Public Act 90-0673 of the 90th General Assembly
Public Act 90-0673
HB3048 Enrolled LRB9007060SMfg
AN ACT regarding enforcement of support orders.
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
Income Withholding for Support Act.
Section 5. Purpose; intent. This Act consolidates into a
single new Act the lengthy and nearly identical provisions
relating to income withholding for support that were formerly
contained in Section 10-16.2 of the Illinois Public Aid Code,
Section 706.1 of the Illinois Marriage and Dissolution of
Marriage Act, Section 4.1 of the Non-Support of Spouse and
Children Act, and Section 20 of the Illinois Parentage Act of
1984. It also divides the consolidated provisions into
smaller Sections for ease of use and future amendment and
makes technical corrections. This Act is intended as a
continuation of the consolidated provisions, and the
consolidation is not intended to make any substantive change
in the law nor to affect any order issued under any of the
consolidated provisions.
Section 15. Definitions.
(a) "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:
(1) modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(2) reimbursement of support;
(3) payment or reimbursement of the expenses of
pregnancy and delivery (for orders for support entered
under the Illinois Parentage Act of 1984 or its
predecessor the Paternity Act); or
(4) enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(b) "Arrearage" means the total amount of unpaid support
obligations as determined by the court and incorporated into
an order for support.
(c) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after entry of
the order for support.
(d) "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,
pension, and retirement benefits, lottery prize awards,
insurance proceeds, vacation pay, bonuses, profit-sharing
payments, interest, 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:
(1) 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;
(2) union dues;
(3) any amounts exempted by the federal Consumer
Credit Protection Act;
(4) public assistance payments; and
(5) 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.
(e) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(f) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(g) "Payor" means any payor of income to an obligor.
(h) "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.
(i) "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.
Section 20. Entry of order for support containing income
withholding provisions; income withholding notice.
(a) In addition to any content required under other
laws, every order for support entered on or after July 1,
1997, shall:
(1) Require an income withholding notice to be
prepared and served immediately upon any payor of the
obligor by the obligee or public office, 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 ensures
payment of support. In that case, the order for support
shall provide that an income withholding notice is to be
prepared and served only if the obligor becomes
delinquent in paying the order for support; and
(2) Contain a dollar amount to be paid until
payment in full of any delinquency that accrues after
entry of the order for support. The amount for payment
of delinquency shall not be less than 20% of the total of
the current support amount and the amount to be paid
periodically for payment of any arrearage stated in the
order for support; and
(3) Include the obligor's Social Security Number,
which the obligor shall disclose to the court. If the
obligor is not a United States citizen, the obligor shall
disclose to the court, and the court shall include in the
order for support, the obligor's alien registration
number, passport number, and home country's social
security or national health number, if applicable.
(b) At the time the order for support is entered, the
Clerk of the Circuit Court shall provide a copy of the order
to the obligor and shall make copies available to the obligee
and public office.
(c) The income withholding notice shall:
(1) be in the standard format prescribed by the
federal Department of Health and Human Services; and
(2) direct any payor to withhold the dollar amount
required for current support under the order for support;
and
(3) direct any payor to withhold the dollar amount
required to be paid periodically under the order for
support for payment of the amount of any arrearage stated
in the order for support; and
(4) 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
(5) state the amount of the payor income
withholding fee specified under this Section; and
(6) state that the amount actually withheld from
the obligor's income for support and other purposes,
including the payor withholding fee specified under this
Section, may not be in excess of the maximum amount
permitted under the federal Consumer Credit Protection
Act; and
(7) state the duties of the payor and the fines and
penalties for failure to withhold and pay over income and
for discharging, disciplining, refusing to hire, or
otherwise penalizing the obligor because of the duty to
withhold and pay over income under this Section; and
(8) state the rights, remedies, and duties of the
obligor under this Section; and
(9) include the obligor's Social Security Number;
and
(10) 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.
(d) The accrual of a delinquency as a condition for
service of an income withholding notice, under the exception
to immediate withholding in subsection (a) of this Section,
shall apply only to the initial service of an income
withholding notice on a payor of the obligor.
(e) Notwithstanding the exception to immediate
withholding contained in subsection (a) of this Section, if
the court finds at the time of any hearing that an arrearage
has accrued, the court shall order immediate service of an
income withholding notice upon the payor.
(f) If the order for support, under the exception to
immediate withholding contained in subsection (a) of this
Section, provides that an income withholding notice is to be
prepared and served only if the obligor becomes delinquent in
paying the order for support, the obligor may execute a
written waiver of that condition and request immediate
service on the payor.
(g) The obligee or public office may serve the income
withholding notice on the payor or its superintendent,
manager, or other agent by ordinary mail or certified mail
return receipt requested, by facsimile transmission or other
electronic means, by personal delivery, or by any method
provided by law for service of a summons. At the time of
service on the payor and as notice that withholding has
commenced, the obligee or public office shall serve a copy of
the income withholding notice on the obligor by ordinary mail
addressed to his or her last known address. Proofs of
service on the payor and the obligor shall be filed with the
Clerk of the Circuit Court.
