coverage, information on the dependent coverage plan, and all
10 forms necessary to obtain reimbursement for covered health
11 expenses, such as would be made available to a new employee.
12 When an order for dependent coverage is in effect and the
13 insurance coverage is terminated or changed for any reason,
14 the employer or labor union or trade union shall notify the
15 obligee within 10 days of the termination or change date
16 along with notice of conversion privileges.
17 For withholding of income, the payor shall be entitled to
18 receive a fee not to exceed $5 per month to be taken from the
19 income to be paid to the obligor.
20 (2) Whenever the obligor is no longer receiving income
21 from the payor, the payor shall return a copy of the order
22 for withholding to the obligee or public office and shall
23 provide information for the purpose of enforcing this
24 Section.
25 (3) Withholding of income under this Section shall be
26 made without regard to any prior or subsequent garnishments,
27 attachments, wage assignments, or any other claims of
28 creditors. Withholding of income under this Section shall
29 not be in excess of the maximum amounts permitted under the
30 federal Consumer Credit Protection Act. If the payor has been
31 served with more than one order for withholding pertaining to
32 the same obligor, the payor shall allocate income available
33 for withholding on a proportionate share basis, giving
34 priority to current support payments. If there is any income
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1 available for withholding after withholding for all current
2 support obligations, the payor shall allocate the income to
3 past due support payments ordered in non-AFDC matters and
4 then to past due support payments ordered in AFDC matters,
5 both on a proportionate share basis. Payment as required by
6 the order for withholding shall be a complete defense by the
7 payor against any claims of the obligor or his creditors as
8 to the sum so paid.
9 (4) No payor shall discharge, discipline, refuse to hire
10 or otherwise penalize any obligor because of the duty to
11 withhold income.
12 (H) Petitions to Stay Service or to Modify, Suspend or
13 Terminate Orders for Withholding.
14 (1) When an obligor files a petition to stay service,
15 the court, after due notice to all parties, shall hear the
16 matter as soon as practicable and shall enter an order
17 granting or denying relief, amending the notice of
18 delinquency, amending the order for withholding, where
19 applicable, or otherwise resolving the matter. If the court
20 finds that a delinquency existed when the notice of
21 delinquency was served upon the obligor, in an amount of at
22 least one month's support obligation, or that the obligor was
23 at least 30 days late in paying all or part of the order for
24 support, the court shall order immediate service of the order
25 for withholding. Where the court cannot promptly resolve any
26 dispute over the amount of the delinquency, the court may
27 order immediate service of the order for withholding as to
28 any undisputed amounts specified in an amended notice of
29 delinquency, and may continue the hearing on the disputed
30 amounts.
31 (2) At any time, an obligor, obligee, public office or
32 Clerk of the Circuit Court may petition the court to:
33 (a) Modify, suspend or terminate the order for
34 withholding because of a modification, suspension or
SB1024 Enrolled -32- LRB9003396DJcd
1 termination of the underlying order for support; or
2 (b) Modify the amount of income to be withheld to
3 reflect payment in full or in part of the delinquency or
4 arrearage by income withholding or otherwise; or
5 (c) Suspend the order for withholding because of
6 inability to deliver income withheld to the obligee due
7 to the obligee's failure to provide a mailing address or
8 other means of delivery.
9 (3) The obligor, obligee or public office shall serve on
10 the payor, by certified mail or personal delivery, a copy of
11 any order entered pursuant to this subsection that affects
12 the duties of the payor.
13 (4) At any time, a public office or Clerk of the Circuit
14 Court may serve a notice on the payor to:
15 (a) cease withholding of income for payment of
16 current support for a child when the support obligation
17 for that child has automatically ceased under the order
18 for support through emancipation or otherwise; or
19 (b) cease withholding of income for payment of
20 delinquency or arrearage when the delinquency or
21 arrearage has been paid in full.
22 (5) The notice provided for under paragraph (4) of this
23 subsection shall be served on the payor by ordinary mail, and
24 a copy shall be provided to the obligor and the obligee. A
25 copy of the notice shall be filed with the Clerk of the
26 Circuit Court.
27 (6) The order for withholding shall continue to be
28 binding upon the payor until service of any order of the
29 court or notice entered or provided for under this
30 subsection.
31 (I) Additional Duties.
32 (1) An obligee who is receiving income withholding
33 payments under this Section shall notify the payor, if the
34 obligee receives the payments directly from the payor, or the
SB1024 Enrolled -33- LRB9003396DJcd
1 public office or the Clerk of the Circuit Court, as
2 appropriate, of any change of address within 7 days of such
3 change.
4 (2) An obligee who is a recipient of public aid shall
5 send a copy of any notice of delinquency filed pursuant to
6 subsection (C) to the Bureau of Child Support of the Illinois
7 Department of Public Aid.
8 (3) Each obligor shall notify the obligee and the Clerk
9 of the Circuit Court of any change of address within 7 days.
10 (4) An obligor whose income is being withheld or who has
11 been served with a notice of delinquency pursuant to this
12 Section shall notify the obligee and the Clerk of the Circuit
13 Court of any new payor, within 7 days.
14 (5) When the Illinois Department of Public Aid is no
15 longer authorized to receive payments for the obligee, it
16 shall, within 7 days, notify the payor or, where appropriate,
17 the Clerk of the Circuit Court, to redirect income
18 withholding payments to the obligee.
19 (6) The obligee or public office shall provide notice to
20 the payor and Clerk of the Circuit Court of any other support
21 payment made, including but not limited to, a set-off under
22 federal and State law or partial payment of the delinquency
23 or arrearage, or both.
