Illinois General Assembly - Full Text of Public Act 097-0878
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Public Act 097-0878


 

Public Act 0878 97TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 097-0878
 
HB3960 EnrolledLRB097 14635 AJO 59517 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 505 as follows:
 
    (750 ILCS 5/505)  (from Ch. 40, par. 505)
    Sec. 505. Child support; contempt; penalties.
    (a) In a proceeding for dissolution of marriage, legal
separation, declaration of invalidity of marriage, a
proceeding for child support following dissolution of the
marriage by a court which lacked personal jurisdiction over the
absent spouse, a proceeding for modification of a previous
order for child support under Section 510 of this Act, or any
proceeding authorized under Section 501 or 601 of this Act, the
court may order either or both parents owing a duty of support
to a child of the marriage to pay an amount reasonable and
necessary for his support, without regard to marital
misconduct. The duty of support owed to a child includes the
obligation to provide for the reasonable and necessary
physical, mental and emotional health needs of the child. For
purposes of this Section, the term "child" shall include any
child under age 18 and any child under age 19 who is still
attending high school.
        (1) The Court shall determine the minimum amount of
    support by using the following guidelines:
Number of ChildrenPercent of Supporting Party's
Net Income
120%
228%
332%
440%
545%
6 or more50%
        (2) The above guidelines shall be applied in each case
    unless the court makes a finding that application of the
    guidelines would be inappropriate, after considering the
    best interests of the child in light of evidence including
    but not limited to one or more of the following relevant
    factors:
            (a) the financial resources and needs of the child;
            (b) the financial resources and needs of the
        custodial parent;
            (c) the standard of living the child would have
        enjoyed had the marriage not been dissolved;
            (d) the physical and emotional condition of the
        child, and his educational needs; and
            (e) the financial resources and needs of the
        non-custodial parent.
        If the court deviates from the guidelines, the court's
    finding shall state the amount of support that would have
    been required under the guidelines, if determinable. The
    court shall include the reason or reasons for the variance
    from the guidelines.
        (3) "Net income" is defined as the total of all income
    from all sources, minus the following deductions:
            (a) Federal income tax (properly calculated
        withholding or estimated payments);
            (b) State income tax (properly calculated
        withholding or estimated payments);
            (c) Social Security (FICA payments);
            (d) Mandatory retirement contributions required by
        law or as a condition of employment;
            (e) Union dues;
            (f) Dependent and individual
        health/hospitalization insurance premiums and life
        insurance premiums for life insurance ordered by the
        court to reasonably secure payment of ordered child
        support or support ordered pursuant to Section 513, any
        such order to entail provisions on which the parties
        agree or, otherwise, in accordance with the
        limitations set forth in subsection 504(f)(1) and (2);
            (g) Prior obligations of support or maintenance
        actually paid pursuant to a court order;
            (h) Expenditures for repayment of debts that
        represent reasonable and necessary expenses for the
        production of income, medical expenditures necessary
        to preserve life or health, reasonable expenditures
        for the benefit of the child and the other parent,
        exclusive of gifts. The court shall reduce net income
        in determining the minimum amount of support to be
        ordered only for the period that such payments are due
        and shall enter an order containing provisions for its
        self-executing modification upon termination of such
        payment period;
            (i) Foster care payments paid by the Department of
        Children and Family Services for providing licensed
        foster care to a foster child.
        (4) In cases where the court order provides for
    health/hospitalization insurance coverage pursuant to
    Section 505.2 of this Act, the premiums for that insurance,
    or that portion of the premiums for which the supporting
    party is responsible in the case of insurance provided
    through an employer's health insurance plan where the
    employer pays a portion of the premiums, shall be
    subtracted from net income in determining the minimum
    amount of support to be ordered.
        (4.5) In a proceeding for child support following
    dissolution of the marriage by a court that lacked personal
    jurisdiction over the absent spouse, and in which the court
    is requiring payment of support for the period before the
    date an order for current support is entered, there is a
    rebuttable presumption that the supporting party's net
    income for the prior period was the same as his or her net
    income at the time the order for current support is
    entered.
        (5) If the net income cannot be determined because of
    default or any other reason, the court shall order support
    in an amount considered reasonable in the particular case.
    The final order in all cases shall state the support level
    in dollar amounts. However, if the court finds that the
    child support amount cannot be expressed exclusively as a
    dollar amount because all or a portion of the payor's net
    income is uncertain as to source, time of payment, or
    amount, the court may order a percentage amount of support
    in addition to a specific dollar amount and enter such
    other orders as may be necessary to determine and enforce,
    on a timely basis, the applicable support ordered.
        (6) If (i) the non-custodial parent was properly served
    with a request for discovery of financial information
    relating to the non-custodial parent's ability to provide
    child support, (ii) the non-custodial parent failed to
    comply with the request, despite having been ordered to do
    so by the court, and (iii) the non-custodial parent is not
    present at the hearing to determine support despite having
    received proper notice, then any relevant financial
    information concerning the non-custodial parent's ability
    to provide child support that was obtained pursuant to
    subpoena and proper notice shall be admitted into evidence
    without the need to establish any further foundation for
    its admission.