(h) At any time after the initial service of an income
withholding notice, any other payor of the obligor may be
served with the same income withholding notice without
further notice to the obligor.
(i) New service of an income withholding notice is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an income withholding
notice 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.
Section 25. Income withholding after accrual of
delinquency.
(a) Whenever an obligor accrues a delinquency, the
obligee or public office may prepare and serve upon the
obligor's payor an income withholding notice that:
(1) contains the information required under
subsection (c) of Section 20; and
(2) contains a computation of the period and total
amount of the delinquency as of the date of the notice;
and
(3) directs the payor to withhold the dollar amount
required to be withheld periodically under the order for
support for payment of the delinquency.
(b) The income withholding notice and the obligor's copy
of the income withholding notice shall be served as provided
in subsection (g) of Section 20.
(c) The obligor may contest withholding commenced under
this Section by filing a petition to contest withholding with
the Clerk of the Circuit Court within 20 days after service
of a copy of the income withholding notice on the obligor.
However, the grounds for the petition to contest withholding
shall be limited to:
(1) a dispute concerning the existence or amount of
the delinquency; or
(2) the identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office of the time and place of the
hearing on the petition to contest withholding. The court
shall hold the hearing pursuant to the provisions of Section
40.
Section 30. Initiated withholding.
(a) Notwithstanding any other provision of this Act, if
the court has not required that income withholding take
effect immediately, the obligee or public office may initiate
withholding, regardless of whether a delinquency has accrued,
by preparing and serving an income withholding notice on the
payor that contains the information required under subsection
(c) of Section 20 and states that the parties' written
agreement providing an alternative arrangement to immediate
withholding under subsection (a) of Section 20 no longer
ensures payment of support due and the reason or reasons why
it does not.
(b) The income withholding notice and the obligor's copy
of the income withholding notice shall be served as provided
in subsection (g) of Section 20.
(c) The obligor may contest withholding commenced under
this Section by filing a petition to contest withholding with
the Clerk of the Circuit Court within 20 days after service
of a copy of the income withholding notice on the obligor.
However, the grounds for the petition shall be limited to a
dispute concerning:
(1) whether the parties' written agreement providing
an alternative arrangement to immediate withholding under
subsection (a) of Section 20 continues to ensure payment
of support; or
(2) the identity of the obligor.
It shall not be grounds for filing a petition that the
obligor has made all payments due by the date of the
petition.
(d) If the obligor files a petition contesting
withholding within the 20-day period required under
subsection (c), 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. The
court shall hold the hearing pursuant to the provisions of
Section 40.
Section 35. Duties of payor.
(a) It shall be the duty of any payor who has been
served with an income withholding notice to deduct and pay
over income as provided in this Section. The payor shall
deduct the amount designated in the income withholding
notice, as supplemented by any notice provided pursuant to
subsection (f) of Section 45, beginning no later than the
next payment of income which is payable or creditable to the
obligor that occurs 14 days following the date the income
withholding notice was mailed, sent by facsimile or other
electronic means, or placed for personal delivery to or
service on the payor. 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 7 business days after the date the amount would (but
for the duty to withhold income) have been paid or credited
to the obligor. If the payor knowingly fails to pay any
amount withheld to the obligee or public office within 7
business days after the date the amount would have been paid
or credited 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 7 business days
has expired. The failure of a payor, on more than one
occasion, to pay amounts withheld to the obligee or public
office within 7 business days after the date the amount would
have been paid or credited to the obligor creates a
presumption that the payor knowingly failed to pay over the
amounts. This penalty may be collected in a civil action
which may be brought against the payor in favor of the
obligee or public office. A finding of a payor's
nonperformance within the time required under this Act must
be documented by a certified mail return receipt showing the
date the income withholding notice was served on the payor.
For purposes of this Act, 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 the amount
would (but for the duty to withhold income) have been paid or
credited to the obligor.
Upon receipt of an income withholding notice 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 income
withholding notice. 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.
(b) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the income
withholding notice to the obligee or public office and shall
provide information for the purpose of enforcing this Act.
(c) Withholding of income under this Act 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 Act 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 income withholding notice 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 cases in which cash
assistance under the Illinois Public Aid Code is not being
provided to the obligee and then to past due support payments
ordered in cases in which cash assistance under the Illinois
Public Aid Code is being provided to the obligee, both on a
proportionate share basis. A payor who complies with an
income withholding notice that is regular on its face shall
not be subject to civil liability with respect to any
individual, any agency, or any creditor of the obligor for
conduct in compliance with the notice.
(d) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
Section 40. Petitions to contest withholding or to
modify, suspend, terminate, or correct income withholding
notices.