24 (7) Any public office and Clerk of the Circuit Court
25 which collects, disburses or receives payments pursuant to
26 orders for withholding shall maintain complete, accurate, and
27 clear records of all payments and their disbursements.
28 Certified copies of payment records maintained by a public
29 office or Clerk of the Circuit Court shall, without further
30 proof, be admitted into evidence in any legal proceedings
31 under this Section.
32 (8) The Illinois Department of Public Aid shall design
33 suggested legal forms for proceeding under this Section and
34 shall make available to the courts such forms and
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1 informational materials which describe the procedures and
2 remedies set forth herein for distribution to all parties in
3 support actions.
4 (9) At the time of transmitting each support payment,
5 the clerk of the circuit court shall provide the obligee or
6 public office, as appropriate, with any information furnished
7 by the payor as to the date income was paid from which such
8 support was withheld.
9 (J) Penalties.
10 (1) Where a payor wilfully fails to withhold or pay over
11 income pursuant to a properly served, specially certified
12 order for withholding and any notice of delinquency, or
13 wilfully discharges, disciplines, refuses to hire or
14 otherwise penalizes an obligor as prohibited by subsection
15 (G), or otherwise fails to comply with any duties imposed by
16 this Section, the obligee, public office or obligor, as
17 appropriate, may file a complaint with the court against the
18 payor. The clerk of the circuit court shall notify the
19 obligee or public office, as appropriate, and the obligor and
20 payor of the time and place of the hearing on the complaint.
21 The court shall resolve any factual dispute including, but
22 not limited to, a denial that the payor is paying or has paid
23 income to the obligor. Upon a finding in favor of the
24 complaining party, the court:
25 (a) Shall enter judgment and direct the enforcement
26 thereof for the total amount that the payor wilfully
27 failed to withhold or pay over; and
28 (b) May order employment or reinstatement of or
29 restitution to the obligor, or both, where the obligor
30 has been discharged, disciplined, denied employment or
31 otherwise penalized by the payor and may impose a fine
32 upon the payor not to exceed $200.
33 (2) Any obligee, public office or obligor who wilfully
34 initiates a false proceeding under this Section or who
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1 wilfully fails to comply with the requirements of this
2 Section shall be punished as in cases of contempt of court.
3 (K) Alternative Procedures for Entry and Service of an Order
4 for Withholding.
5 (1) Effective January 1, 1987, in any matter in which an
6 order for withholding has not been entered for any reason,
7 based upon the last order for support that has been entered,
8 and in which the obligor has become delinquent in payment of
9 an amount equal to at least one month's support obligation
10 pursuant to the last order for support or is at least 30 days
11 late in complying with all or part of the order for support,
12 the obligee or public office may prepare and serve an order
13 for withholding pursuant to the procedures set forth in this
14 subsection.
15 (2) The obligee or public office shall:
16 (a) Prepare a proposed order for withholding for
17 immediate service as provided by paragraphs (1) and (3)
18 of subsection (B), except that the minimum 20%
19 delinquency payment shall be used;
20 (b) Prepare a notice of delinquency as provided by
21 paragraphs (1) and (2) of subsection (C), except the
22 notice shall state further that the order for withholding
23 has not been entered by the court and the conditions
24 under which the order will be entered; and
25 (c) Serve the notice of delinquency and form
26 petition to stay service as provided by paragraph (3) of
27 subsection (C), together with the proposed order for
28 withholding, which shall be marked "COPY ONLY".
29 (3) After 20 days following service of the notice of
30 delinquency and proposed order for withholding, in lieu of
31 the provisions of subsection (E), the obligee or public
32 office shall file with the Clerk of the Circuit Court an
33 affidavit, with a copy of the notice of delinquency and
34 proposed order for withholding attached thereto, stating
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1 that:
2 (a) The notice of delinquency and proposed order
3 for withholding have been served upon the obligor and the
4 date on which service was effected;
5 (b) The obligor has not filed a petition to stay
6 service within 20 days of service of such notice and
7 order; and
8 (c) The proposed order for withholding accurately
9 states the terms and amounts contained in the last order
10 for support.
11 (4) Upon the court's satisfaction that the procedures
12 set forth in this subsection have been met, it shall enter
13 the order for withholding.
14 (5) The Clerk shall then provide to the obligee or
15 public office a specially certified copy of the order for
16 withholding and the notice of delinquency indicating that the
17 preconditions for service have been met.
18 (6) The obligee or public office shall serve the
19 specially certified copies of the order for withholding and
20 the notice of delinquency on the payor, its superintendent,
21 manager or other agent by certified mail or personal
22 delivery. A proof of service shall be filed with the Clerk
23 of the Circuit Court.
24 (7) If the obligor requests in writing that income
25 withholding become effective prior to becoming delinquent in
26 payment of an amount equal to one month's support obligation
27 pursuant to the last order for support, or prior to becoming
28 30 days late in paying all or part of the order for support,
29 the obligee or public office shall file an affidavit with the
30 Clerk of the circuit Court, with a proposed order for
31 withholding attached, stating that the proposed order
32 accurately states the terms and amounts contained in the last
33 order for support and the obligor's request for immediate
34 service. The provisions of paragraphs (4) through (6) of
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1 this subsection shall apply, except that a notice of
2 delinquency shall not be required.
3 (8) All other provisions of this Section shall be
4 applicable with respect to the provisions of this subsection
5 (K), except that under paragraph (1) of subsection (H), the
6 court may also amend the proposed order for withholding to
7 conform to the last order for support.
