Public Act 90-0425 of the 90th General Assembly
Public Act 90-0425
SB1024 Enrolled LRB9003396DJcd
AN ACT concerning child support.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
New Hire Reporting Act.
Section 30. Toll-free telephone line; public service
announcements.
(a) The Department of Employment Security shall
establish a toll-free telephone line for new hire reporting,
employer follow-up to correct errors and facilitate
electronic transmission, and an expedited administrative
hearing process to determine reasonable cause in
non-compliance situations.
(b) The Department of Employment Security shall issue
public service announcements and mailings to inform employers
about the new hire reporting requirements and procedures
pursuant to Section 1801.1 of the Unemployment Insurance Act,
including simple instructions on completion of the Form W-4
and information on electronic or magnetic transmission of
data.
Section 35. Department of Public Aid duties. The
Department of Public Aid shall establish a community advisory
committee for oversight of the implementation process,
toll-free telephone lines for employers with child support
questions, an expedited hearing process for non-custodial
parents who contest an employer's execution of an order for
withholding and brochures and public service announcements
that inform the general public about the New Hire Directory
and how to utilize it, within the federal and State
confidentiality laws, in pursuit of child support.
Section 40. Emergency judicial hearing. If the issue of
an employer's reasonable cause for failure to comply with the
reporting requirements pursuant to Section 1801.1 of the
Unemployment Insurance Act is not resolved through the
expedited administrative hearing process authorized under
subsection (a) of Section 30, the employer may file a
petition in the circuit court to seek judicial review of that
issue.
Section 90. The Illinois Public Aid Code is amended by
changing Section 10-16.2 as follows:
(305 ILCS 5/10-16.2) (from Ch. 23, par. 10-16.2)
(Text of Section before amendment by P.A. 89-507)
Sec. 10-16.2. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premium; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met or that the requirements
for immediate withholding under paragraph (8) of subsection B
have been previously met. The obligee or public office may
then serve the order for withholding on the payor, its
superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A. 89-507)
Sec. 10-16.2. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services (as successor
to the Department of Mental Health and Developmental
Disabilities), the Illinois Department of Children and Family
Services, and the various State's Attorneys, Clerks of the
Circuit Court and supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premium; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met or that the requirements
for immediate withholding under paragraph (8) of subsection B
have been previously met. The obligee or public office may
then serve the order for withholding on the payor, its
superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
eff. 12-2-94; 89-507, eff. 7-1-97.)
Section 91. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 706.1 as follows:
(750 ILCS 5/706.1) (from Ch. 40, par. 706.1)
(Text of Section before amendment by P.A. 89-507)
Sec. 706.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premiums; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A.89-507)
Sec. 706.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services, the Illinois
Department of Children and Family Services, and the various
State's Attorneys, Clerks of the Circuit Court and
supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premiums; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of