(a) When an obligor files a petition to contest
withholding, 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, ordering service of an
amended income withholding notice, where applicable, or
otherwise resolving the matter.
The court shall deny the obligor's petition if the court
finds that when the income withholding notice was mailed,
sent by facsimile transmission or other electronic means, or
placed for personal delivery to or service on the payor:
(1) a delinquency existed; or
(2) the parties' written agreement providing an
alternative arrangement to immediate withholding under
subsection (a) of Section 20 no longer ensured payment of
support.
(b) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(1) modify, suspend or terminate the income
withholding notice because of a modification, suspension
or termination of the underlying order for support; or
(2) 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
(3) suspend the income withholding notice 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.
(c) At any time an obligor may petition the court to
correct a term contained in an income withholding notice to
conform to that stated in the underlying order for support
for:
(1) the amount of current support;
(2) the amount of the arrearage;
(3) the periodic amount for payment of the
arrearage; or
(4) the periodic amount for payment of the
delinquency.
(d) The obligor, obligee or public office shall serve on
the payor, in the manner provided for service of income
withholding notices in subsection (g) of Section 20, a copy
of any order entered pursuant to this Section that affects
the duties of the payor.
(e) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(1) 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
(2) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(f) The notice provided for under subsection (e) of this
Section shall be served on the payor in the manner provided
for service of income withholding notices in subsection (g)
of Section 20, and a copy shall be provided to the obligor
and the obligee.
(g) The income withholding notice shall continue to be
binding upon the payor until service of an amended income
withholding notice or any order of the court or notice
entered or provided for under this Section.
Section 45. Additional duties.
(a) An obligee who is receiving income withholding
payments under this Act 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.
(b) An obligee who is a recipient of public aid shall
send a copy of any income withholding notice served by the
obligee to the Division of Child Support Enforcement of the
Illinois Department of Public Aid.
(c) Each obligor shall notify the obligee, the public
office, and the Clerk of the Circuit Court of any change of
address within 7 days.
(d) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this Act
shall notify the obligee, the public office, and the Clerk of
the Circuit Court of any new payor, within 7 days.
(e) 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.
(f) 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.
(g) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
income withholding notices 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 Act.
(h) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Act 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.
(i) 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 the amount would (but for the
duty to withhold income) have been paid or credited to the
obligor.
Section 50. Penalties.
(a) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served income withholding
notice, or wilfully discharges, disciplines, refuses to hire
or otherwise penalizes an obligor as prohibited by Section
40, or otherwise fails to comply with any duties imposed by
this Act, 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:
(1) shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(2) 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.
(b) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Act or who wilfully
fails to comply with the requirements of this Act shall be
punished as in cases of contempt of court.
Section 55. Alternative procedures for service of an
income withholding notice.
(a) The procedures of this Section may be used in any
matter to serve an income withholding notice on a payor if:
(1) for any reason the most recent order for
support entered does not contain the income withholding
provisions required under Section 20, irrespective of
whether a separate order for withholding was entered
prior to July 1, 1997; and
(2) the obligor has accrued a delinquency after
entry of the most recent order for support.
(b) The obligee or public office shall prepare and serve
the income withholding notice in accordance with the
provisions of Section 25, except that the notice shall
contain a periodic amount for payment of the delinquency
equal to 20% of the total of the current support amount and
the amount to be paid periodically for payment of any
arrearage stated in the most recent order for support.
(c) If the obligor requests in writing that income
withholding become effective prior to the obligor accruing a
delinquency under the most recent order for support, the
obligee or public office may prepare and serve an income
withholding notice on the payor as provided in Section 20.
In addition to filing proofs of service of the income
withholding notice on the payor and the obligor, the obligee
or public office shall file a copy of the obligor's written
request for income withholding with the Clerk of the Circuit
Court.
(d) All other provisions of this Act shall be applicable
with respect to the provisions of this Section 55.
Section 60. Remedies in addition to other laws.
(a) The rights, remedies, duties and penalties created
by this Act are in addition to and not in substitution for
any other rights, remedies, duties and penalties created by
any other law.
(b) Nothing in this Act shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984 (or July 1, 1985 with respect to
invalidity under the Illinois Parentage Act of 1984) or any
order for withholding served prior to July 1, 1997.
Section 905. The Collection Agency Act is amended by
changing Section 2.04 as follows:
(225 ILCS 425/2.04) (from Ch. 111, par. 2005.1)
Sec. 2.04. Child support indebtedness.