8 (9) Nothing in this subsection shall be construed as
9 limiting the requirements of paragraph (1) of subsection (B)
10 with respect to the entry of a separate order for withholding
11 upon entry of any order for support.
12 (L) Remedies in Addition to Other Laws.
13 (1) The rights, remedies, duties and penalties created
14 by this Section are in addition to and not in substitution
15 for any other rights, remedies, duties and penalties created
16 by any other law.
17 (2) Nothing in this Section shall be construed as
18 invalidating any assignment of wages or benefits executed
19 prior to January 1, 1984.
20 (Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
21 eff. 12-2-94; 89-507, eff. 7-1-97.)
22 Section 91. The Illinois Marriage and Dissolution of
23 Marriage Act is amended by changing Section 706.1 as follows:
24 (750 ILCS 5/706.1) (from Ch. 40, par. 706.1)
25 (Text of Section before amendment by P.A. 89-507)
26 Sec. 706.1. Withholding of Income to Secure Payment of
27 Support.
28 (A) Definitions.
29 (1) "Order for support" means any order of the court
30 which provides for periodic payment of funds for the support
31 of a child or maintenance of a spouse, whether temporary or
32 final, and includes any such order which provides for:
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1 (a) Modification or resumption of, or payment of
2 arrearage accrued under, a previously existing order;
3 (b) Reimbursement of support; or
4 (c) Enrollment in a health insurance plan that is
5 available to the obligor through an employer or labor
6 union or trade union.
7 (2) "Arrearage" means the total amount of unpaid support
8 obligations.
9 (3) "Delinquency" means any payment under an order for
10 support which becomes due and remains unpaid after an order
11 for withholding has been entered under subsection (B) or, for
12 purposes of subsection (K), after the last order for support
13 was entered for which no order for withholding was entered.
14 (4) "Income" means any form of periodic payment to an
15 individual, regardless of source, including, but not limited
16 to: wages, salary, commission, compensation as an independent
17 contractor, workers' compensation, disability, annuity and
18 retirement benefits, lottery prize awards, insurance
19 proceeds, vacation pay, bonuses, profit-sharing payments and
20 any other payments, made by any person, private entity,
21 federal or state government, any unit of local government,
22 school district or any entity created by Public Act; however,
23 "income" excludes:
24 (a) Any amounts required by law to be withheld,
25 other than creditor claims, including, but not limited
26 to, federal, State and local taxes, Social Security and
27 other retirement and disability contributions;
28 (b) Union dues;
29 (c) Any amounts exempted by the federal Consumer
30 Credit Protection Act;
31 (d) Public assistance payments; and
32 (e) Unemployment insurance benefits except as
33 provided by law.
34 Any other State or local laws which limit or exempt
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1 income or the amount or percentage of income that can be
2 withheld shall not apply.
3 (5) "Obligor" means the individual who owes a duty to
4 make payments under an order for support.
5 (6) "Obligee" means the individual to whom a duty of
6 support is owed or the individual's legal representative.
7 (7) "Payor" means any payor of income to an obligor.
8 (8) "Public office" means any elected official or any
9 State or local agency which is or may become responsible by
10 law for enforcement of, or which is or may become authorized
11 to enforce, an order for support, including, but not limited
12 to: the Attorney General, the Illinois Department of Public
13 Aid, the Illinois Department of Mental Health and
14 Developmental Disabilities, the Illinois Department of
15 Children and Family Services, and the various State's
16 Attorneys, Clerks of the Circuit Court and supervisors of
17 general assistance.
18 (9) "Premium" means the dollar amount for which the
19 obligor is liable to his employer or labor union or trade
20 union and which must be paid to enroll or maintain a child in
21 a health insurance plan that is available to the obligor
22 through an employer or labor union or trade union.
23 (B) Entry of an Order for Withholding.
24 (1) Upon entry of any order for support on or after
25 January 1, 1984, the court shall enter a separate order for
26 withholding which shall not take effect unless the obligor
27 becomes delinquent in paying the order for support or the
28 obligor requests an earlier effective date; except that the
29 court may require the order for withholding to take effect
30 immediately.
31 On or after January 1, 1989, the court shall require the
32 order for withholding to take effect immediately, unless a
33 written agreement is reached between and signed by both
34 parties providing for an alternative arrangement, approved
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1 and entered into the record by the court, which insures
2 payment of support. In that case, the court shall enter the
3 order for withholding which will not take effect unless the
4 obligor becomes delinquent in paying the order for support.
5 Upon entry of any order of support on or after September
6 11, 1989, if the obligor is not a United States citizen, the
7 obligor shall provide to the court the obligor's alien
8 registration number, passport number, and home country's
9 social security or national health number, if applicable; the
10 court shall make the information part of the record in the
11 case.
12 (2) An order for withholding shall be entered upon
13 petition by the obligee or public office where an order for
14 withholding has not been previously entered.
15 (3) The order for withholding shall:
16 (a) Direct any payor to withhold a dollar amount
17 equal to the order for support; and
18 (b) Direct any payor to withhold an additional
19 dollar amount, not less than 20% of the order for
20 support, until payment in full of any delinquency stated
21 in the notice of delinquency provided for in subsection
22 (C) or (F) of this Section; and
23 (c) Direct any payor or labor union or trade union
24 to enroll a child as a beneficiary of a health insurance
25 plan and withhold or cause to be withheld, if
26 applicable, any required premiums; and
27 (d) State the rights, remedies and duties of the
28 obligor under this Section; and
29 (e) Include the obligor's Social Security Number,
30 which the obligor shall disclose to the court; and
31 (f) Include the date that withholding for current
32 support terminates, which shall be the date of
33 termination of the current support obligation set forth
34 in the order for support.