    (a-5) In an action to enforce an order for support based on
the respondent's failure to make support payments as required
by the order, notice of proceedings to hold the respondent in
contempt for that failure may be served on the respondent by
personal service or by regular mail addressed to the
respondent's last known address. The respondent's last known
address may be determined from records of the clerk of the
court, from the Federal Case Registry of Child Support Orders,
or by any other reasonable means.
    (b) Failure of either parent to comply with an order to pay
support shall be punishable as in other cases of contempt. In
addition to other penalties provided by law the Court may,
after finding the parent guilty of contempt, order that the
parent be:
        (1) placed on probation with such conditions of
    probation as the Court deems advisable;
        (2) sentenced to periodic imprisonment for a period not
    to exceed 6 months; provided, however, that the Court may
    permit the parent to be released for periods of time during
    the day or night to:
            (A) work; or
            (B) conduct a business or other self-employed
        occupation.
    The Court may further order any part or all of the earnings
of a parent during a sentence of periodic imprisonment paid to
the Clerk of the Circuit Court or to the parent having custody
or to the guardian having custody of the children of the
sentenced parent for the support of said children until further
order of the Court.
    If there is a unity of interest and ownership sufficient to
render no financial separation between a non-custodial parent
and another person or persons or business entity, the court may
pierce the ownership veil of the person, persons, or business
entity to discover assets of the non-custodial parent held in
the name of that person, those persons, or that business
entity. The following circumstances are sufficient to
authorize a court to order discovery of the assets of a person,
persons, or business entity and to compel the application of
any discovered assets toward payment on the judgment for
support:
        (1) the non-custodial parent and the person, persons,
    or business entity maintain records together.
        (2) the non-custodial parent and the person, persons,
    or business entity fail to maintain an arms length
    relationship between themselves with regard to any assets.
        (3) the non-custodial parent transfers assets to the
    person, persons, or business entity with the intent to
    perpetrate a fraud on the custodial parent.
    With respect to assets which are real property, no order
entered under this paragraph shall affect the rights of bona
fide purchasers, mortgagees, judgment creditors, or other lien
holders who acquire their interests in the property prior to
the time a notice of lis pendens pursuant to the Code of Civil
Procedure or a copy of the order is placed of record in the
office of the recorder of deeds for the county in which the
real property is located.
    The court may also order in cases where the parent is 90
days or more delinquent in payment of support or has been
adjudicated in arrears in an amount equal to 90 days obligation
or more, that the parent's Illinois driving privileges be
suspended until the court determines that the parent is in
compliance with the order of support. The court may also order
that the parent be issued a family financial responsibility
driving permit that would allow limited driving privileges for
employment and medical purposes in accordance with Section
7-702.1 of the Illinois Vehicle Code. The clerk of the circuit
court shall certify the order suspending the driving privileges
of the parent or granting the issuance of a family financial
responsibility driving permit to the Secretary of State on
forms prescribed by the Secretary. Upon receipt of the
authenticated documents, the Secretary of State shall suspend
the parent's driving privileges until further order of the
court and shall, if ordered by the court, subject to the
provisions of Section 7-702.1 of the Illinois Vehicle Code,
issue a family financial responsibility driving permit to the
parent.
    In addition to the penalties or punishment that may be
imposed under this Section, any person whose conduct
constitutes a violation of Section 15 of the Non-Support
Punishment Act may be prosecuted under that Act, and a person
convicted under that Act may be sentenced in accordance with
that Act. The sentence may include but need not be limited to a
requirement that the person perform community service under
Section 50 of that Act or participate in a work alternative
program under Section 50 of that Act. A person may not be
required to participate in a work alternative program under
Section 50 of that Act if the person is currently participating
in a work program pursuant to Section 505.1 of this Act.
    A support obligation, or any portion of a support
obligation, which becomes due and remains unpaid as of the end
of each month, excluding the child support that was due for
that month to the extent that it was not paid in that month,
shall accrue simple interest as set forth in Section 12-109 of
the Code of Civil Procedure. An order for support entered or
modified on or after January 1, 2006 shall contain a statement
that a support obligation required under the order, or any
portion of a support obligation required under the order, that
becomes due and remains unpaid as of the end of each month,
excluding the child support that was due for that month to the
extent that it was not paid in that month, shall accrue simple
interest as set forth in Section 12-109 of the Code of Civil
Procedure. Failure to include the statement in the order for
support does not affect the validity of the order or the
accrual of interest as provided in this Section.
    (c) A one-time charge of 20% is imposable upon the amount
of past-due child support owed on July 1, 1988 which has
accrued under a support order entered by the court. The charge
shall be imposed in accordance with the provisions of Section
10-21 of the Illinois Public Aid Code and shall be enforced by
the court upon petition.