(a) Persons, associations, partnerships, or corporations
engaged in the business of collecting child support
indebtedness owing under a court order as provided under the
Illinois Public Aid Code, the Illinois Marriage and
Dissolution of Marriage Act, the Non-Support of Spouse and
Children Act, the Illinois Parentage Act of 1984, or similar
laws of other states are not restricted (i) in the frequency
of contact with an obligor who is in arrears, whether by
phone, mail, or other means, (ii) from contacting the
employer of an obligor who is in arrears, (iii) from
publishing or threatening to publish a list of obligors in
arrears, (iv) from disclosing or threatening to disclose an
arrearage that the obligor disputes, but for which a verified
notice of delinquency has been served under the Income
Withholding for Support Act (or any of its predecessors,
Section 10-16.2 of the Illinois Public Aid Code, Section
706.1 of the Illinois Marriage and Dissolution of Marriage
Act, Section 4.1 of the Non-Support of Spouse and Children
Act, Section 26.1 of the Revised Uniform Reciprocal
Enforcement of Support Act, or Section 20 of the Illinois
Parentage Act of 1984), or (v) from engaging in conduct that
would not cause a reasonable person mental or physical
illness. For purposes of this subsection, "obligor" means an
individual who owes a duty to make periodic payments, under a
court order, for the support of a child. "Arrearage" means
the total amount of an obligor's unpaid child support
obligations.
(b) The Department shall adopt rules necessary to
administer and enforce the provisions of this Section.
(Source: P.A. 87-1200.)
Section 910. The Illinois Public Aid Code is amended by
changing Sections 10-10, 10-16.2, 10-16.4, and 10-17.2 as
follows:
(305 ILCS 5/10-10) (from Ch. 23, par. 10-10)
Sec. 10-10. Court enforcement; applicability also to
persons who are not applicants or recipients. Except where
the Illinois Department, by agreement, acts for the local
governmental unit, as provided in Section 10-3.1, local
governmental units shall refer to the State's Attorney or to
the proper legal representative of the governmental unit, for
judicial enforcement as herein provided, instances of
non-support or insufficient support when the dependents are
applicants or recipients under Article VI. The Child and
Spouse Support Unit established by Section 10-3.1 may
institute in behalf of the Illinois Department any actions
under this Section for judicial enforcement of the support
liability when the dependents are (a) applicants or
recipients under Articles III, IV, V or VII (b) applicants or
recipients in a local governmental unit when the Illinois
Department, by agreement, acts for the unit; or (c)
non-applicants or non-recipients who are receiving support
enforcement services under this Article X, as provided in
Section 10-1. Where the Child and Spouse Support Unit has
exercised its option and discretion not to apply the
provisions of Sections 10-3 through 10-8, the failure by the
Unit to apply such provisions shall not be a bar to bringing
an action under this Section.
Action shall be brought in the circuit court to obtain
support, or for the recovery of aid granted during the period
such support was not provided, or both for the obtainment of
support and the recovery of the aid provided. Actions for
the recovery of aid may be taken separately or they may be
consolidated with actions to obtain support. Such actions
may be brought in the name of the person or persons requiring
support, or may be brought in the name of the Illinois
Department or the local governmental unit, as the case
requires, in behalf of such persons.
The court may enter such orders for the payment of moneys
for the support of the person as may be just and equitable
and may direct payment thereof for such period or periods of
time as the circumstances require, including support for a
period before the date the order for support is entered. The
order may be entered against any or all of the defendant
responsible relatives and may be based upon the proportionate
ability of each to contribute to the person's support.
The Court shall determine the amount of child support
(including child support for a period before the date the
order for child support is entered) by using the guidelines
and standards set forth in subsection (a) of Section 505 and
in Section 505.2 of the Illinois Marriage and Dissolution of
Marriage Act. For purposes of determining the amount of child
support to be paid for a period before the date the order for
child support is entered, there is a rebuttable presumption
that the responsible relative's net income for that period
was the same as his or her net income at the time the order
is entered.
An order entered under this Section shall include a
provision requiring the obligor to report to the obligee and
to the clerk of court within 10 days each time the obligor
obtains new employment, and each time the obligor's
employment is terminated for any reason. The report shall be
in writing and shall, in the case of new employment, include
the name and address of the new employer. Failure to report
new employment or the termination of current employment, if
coupled with nonpayment of support for a period in excess of
60 days, is indirect criminal contempt. For any obligor
arrested for failure to report new employment bond shall be
set in the amount of the child support that should have been
paid during the period of unreported employment. An order
entered under this Section shall also include a provision
requiring the obligor and obligee parents to advise each
other of a change in residence within 5 days of the change
except when the court finds that the physical, mental, or
emotional health of a party or that of a minor child, or
both, would be seriously endangered by disclosure of the
party's address.
The Court shall determine the amount of maintenance using
the standards set forth in Section 504 of the Illinois
Marriage and Dissolution of Marriage Act.
Any new or existing support order entered by the court
under this Section shall be deemed to be a series of
judgments against the person obligated to pay support
thereunder, each such judgment to be in the amount of each
payment or installment of support and each such judgment to
be deemed entered as of the date the corresponding payment or
installment becomes due under the terms of the support order.