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1 (4) At the time the order for withholding is entered,
2 the Clerk of the Circuit Court shall provide a copy of the
3 order for withholding and the order for support to the
4 obligor and shall make copies available to the obligee and
5 public office. Any copy of the order for withholding
6 furnished to the parties under this subsection shall be
7 stamped "Not Valid".
8 (5) The order for withholding shall remain in effect for
9 as long as the order for support upon which it is based.
10 (6) The failure of an order for withholding to state an
11 arrearage is not conclusive of the issue of whether an
12 arrearage is owing.
13 (7) Notwithstanding the provisions of this subsection,
14 if the court finds at the time of any hearing that an
15 arrearage has accrued in an amount equal to at least one
16 month's support obligation or that the obligor is 30 days
17 late in paying all or part of the order for support, the
18 court shall order immediate service of the order for
19 withholding upon the payor.
20 (8) Where the court has not required that the order for
21 withholding take effect immediately, the obligee or public
22 office may prepare and serve a notice for immediate
23 withholding upon the obligor by ordinary mail addressed to
24 the obligor at his or her last known address. The notice
25 shall state that the following circumstances have occurred:
26 (a) The parties' written agreement providing an
27 alternative arrangement to immediate withholding under
28 paragraph (1) of this subsection no longer provides for
29 timely payment of all support due; or
30 (b) The obligor has not made timely payments in
31 that the obligor has been at least 7 days late in paying
32 all or part of the order for support any of the last 6
33 consecutive dates payments were due prior to the date of
34 the notice for immediate withholding.
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1 The notice for immediate withholding shall clearly state
2 that a specially certified copy of the order for withholding
3 will be sent to the payor, unless the obligor files a
4 petition contesting immediate withholding within 20 days
5 after service of the notice; however, the grounds for the
6 petition shall be limited to a dispute concerning whether the
7 circumstances stated in the notice have occurred or the
8 identity of the obligor. It shall not be grounds for the
9 petition that the obligor has made all payments due by the
10 date of the petition.
11 If the obligor files a petition contesting immediate
12 withholding within the 20-day period required under this
13 paragraph, the Clerk of the Circuit Court shall notify the
14 obligor and the obligee or public office, as appropriate, of
15 the time and place of the hearing on the petition. Upon
16 hearing the petition, the court shall enter an order granting
17 or denying relief. It shall not be grounds for granting the
18 obligor's petition that he or she has made all payments due
19 by the date of hearing. If the court denies the obligor's
20 petition, it shall order immediate service of the order for
21 withholding and direct the clerk to provide a specially
22 certified copy of the order for withholding to the obligee or
23 public office indicating that the requirements for immediate
24 withholding under this paragraph have been met.
25 If the obligor does not file a petition contesting
26 immediate withholding within the 20-day period, the obligee
27 or public office shall file with the Clerk of the Circuit
28 Court an affidavit, with a copy of the notice for immediate
29 withholding attached thereto, stating that the notice was
30 duly served and the date on which service was effected, and
31 that the obligor has not filed a petition contesting
32 immediate withholding. The clerk shall then provide to the
33 obligee or public office a specially certified copy of the
34 order for withholding indicating that the requirements for
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1 immediate withholding under this paragraph have been met.
2 Upon receipt of a specially certified copy of the order
3 for withholding, the obligee or public office may serve the
4 order on the payor, its superintendent, manager or other
5 agent, by certified mail or personal delivery. A proof of
6 service shall be filed with the Clerk of the Circuit Court.
7 (C) Notice of Delinquency.
8 (1) Whenever an obligor becomes delinquent in payment of
9 an amount equal to at least one month's support obligation
10 pursuant to the order for support or is at least 30 days late
11 in complying with all or part of the order for support,
12 whichever occurs first, the obligee or public office may
13 prepare and serve a verified notice of delinquency, together
14 with a form petition to stay service, pursuant to paragraph
15 (3) of this subsection.
16 (2) The notice of delinquency shall recite the terms of
17 the order for support and contain a computation of the period
18 and total amount of the delinquency, as of the date of the
19 notice. The notice shall clearly state that it will be sent
20 to the payor, together with a specially certified copy of the
21 order for withholding, except as provided in subsection (F),
22 unless the obligor files a petition to stay service in
23 accordance with paragraph (1) of subsection (D).
24 (3) The notice of delinquency shall be served by
25 ordinary mail addressed to the obligor at his or her last
26 known address.
27 (4) The obligor may execute a written waiver of the
28 provisions of paragraphs (1) through (3) of this subsection
29 and request immediate service upon the payor.
30 (D) Procedures to Avoid Income Withholding.
31 (1) Except as provided in subsection (F), the obligor
32 may prevent an order for withholding from being served by
33 filing a petition to stay service with the Clerk of the
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1 Circuit Court, within 20 days after service of the notice of
2 delinquency; however, the grounds for the petition to stay
3 service shall be limited to:
4 (a) A dispute concerning the amount of current
5 support or the existence or amount of the delinquency;
6 (b) The identity of the obligor.
7 The Clerk of the Circuit Court shall notify the obligor
8 and the obligee or public office, as appropriate, of the time
9 and place of the hearing on the petition to stay service. The
10 court shall hold such hearing pursuant to the provisions of
11 subsection (H).
12 (2) Except as provided in subsection (F), filing of a
13 petition to stay service, within the 20-day period required
14 under this subsection, shall prohibit the obligee or public
15 office from serving the order for withholding on any payor of
16 the obligor.
17 (E) Initial Service of Order for Withholding.