    (d) Any new or existing support order entered by the court
under this Section shall be deemed to be a series of judgments
against the person obligated to pay support thereunder, each
such judgment to be in the amount of each payment or
installment of support and each such judgment to be deemed
entered as of the date the corresponding payment or installment
becomes due under the terms of the support order. Each such
judgment shall have the full force, effect and attributes of
any other judgment of this State, including the ability to be
enforced. Notwithstanding any other State or local law to the
contrary, a lien arises by operation of law against the real
and personal property of the noncustodial parent for each
installment of overdue support owed by the noncustodial parent.
    (e) When child support is to be paid through the clerk of
the court in a county of 1,000,000 inhabitants or less, the
order shall direct the obligor to pay to the clerk, in addition
to the child support payments, all fees imposed by the county
board under paragraph (3) of subsection (u) of Section 27.1 of
the Clerks of Courts Act. Unless paid in cash or pursuant to an
order for withholding, the payment of the fee shall be by a
separate instrument from the support payment and shall be made
to the order of the Clerk.
    (f) All orders for support, when entered or modified, shall
include a provision requiring the obligor to notify the court
and, in cases in which a party is receiving child and spouse
services under Article X of the Illinois Public Aid Code, the
Department of Healthcare and Family Services, within 7 days,
(i) of the name and address of any new employer of the obligor,
(ii) whether the obligor has access to health insurance
coverage through the employer or other group coverage and, if
so, the policy name and number and the names of persons covered
under the policy, and (iii) of any new residential or mailing
address or telephone number of the non-custodial parent. In any
subsequent action to enforce a support order, upon a sufficient
showing that a diligent effort has been made to ascertain the
location of the non-custodial parent, service of process or
provision of notice necessary in the case may be made at the
last known address of the non-custodial parent in any manner
expressly provided by the Code of Civil Procedure or this Act,
which service shall be sufficient for purposes of due process.
    (g) An order for support shall include a date on which the
current support obligation terminates. The termination date
shall be no earlier than the date on which the child covered by
the order will attain the age of 18. However, if the child will
not graduate from high school until after attaining the age of
18, then the termination date shall be no earlier than the
earlier of the date on which the child's high school graduation
will occur or the date on which the child will attain the age
of 19. The order for support shall state that the termination
date does not apply to any arrearage that may remain unpaid on
that date. Nothing in this subsection shall be construed to
prevent the court from modifying the order or terminating the
order in the event the child is otherwise emancipated.
    (g-5) If there is an unpaid arrearage or delinquency (as
those terms are defined in the Income Withholding for Support
Act) equal to at least one month's support obligation on the
termination date stated in the order for support or, if there
is no termination date stated in the order, on the date the
child attains the age of majority or is otherwise emancipated,
the periodic amount required to be paid for current support of
that child immediately prior to that date shall automatically
continue to be an obligation, not as current support but as
periodic payment toward satisfaction of the unpaid arrearage or
delinquency. That periodic payment shall be in addition to any
periodic payment previously required for satisfaction of the
arrearage or delinquency. The total periodic amount to be paid
toward satisfaction of the arrearage or delinquency may be
enforced and collected by any method provided by law for
enforcement and collection of child support, including but not
limited to income withholding under the Income Withholding for
Support Act. Each order for support entered or modified on or
after the effective date of this amendatory Act of the 93rd
General Assembly must contain a statement notifying the parties
of the requirements of this subsection. Failure to include the
statement in the order for support does not affect the validity
of the order or the operation of the provisions of this
subsection with regard to the order. This subsection shall not
be construed to prevent or affect the establishment or
modification of an order for support of a minor child or the
establishment or modification of an order for support of a
non-minor child or educational expenses under Section 513 of
this Act.
    (h) An order entered under this Section shall include a
provision requiring the obligor to report to the obligee and to
the clerk of court within 10 days each time the obligor obtains
new employment, and each time the obligor's employment is
terminated for any reason. The report shall be in writing and
shall, in the case of new employment, include the name and
address of the new employer. Failure to report new employment
or the termination of current employment, if coupled with
nonpayment of support for a period in excess of 60 days, is
indirect criminal contempt. For any obligor arrested for
failure to report new employment bond shall be set in the
amount of the child support that should have been paid during
the period of unreported employment. An order entered under
this Section shall also include a provision requiring the
obligor and obligee parents to advise each other of a change in
residence within 5 days of the change except when the court
finds that the physical, mental, or emotional health of a party
or that of a child, or both, would be seriously endangered by
disclosure of the party's address.
    (i) The court does not lose the powers of contempt,
driver's license suspension, or other child support
enforcement mechanisms, including, but not limited to,
criminal prosecution as set forth in this Act, upon the
emancipation of the minor child or children.
(Source: P.A. 96-1134, eff. 7-21-10; 97-186, eff. 7-22-11;
97-608, eff. 1-1-12; revised 10-4-11.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 8/2/2012