Each such judgment shall have the full force, effect and
attributes of any other judgment of this State, including the
ability to be enforced. Any such judgment is subject to
modification or termination only in accordance with Section
510 of the Illinois Marriage and Dissolution of Marriage Act.
A lien arises by operation of law against the real and
personal property of the noncustodial parent for each
installment of overdue support owed by the noncustodial
parent.
When an order is entered for the support of a minor, the
court may provide therein for reasonable visitation of the
minor by the person or persons who provided support pursuant
to the order. Whoever willfully refuses to comply with such
visitation order or willfully interferes with its enforcement
may be declared in contempt of court and punished therefor.
Except where the local governmental unit has entered into
an agreement with the Illinois Department for the Child and
Spouse Support Unit to act for it, as provided in Section
10-3.1, support orders entered by the court in cases
involving applicants or recipients under Article VI shall
provide that payments thereunder be made directly to the
local governmental unit. Orders for the support of all other
applicants or recipients shall provide that payments
thereunder be made directly to the Illinois Department. In
accordance with federal law and regulations, the Illinois
Department may continue to collect current maintenance
payments or child support payments, or both, after those
persons cease to receive public assistance and until
termination of services under Article X. The Illinois
Department shall pay the net amount collected to those
persons after deducting any costs incurred in making the
collection or any collection fee from the amount of any
recovery made. In both cases the order shall permit the
local governmental unit or the Illinois Department, as the
case may be, to direct the responsible relative or relatives
to make support payments directly to the needy person, or to
some person or agency in his behalf, upon removal of the
person from the public aid rolls or upon termination of
services under Article X.
If the notice of support due issued pursuant to Section
10-7 directs that support payments be made directly to the
needy person, or to some person or agency in his behalf, and
the recipient is removed from the public aid rolls, court
action may be taken against the responsible relative
hereunder if he fails to furnish support in accordance with
the terms of such notice.
Actions may also be brought under this Section in behalf
of any person who is in need of support from responsible
relatives, as defined in Section 2-11 of Article II who is
not an applicant for or recipient of financial aid under this
Code. In such instances, the State's Attorney of the county
in which such person resides shall bring action against the
responsible relatives hereunder. If the Illinois Department,
as authorized by Section 10-1, extends the support services
provided by this Article to spouses and dependent children
who are not applicants or recipients under this Code, the
Child and Spouse Support Unit established by Section 10-3.1
shall bring action against the responsible relatives
hereunder and any support orders entered by the court in such
cases shall provide that payments thereunder be made directly
to the Illinois Department.
Whenever it is determined in a proceeding to establish or
enforce a child support or maintenance obligation that the
person owing a duty of support is unemployed, the court may
order the person to seek employment and report periodically
to the court with a diary, listing or other memorandum of his
or her efforts in accordance with such order. Additionally,
the court may order the unemployed person to report to the
Department of Employment Security for job search services or
to make application with the local Jobs Training Partnership
Act provider for participation in job search, training or
work programs and where the duty of support is owed to a
child receiving support services under this Article X, the
court may order the unemployed person to report to the
Illinois Department for participation in job search, training
or work programs established under Section 9-6 and Article
IXA of this Code.
Whenever it is determined that a person owes past-due
support for a child receiving assistance under this Code, the
court shall order at the request of the Illinois Department:
(1) that the person pay the past-due support in
accordance with a plan approved by the court; or
(2) if the person owing past-due support is
unemployed, is subject to such a plan, and is not
incapacitated, that the person participate in such job
search, training, or work programs established under
Section 9-6 and Article IXA of this Code as the court
deems appropriate.
A determination under this Section shall not be
administratively reviewable by the procedures specified in
Sections 10-12, and 10-13 to 10-13.10. Any determination
under these Sections, if made the basis of court action under
this Section, shall not affect the de novo judicial
determination required under this Section.
A one-time charge of 20% is imposable upon the amount of
past-due child support owed on July 1, 1988 which has accrued
under a support order entered by the court. The charge shall
be imposed in accordance with the provisions of Section 10-21
of this Code and shall be enforced by the court upon
petition.
All orders for support, when entered or modified, shall
include a provision requiring the non-custodial parent to
notify the court and, in cases in which a party is receiving
child and spouse support services under this Article X, the
Illinois Department, within 7 days, (i) of the name, address,
and telephone number of any new employer of the non-custodial
parent, (ii) whether the non-custodial parent has access to
health insurance coverage through the employer or other group
coverage and, if so, the policy name and number and the names
of persons covered under the policy, and (iii) of any new
residential or mailing address or telephone number of the
non-custodial parent. In any subsequent action to enforce a
support order, upon a sufficient showing that a diligent
effort has been made to ascertain the location of the
non-custodial parent, service of process or provision of
notice necessary in the case may be made at the last known
address of the non-custodial parent in any manner expressly
provided by the Code of Civil Procedure or this Code, which
service shall be sufficient for purposes of due process.