18 (1) Except as provided in subsection (F), in order to
19 serve an order for withholding upon a payor, an obligee or
20 public office shall follow the procedures set forth in this
21 subsection. After 20 days following service of the notice of
22 delinquency, the obligee or public office shall file with the
23 Clerk of the Circuit Court an affidavit, with the copy of the
24 notice of delinquency attached thereto, stating:
25 (a) that the notice of delinquency has been duly
26 served and the date on which service was effected; and
27 (b) that the obligor has not filed a petition to
28 stay service, or in the alternative
29 (c) that the obligor has waived the provisions of
30 subparagraphs (a) and (b) of this paragraph (1) in
31 accordance with subsection (C)(4).
32 (2) Upon request of the obligee or public office, the
33 Clerk of the Circuit Court shall: (a) make available any
34 record of payment; and (b) determine that the file contains a
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1 copy of the affidavit described in paragraph (1). The Clerk
2 shall then provide to the obligee or public office a
3 specially certified copy of the order for withholding and the
4 notice of delinquency indicating that the preconditions for
5 service have been met.
6 (3) The obligee or public office may then serve the
7 notice of delinquency and order for withholding on the payor,
8 its superintendent, manager or other agent, by regular or
9 certified mail or facsimile personal delivery. A proof of
10 service shall be filed with the Clerk of the Circuit Court.
11 (F) Subsequent Service of Order for Withholding.
12 (1) Notwithstanding the provisions of this Section, at
13 any time after the court has ordered immediate service of an
14 order for withholding or after initial service of an order
15 for withholding pursuant to subsection (E), the obligee or
16 public office may serve the order for withholding upon any
17 payor of the obligor without further notice to the obligor.
18 The obligee or public office shall provide notice to the
19 payor, pursuant to paragraph (6) of subsection (I), of any
20 payments that have been made through previous withholding or
21 any other method.
22 (2) The Clerk of the Circuit Court shall, upon request,
23 provide the obligee or public office with specially certified
24 copies of the order for withholding or the notice of
25 delinquency or both whenever the Court has ordered immediate
26 service of an order for withholding or an affidavit has been
27 placed in the court file indicating that the preconditions
28 for service have been previously met. The obligee or public
29 office may then serve the order for withholding on the payor,
30 its superintendent, manager or other agent by regular or
31 certified mail or facsimile personal delivery. A proof of
32 service shall be filed with the Clerk of the Circuit Court.
33 (3) If a delinquency has accrued for any reason, the
34 obligee or public office may serve a notice of delinquency
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1 upon the obligor pursuant to subsection (C). The obligor may
2 prevent the notice of delinquency from being served upon the
3 payor by utilizing the procedures set forth in subsection
4 (D). If no petition to stay service has been filed within the
5 required 20 day time period, the obligee or public office may
6 serve the notice of delinquency on the payor by utilizing the
7 procedures for service set forth in subsection (E).
8 (4) New service of an order for withholding is not
9 required in order to resume withholding of income in the case
10 of an obligor with respect to whom an order for withholding
11 was previously served on the payor if withholding of income
12 was terminated because of an interruption in the obligor's
13 employment of less than 180 days.
14 (G) Duties of Payor.
15 (1) It shall be the duty of any payor who has been
16 served with a copy of the specially certified order for
17 withholding and any notice of delinquency to deduct and pay
18 over income as provided in this subsection. The payor shall
19 deduct the amount designated in the order for withholding, as
20 supplemented by the notice of delinquency and any notice
21 provided pursuant to paragraph (6) of subsection (I),
22 beginning no later than the next payment of income which is
23 payable to the obligor that occurs 14 days following the date
24 the order and any notice were mailed by certified mail or
25 placed for personal delivery. The payor may combine all
26 amounts withheld for the benefit of an obligee or public
27 office into a single payment and transmit the payment with a
28 listing of obligors from whom withholding has been effected.
29 The payor shall pay the amount withheld to the obligee or
30 public office within 10 calendar days of the date income is
31 paid to the obligor in accordance with the order for
32 withholding and any subsequent notification received from the
33 public office redirecting payments. If the payor knowingly
34 fails to pay any amount withheld to the obligee or public
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1 office within 10 calendar days of the date income is paid to
2 the obligor, the payor shall pay a penalty of $100 for each
3 day that the withheld amount is not paid to the obligee or
4 public office after the period of 10 calendar days has
5 expired. The failure of a payor, on more than one occasion,
6 to pay amounts withheld to the obligee or public office
7 within 10 calendar days of the date income is not paid to the
8 obligor creates a presumption that the payor knowingly failed
9 to pay the amounts. This penalty may be collected in a civil
10 action which may be brought against the payor in favor of the
11 obligee. A finding of a payor's nonperformance within the
12 time required under this Section must be documented by a
13 certified mail return receipt showing the date the order for
14 withholding was served on the payor. For purposes of this
15 Section, a withheld amount shall be considered paid by a
16 payor on the date it is mailed by the payor, or on the date
17 an electronic funds transfer of the amount has been initiated
18 by the payor, or on the date delivery of the amount has been
19 initiated by the payor. For each deduction, the payor shall
20 provide the obligee or public office, at the time of
21 transmittal, with the date income was paid from which support
22 was withheld.
23 Upon receipt of an order requiring that a minor child be
24 named as a beneficiary of a health insurance plan available
25 through an employer or labor union or trade union, the
26 employer or labor union or trade union shall immediately
27 enroll the minor child as a beneficiary in the health
28 insurance plan designated by the court order. The employer
29 shall withhold any required premiums and pay over any amounts
30 so withheld and any additional amounts the employer pays to
31 the insurance carrier in a timely manner. The employer or
32 labor union or trade union shall mail to the obligee, within
33 15 days of enrollment or upon request, notice of the date of
34 coverage, information on the dependent coverage plan, and all
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1 forms necessary to obtain reimbursement for covered health
2 expenses, such as would be made available to a new employee.
3 When an order for dependent coverage is in effect and the
4 insurance coverage is terminated or changed for any reason,
5 the employer or labor union or trade union shall notify the
6 obligee within 10 days of the termination or change date
7 along with notice of conversion privileges.
8 For withholding of income, the payor shall be entitled to
9 receive a fee not to exceed $5 per month to be taken from the
10 income to be paid to the obligor.
11 (2) Whenever the obligor is no longer receiving income
12 from the payor, the payor shall return a copy of the order
13 for withholding to the obligee or public office and shall
14 provide information for the purpose of enforcing this
15 Section.
16 (3) Withholding of income under this Section shall be
17 made without regard to any prior or subsequent garnishments,
18 attachments, wage assignments, or any other claims of
19 creditors. Withholding of income under this Section shall
20 not be in excess of the maximum amounts permitted under the
21 federal Consumer Credit Protection Act. If the payor has been
22 served with more than one order for withholding pertaining to
23 the same obligor, the payor shall allocate income available
24 for withholding on a proportionate share basis, giving
25 priority to current support payments. If there is any income
26 available for withholding after withholding for all current
27 support obligations, the payor shall allocate the income to
28 past due support payments ordered in non-AFDC matters and
29 then to past due support payments ordered in AFDC matters,
30 both on a proportionate share basis. Payment as required by
31 the order for withholding shall be a complete defense by the
32 payor against any claims of the obligor or his creditors as
33 to the sum so paid.
34 (4) No payor shall discharge, discipline, refuse to hire
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1 or otherwise penalize any obligor because of the duty to
2 withhold income.
3 (H) Petitions to Stay Service or to Modify, Suspend or
4 Terminate Orders for Withholding.
5 (1) When an obligor files a petition to stay service,
6 the court, after due notice to all parties, shall hear the
7 matter as soon as practicable and shall enter an order
8 granting or denying relief, amending the notice of
9 delinquency, amending the order for withholding, where
10 applicable, or otherwise resolving the matter. If the court
11 finds that a delinquency existed when the notice of
12 delinquency was served upon the obligor, in an amount of at
13 least one month's support obligation, or that the obligor was
14 at least 30 days late in paying all or part of the order for
15 support, the court shall order immediate service of the order
16 for withholding. Where the court cannot promptly resolve any
17 dispute over the amount of the delinquency, the court may
18 order immediate service of the order for withholding as to
19 any undisputed amounts specified in an amended notice of
20 delinquency, and may continue the hearing on the disputed
21 amounts.
22 (2) At any time, an obligor, obligee, public office or
23 Clerk of the Circuit Court may petition the court to:
24 (a) Modify, suspend or terminate the order for
25 withholding because of a modification, suspension or
26 termination of the underlying order for support; or
27 (b) Modify the amount of income to be withheld to
28 reflect payment in full or in part of the delinquency or
29 arrearage by income withholding or otherwise; or
30 (c) Suspend the order for withholding because of
31 inability to deliver income withheld to the obligee due
32 to the obligee's failure to provide a mailing address or
33 other means of delivery.
34 (3) The obligor, obligee or public office shall serve on
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1 the payor, by certified mail or personal delivery, a copy of
2 any order entered pursuant to this subsection that affects
3 the duties of the payor.
4 (4) At any time, a public office or Clerk of the Circuit
5 Court may serve a notice on the payor to:
6 (a) cease withholding of income for payment of
7 current support for a child when the support obligation
8 for that child has automatically ceased under the order
9 for support through emancipation or otherwise; or
10 (b) cease withholding of income for payment of
11 delinquency or arrearage when the delinquency or
12 arrearage has been paid in full.
13 (5) The notice provided for under paragraph (4) of this
14 subsection shall be served on the payor by ordinary mail, and
15 a copy shall be provided to the obligor and the obligee. A
16 copy of the notice shall be filed with the Clerk of the
17 Circuit Court.
18 (6) The order for withholding shall continue to be
19 binding upon the payor until service of any order of the
20 court or notice entered or provided for under this
21 subsection.
22 (I) Additional Duties.
23 (1) An obligee who is receiving income withholding
24 payments under this Section shall notify the payor, if the
25 obligee receives the payments directly from the payor, or the
26 public office or the Clerk of the Circuit Court, as
27 appropriate, of any change of address within 7 days of such
28 change.
29 (2) An obligee who is a recipient of public aid shall
30 send a copy of any notice of delinquency filed pursuant to
31 subsection (C) to the Bureau of Child Support of the Illinois
32 Department of Public Aid.
33 (3) Each obligor shall notify the obligee and the Clerk
34 of the Circuit Court of any change of address within 7 days.
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1 (4) An obligor whose income is being withheld or who has
2 been served with a notice of delinquency pursuant to this
3 Section shall notify the obligee and the Clerk of the Circuit
4 Court of any new payor, within 7 days.
5 (5) When the Illinois Department of Public Aid is no
6 longer authorized to receive payments for the obligee, it
7 shall, within 7 days, notify the payor or, where appropriate,
8 the Clerk of the Circuit Court, to redirect income
9 withholding payments to the obligee.
10 (6) The obligee or public office shall provide notice to
11 the payor and Clerk of the Circuit Court of any other support
12 payment made, including but not limited to, a set-off under
13 federal and State law or partial payment of the delinquency
14 or arrearage, or both.