In cases in which a party is receiving child and spouse
support services under this Article X and the order for
support provides that child support payments be made to the
obligee, the Illinois Department of Public Aid may provide
notice to the obligor and the obligor's payor, when income
withholding is in effect in accordance with the Income
Withholding for Support Act under Section 10-16.2, to make
all payments after receipt of the Illinois Department's
notice to the clerk of the court until further notice by the
Illinois Department or order of the court. Copies of the
notice shall be provided to the obligee and the clerk. The
clerk's copy shall contain a proof of service on the obligor
and the obligor's payor, where applicable. The clerk shall
file the clerk's copy of the notice in the court file. The
notice to the obligor and the payor, if applicable, may be
sent by ordinary mail, certified mail, return receipt
requested, facsimile transmission, or other electronic
process, or may be served upon the obligor or payor using any
method provided by law for service of a summons. An obligor
who fails to comply with a notice provided under this
paragraph is guilty of a Class B misdemeanor. A payor who
fails to comply with a notice provided under this paragraph
is guilty of a business offense and subject to a fine of up
to $1,000.
An order for support shall include a date on which the
current support obligation terminates. The termination date
shall be no earlier than the date on which the child covered
by the order will attain the age of majority or is otherwise
emancipated. The order for support shall state that the
termination date does not apply to any arrearage that may
remain unpaid on that date. Nothing in this paragraph shall
be construed to prevent the court from modifying the order.
Upon notification in writing or by electronic
transmission from the Illinois Department to the clerk of the
court that a person who is receiving support payments under
this Section is receiving services under the Child Support
Enforcement Program established by Title IV-D of the Social
Security Act, any support payments subsequently received by
the clerk of the court shall be transmitted in accordance
with the instructions of the Illinois Department until the
Illinois Department gives notice to the clerk of the court to
cease the transmittal. After providing the notification
authorized under this paragraph, the Illinois Department
shall be entitled as a party to notice of any further
proceedings in the case. The clerk of the court shall file a
copy of the Illinois Department's notification in the court
file. The clerk's failure to file a copy of the
notification in the court file shall not, however, affect the
Illinois Department's right to receive notice of further
proceedings.
Payments under this Section to the Illinois Department
pursuant to the Child Support Enforcement Program established
by Title IV-D of the Social Security Act shall be paid into
the Child Support Enforcement Trust Fund. All other payments
under this Section to the Illinois Department shall be
deposited in the Public Assistance Recoveries Trust Fund.
Disbursements from these funds shall be as provided in
Sections 12-9 and 12-10.2 of this Code. Payments received by
a local governmental unit shall be deposited in that unit's
General Assistance Fund.
(Source: P.A. 90-18, eff. 7-1-97; 90-539, eff. 6-1-98;
revised 12-23-97.)
(305 ILCS 5/10-16.2) (from Ch. 23, par. 10-16.2)
Sec. 10-16.2. Withholding of Income to Secure Payment of
Support. Orders for support entered under this Code are
subject to the Income Withholding for Support Act.
(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 as determined by the court and incorporated into
an order for support.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after entry of
the order for support.
(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,
pension, and retirement benefits, lottery prize awards,
insurance proceeds, vacation pay, bonuses, profit-sharing
payments, interest, 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 Order for Support Containing Income Withholding
Provisions; Income Withholding Notice.
(1) In addition to any content required under other
laws, every order for support entered on or after July 1,
1997, shall:
(a) Require an income withholding notice to be
prepared and served immediately upon any payor of the
obligor by the obligee or public office, 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 ensures
payment of support. In that case, the order for support
shall provide that an income withholding notice is to be
prepared and served only if the obligor becomes
delinquent in paying the order for support; and
(b) Contain a dollar amount to be paid until
payment in full of any delinquency that accrues after
entry of the order for support. The amount for payment
of delinquency shall not be less than 20% of the total of
the current support amount and the amount to be paid
periodically for payment of any arrearage stated in the
order for support; and
(c) Include the obligor's Social Security Number,
which the obligor shall disclose to the court. If the
obligor is not a United States citizen, the obligor shall
disclose to the court, and the court shall include in the
order for support, the obligor's alien registration
number, passport number, and home country's social
security or national health number, if applicable.
(2) At the time the order for support is entered, the
Clerk of the Circuit Court shall provide a copy of the order
to the obligor and shall make copies available to the obligee
and public office.