15 (7) Any public office and Clerk of the Circuit Court
16 which collects, disburses or receives payments pursuant to
17 orders for withholding shall maintain complete, accurate, and
18 clear records of all payments and their disbursements.
19 Certified copies of payment records maintained by a public
20 office or Clerk of the Circuit Court shall, without further
21 proof, be admitted into evidence in any legal proceedings
22 under this Section.
23 (8) The Illinois Department of Public Aid shall design
24 suggested legal forms for proceeding under this Section and
25 shall make available to the courts such forms and
26 informational materials which describe the procedures and
27 remedies set forth herein for distribution to all parties in
28 support actions.
29 (9) At the time of transmitting each support payment,
30 the clerk of the circuit court shall provide the obligee or
31 public office, as appropriate, with any information furnished
32 by the payor as to the date income was paid from which such
33 support was withheld.
34 (J) Penalties.
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1 (1) Where a payor wilfully fails to withhold or pay over
2 income pursuant to a properly served, specially certified
3 order for withholding and any notice of delinquency, or
4 wilfully discharges, disciplines, refuses to hire or
5 otherwise penalizes an obligor as prohibited by subsection
6 (G), or otherwise fails to comply with any duties imposed by
7 this Section, the obligee, public office or obligor, as
8 appropriate, may file a complaint with the court against the
9 payor. The clerk of the circuit court shall notify the
10 obligee or public office, as appropriate, and the obligor and
11 payor of the time and place of the hearing on the complaint.
12 The court shall resolve any factual dispute including, but
13 not limited to, a denial that the payor is paying or has paid
14 income to the obligor. Upon a finding in favor of the
15 complaining party, the court:
16 (a) Shall enter judgment and direct the enforcement
17 thereof for the total amount that the payor wilfully
18 failed to withhold or pay over; and
19 (b) May order employment or reinstatement of or
20 restitution to the obligor, or both, where the obligor
21 has been discharged, disciplined, denied employment or
22 otherwise penalized by the payor and may impose a fine
23 upon the payor not to exceed $200.
24 (2) Any obligee, public office or obligor who wilfully
25 initiates a false proceeding under this Section or who
26 wilfully fails to comply with the requirements of this
27 Section shall be punished as in cases of contempt of court.
28 (K) Alternative Procedures for Entry and Service of an Order
29 for Withholding.
30 (1) Effective January 1, 1987, in any matter in which an
31 order for withholding has not been entered for any reason,
32 based upon the last order for support that has been entered,
33 and in which the obligor has become delinquent in payment of
34 an amount equal to at least one month's support obligation
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1 pursuant to the last order for support or is at least 30 days
2 late in complying with all or part of the order for support,
3 the obligee or public office may prepare and serve an order
4 for withholding pursuant to the procedures set forth in this
5 subsection.
6 (2) The obligee or public office shall:
7 (a) Prepare a proposed order for withholding for
8 immediate service as provided by paragraphs (1) and (3)
9 of subsection (B), except that the minimum 20%
10 delinquency payment shall be used;
11 (b) Prepare a notice of delinquency as provided by
12 paragraphs (1) and (2) of subsection (C), except the
13 notice shall state further that the order for withholding
14 has not been entered by the court and the conditions
15 under which the order will be entered; and
16 (c) Serve the notice of delinquency and form
17 petition to stay service as provided by paragraph (3) of
18 subsection (C), together with the proposed order for
19 withholding, which shall be marked "COPY ONLY".
20 (3) After 20 days following service of the notice of
21 delinquency and proposed order for withholding, in lieu of
22 the provisions of subsection (E), the obligee or public
23 office shall file with the Clerk of the Circuit Court an
24 affidavit, with a copy of the notice of delinquency and
25 proposed order for withholding attached thereto, stating
26 that:
27 (a) The notice of delinquency and proposed order
28 for withholding have been served upon the obligor and the
29 date on which service was effected;
30 (b) The obligor has not filed a petition to stay
31 service within 20 days of service of such notice and
32 order; and
33 (c) The proposed order for withholding accurately
34 states the terms and amounts contained in the last order
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1 for support.
2 (4) Upon the court's satisfaction that the procedures
3 set forth in this subsection have been met, it shall enter
4 the order for withholding.
5 (5) The Clerk shall then provide to the obligee or
6 public office a specially certified copy of the order for
7 withholding and the notice of delinquency indicating that the
8 preconditions for service have been met.
9 (6) The obligee or public office shall serve the
10 specially certified copies of the order for withholding and
11 the notice of delinquency on the payor, its superintendent,
12 manager or other agent by certified mail or personal
13 delivery. A proof of service shall be filed with the Clerk
14 of the Circuit Court.
15 (7) If the obligor requests in writing that income
16 withholding become effective prior to becoming delinquent in
17 payment of an amount equal to one month's support obligation
18 pursuant to the last order for support, or prior to becoming
19 30 days late in paying all or part of the order for support,
20 the obligee or public office shall file an affidavit with the
21 Clerk of the circuit Court, with a proposed order for
22 withholding attached, stating that the proposed order
23 accurately states the terms and amounts contained in the last
24 order for support and the obligor's request for immediate
25 service. The provisions of paragraphs (4) through (6) of
26 this subsection shall apply, except that a notice of
27 delinquency shall not be required.
28 (8) All other provisions of this Section shall be
29 applicable with respect to the provisions of this subsection
30 (K), except that under paragraph (1) of subsection (H), the
31 court may also amend the proposed order for withholding to
32 conform to the last order for support.