(3) The income withholding notice shall:
(a) Be in the standard format prescribed by the
federal Department of Health and Human Services; and
(b) Direct any payor to withhold the dollar amount
required for current support under the order for support;
and
(c) Direct any payor to withhold the dollar amount
required to be paid periodically under the order for
support for payment of the amount of any arrearage stated
in the order for support; and
(d) 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
(e) State the amount of the payor income
withholding fee specified under this Section; and
(f) State that the amount actually withheld from
the obligor's income for support and other purposes,
including the payor withholding fee specified under this
Section, may not be in excess of the maximum amount
permitted under the federal Consumer Credit Protection
Act; and
(g) State the duties of the payor and the fines and
penalties for failure to withhold and pay over income and
for discharging, disciplining, refusing to hire, or
otherwise penalizing the obligor because of the duty to
withhold and pay over income under this Section; and
(h) State the rights, remedies, and duties of the
obligor under this Section; and
(i) Include the obligor's Social Security Number;
and
(j) 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) The accrual of a delinquency as a condition for
service of an income withholding notice, under the exception
to immediate withholding in paragraph (1) of this subsection,
shall apply only to the initial service of an income
withholding notice on a payor of the obligor.
(5) Notwithstanding the exception to immediate
withholding contained in paragraph (1) of this subsection, if
the court finds at the time of any hearing that an arrearage
has accrued, the court shall order immediate service of an
income withholding notice upon the payor.
(6) If the order for support, under the exception to
immediate withholding contained in paragraph (1) of this
subsection, provides that an income withholding notice is to
be prepared and served only if the obligor becomes delinquent
in paying the order for support, the obligor may execute a
written waiver of that condition and request immediate
service on the payor.
(7) The obligee or public office may serve the income
withholding notice on the payor or its superintendent,
manager, or other agent by ordinary mail or certified mail
return receipt requested, by facsimile transmission or other
electronic means, by personal delivery, or by any method
provided by law for service of a summons. At the time of
service on the payor and as notice that withholding has
commenced, the obligee or public office shall serve a copy of
the income withholding notice on the obligor by ordinary mail
addressed to his or her last known address. Proofs of
service on the payor and the obligor shall be filed with the
Clerk of the Circuit Court.
(8) At any time after the initial service of an income
withholding notice under this Section, any other payor of the
obligor may be served with the same income withholding notice
without further notice to the obligor.
(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.
(C) Income Withholding After Accrual of Delinquency.
(1) Whenever an obligor accrues a delinquency, the
obligee or public office may prepare and serve upon the
obligor's payor an income withholding notice that:
(a) Contains the information required under
paragraph (3) of subsection (B); and
(b) Contains a computation of the period and total
amount of the delinquency as of the date of the notice;
and
(c) Directs the payor to withhold the dollar amount
required to be withheld periodically under the order for
support for payment of the delinquency.
(2) The income withholding notice and the obligor's copy
of the income withholding notice shall be served as provided
in paragraph (7) of subsection (B).
(3) The obligor may contest withholding commenced under
this subsection by filing a petition to contest withholding
with the Clerk of the Circuit Court within 20 days after
service of a copy of the income withholding notice on the
obligor. However, the grounds for the petition to contest
withholding shall be limited to:
(a) A dispute concerning the existence or amount of
the delinquency; or
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office of the time and place of the
hearing on the petition to contest withholding. The court
shall hold the hearing pursuant to the provisions of
subsection (F).
(D) Initiated Withholding.
(1) Notwithstanding any other provision of this Section,
if the court has not required that income withholding take
effect immediately, the obligee or public office may initiate
withholding, regardless of whether a delinquency has accrued,
by preparing and serving an income withholding notice on the
payor that contains the information required under paragraph
(3) of subsection (B) and states that the parties' written
agreement providing an alternative arrangement to immediate
withholding under paragraph (1) of subsection (B) no longer
ensures payment of support and the reason or reasons why it
does not.
(2) The income withholding notice and the obligor's copy
of the income withholding notice shall be served as provided
in paragraph (7) of subsection (B).
(3) The obligor may contest withholding commenced under
this subsection by filing a petition to contest withholding
with the Clerk of the Circuit Court within 20 days after
service of a copy of the income withholding notice on the
obligor. However, the grounds for the petition shall be
limited to a dispute concerning:
(a) whether the parties' written agreement providing
an alternative arrangement to immediate withholding under
paragraph (1) of subsection (B) continues to ensure
payment of support; or
(b) the identity of the obligor.
It shall not be grounds for filing a petition that the
obligor has made all payments due by the date of the
petition.
(4) If the obligor files a petition contesting
withholding within the 20-day period required under paragraph
(3), 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. The court shall
hold the hearing pursuant to the provisions of subsection
(F). regular or facsimile regular or facsimile
(E) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with an income withholding notice to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the income withholding
notice, as supplemented by any notice provided pursuant to
paragraph (6) of subsection (G), beginning no later than the
next payment of income which is payable or creditable to the
obligor that occurs 14 days following the date the income
withholding notice was mailed, sent by facsimile or other
electronic means, or placed for personal delivery to or
service on the payor. 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 7 business days after the date the amount would (but
for the duty to withhold income) have been paid or credited
to the obligor. If the payor knowingly fails to pay any
amount withheld to the obligee or public office within 7
business days after the date the amount would have been paid
or credited 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 7 business days
has expired. The failure of a payor, on more than one
occasion, to pay amounts withheld to the obligee or public
office within 7 business days after the date the amount would
have been paid or credited to the obligor creates a
presumption that the payor knowingly failed to pay over the
amounts. This penalty may be collected in a civil action
which may be brought against the payor in favor of the
obligee or public office. 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 the amount
would (but for the duty to withhold income) have been paid or
credited to the obligor.