33 (9) Nothing in this subsection shall be construed as
34 limiting the requirements of paragraph (1) of subsection (B)
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1 with respect to the entry of a separate order for withholding
2 upon entry of any order for support.
3 (L) Remedies in Addition to Other Laws.
4 (1) The rights, remedies, duties and penalties created
5 by this Section are in addition to and not in substitution
6 for any other rights, remedies, duties and penalties created
7 by any other law.
8 (2) Nothing in this Section shall be construed as
9 invalidating any assignment of wages or benefits executed
10 prior to January 1, 1984.
11 (Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
12 88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
13 (Text of Section after amendment by P.A.89-507)
14 Sec. 706.1. Withholding of Income to Secure Payment of
15 Support.
16 (A) Definitions.
17 (1) "Order for support" means any order of the court
18 which provides for periodic payment of funds for the support
19 of a child or maintenance of a spouse, whether temporary or
20 final, and includes any such order which provides for:
21 (a) Modification or resumption of, or payment of
22 arrearage accrued under, a previously existing order;
23 (b) Reimbursement of support; or
24 (c) Enrollment in a health insurance plan that is
25 available to the obligor through an employer or labor
26 union or trade union.
27 (2) "Arrearage" means the total amount of unpaid support
28 obligations.
29 (3) "Delinquency" means any payment under an order for
30 support which becomes due and remains unpaid after an order
31 for withholding has been entered under subsection (B) or, for
32 purposes of subsection (K), after the last order for support
33 was entered for which no order for withholding was entered.
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1 (4) "Income" means any form of periodic payment to an
2 individual, regardless of source, including, but not limited
3 to: wages, salary, commission, compensation as an independent
4 contractor, workers' compensation, disability, annuity and
5 retirement benefits, lottery prize awards, insurance
6 proceeds, vacation pay, bonuses, profit-sharing payments and
7 any other payments, made by any person, private entity,
8 federal or state government, any unit of local government,
9 school district or any entity created by Public Act; however,
10 "income" excludes:
11 (a) Any amounts required by law to be withheld,
12 other than creditor claims, including, but not limited
13 to, federal, State and local taxes, Social Security and
14 other retirement and disability contributions;
15 (b) Union dues;
16 (c) Any amounts exempted by the federal Consumer
17 Credit Protection Act;
18 (d) Public assistance payments; and
19 (e) Unemployment insurance benefits except as
20 provided by law.
21 Any other State or local laws which limit or exempt
22 income or the amount or percentage of income that can be
23 withheld shall not apply.
24 (5) "Obligor" means the individual who owes a duty to
25 make payments under an order for support.
26 (6) "Obligee" means the individual to whom a duty of
27 support is owed or the individual's legal representative.
28 (7) "Payor" means any payor of income to an obligor.
29 (8) "Public office" means any elected official or any
30 State or local agency which is or may become responsible by
31 law for enforcement of, or which is or may become authorized
32 to enforce, an order for support, including, but not limited
33 to: the Attorney General, the Illinois Department of Public
34 Aid, the Illinois Department of Human Services, the Illinois
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1 Department of Children and Family Services, and the various
2 State's Attorneys, Clerks of the Circuit Court and
3 supervisors of general assistance.
4 (9) "Premium" means the dollar amount for which the
5 obligor is liable to his employer or labor union or trade
6 union and which must be paid to enroll or maintain a child in
7 a health insurance plan that is available to the obligor
8 through an employer or labor union or trade union.
9 (B) Entry of an Order for Withholding.
10 (1) Upon entry of any order for support on or after
11 January 1, 1984, the court shall enter a separate order for
12 withholding which shall not take effect unless the obligor
13 becomes delinquent in paying the order for support or the
14 obligor requests an earlier effective date; except that the
15 court may require the order for withholding to take effect
16 immediately.
17 On or after January 1, 1989, the court shall require the
18 order for withholding to take effect immediately, unless a
19 written agreement is reached between and signed by both
20 parties providing for an alternative arrangement, approved
21 and entered into the record by the court, which insures
22 payment of support. In that case, the court shall enter the
23 order for withholding which will not take effect unless the
24 obligor becomes delinquent in paying the order for support.
25 Upon entry of any order of support on or after September
26 11, 1989, if the obligor is not a United States citizen, the
27 obligor shall provide to the court the obligor's alien
28 registration number, passport number, and home country's
29 social security or national health number, if applicable; the
30 court shall make the information part of the record in the
31 case.
32 (2) An order for withholding shall be entered upon
33 petition by the obligee or public office where an order for
34 withholding has not been previously entered.
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1 (3) The order for withholding shall:
2 (a) Direct any payor to withhold a dollar amount
3 equal to the order for support; and
4 (b) Direct any payor to withhold an additional
5 dollar amount, not less than 20% of the order for
6 support, until payment in full of any delinquency stated
7 in the notice of delinquency provided for in subsection
8 (C) or (F) of this Section; and
9 (c) Direct any payor or labor union or trade union
10 to enroll a child as a beneficiary of a health insurance
11 plan and withhold or cause to be withheld, if
12 applicable, any required premiums; and
13 (d) State the rights, remedies and duties of the
14 obligor under this Section; and
15 (e) Include the obligor's Social Security Number,
16 which the obligor shall disclose to the court; and
17 (f) Include the date that withholding for current
18 support terminates, which shall be the date of
19 termination of the current support obligation set forth
20 in the order for support.
21 (4) At the time the order for withholding is entered,
22 the Clerk of the Circuit Court shall provide a copy of the
23 order for withholding and the order fo