Upon receipt of an income withholding notice 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 income
withholding notice. 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 income
withholding notice 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 income withholding notice
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 cases in which
cash assistance under this Code is not being provided to the
obligee and then to past due support payments ordered in
cases in which cash assistance under this Code is being
provided to the obligee, both on a proportionate share basis.
A payor who complies with an income withholding notice that
is regular on its face shall not be subject to civil
liability with respect to any individual, any agency, or any
creditor of the obligor for conduct in compliance with the
notice.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(F) Petitions to Contest Withholding or to Modify, Suspend,
Terminate, or Correct Income Withholding Notices.
(1) When an obligor files a petition to contest
withholding, 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, ordering service of an
amended income withholding notice, where applicable, or
otherwise resolving the matter.
The court shall deny the obligor's petition if the court
finds that when the income withholding notice was mailed,
sent by facsimile transmission or other electronic means, or
placed for personal delivery to or service on the payor:
(a) A delinquency existed; or
(b) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of subsection (B) no longer ensured payment
of support.
(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 income
withholding notice 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 income withholding notice 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) At any time an obligor may petition the court to
correct a term contained in an income withholding notice to
conform to that stated in the underlying order for support
for:
(a) The amount of current support;
(b) The amount of the arrearage;
(c) The periodic amount for payment of the
arrearage; or
(d) The periodic amount for payment of the
delinquency.
(4) The obligor, obligee or public office shall serve on
the payor, in the manner provided for service of income
withholding notices in paragraph (7) of subsection (B), a
copy of any order entered pursuant to this subsection that
affects the duties of the payor.
(5) 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.
(6) The notice provided for under paragraph (5) of this
subsection shall be served on the payor in the manner
provided for service of income withholding notices in
paragraph (7) of subsection (B), and a copy shall be provided
to the obligor and the obligee.
(7) The income withholding notice shall continue to be
binding upon the payor until service of an amended income
withholding notice or any order of the court or notice
entered or provided for under this subsection.
(G) 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 income withholding notice served by the
obligee to the Division of Child Support Enforcement of the
Illinois Department of Public Aid.
(3) Each obligor shall notify the obligee, the public
office, 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, the public office, 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
income withholding notices 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 the amount would (but for the
duty to withhold income) have been paid or credited to the
obligor.
(H) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served income withholding
notice, or wilfully discharges, disciplines, refuses to hire
or otherwise penalizes an obligor as prohibited by subsection
(E), 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.
(I) Alternative Procedures for Service of an Income
Withholding Notice.
(1) The procedures of this subsection may be used in any
matter to serve an income withholding notice on a payor if:
(a) For any reason the most recent order for
support entered does not contain the income withholding
provisions required under subsection (B), irrespective of
whether a separate order for withholding was entered
prior to July 1, 1997; and
(b) The obligor has accrued a delinquency after
entry of the most recent order for support.
(2) The obligee or public office shall prepare and serve
the income withholding notice in accordance with the
provisions of subsection (C), except that the notice shall
contain a periodic amount for payment of the delinquency
equal to 20% of the total of the current support amount and
the amount to be paid periodically for payment of any
arrearage stated in the most recent order for support.
(3) If the obligor requests in writing that income
withholding become effective prior to the obligor accruing a
delinquency under the most recent order for support, the
obligee or public office may prepare and serve an income
withholding notice on the payor as provided in subsection
(B). In addition to filing proofs of service of the income
withholding notice on the payor and the obligor, the obligee
or public office shall file a copy of the obligor's written
request for income withholding with the Clerk of the Circuit
Court.
(4) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(I).
(J) 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 or any order for withholding served
prior to July 1, 1997.
(Source: P.A. 89-507, eff. 7-1-97; 90-18, eff. 7-1-97;
90-425, eff. 8-15-97; revised 9-29-97.)
(305 ILCS 5/10-16.4)
Sec. 10-16.4. Information concerning obligors.
(a) In this Section:
"Arrearage", "delinquency", "obligor", and "order for
support" have the meanings attributed to those terms in the
Income Withholding for Support Act Section 10-16.2 of this
Code.
"Consumer reporting agency" has the meaning attributed to
that term in Section 603(f) of the Fair Credit Reporting Act,
15 U.S.C. 1681a(f).
(b) Whenever a court of competent jurisdiction finds
that an obligor either owes an arrearage of more than $10,000
or is delinquent in payment of an amount equal to at least 3
months' support obligation pursuant to an order for support,
the court shall direct the clerk of the court to make
information concerning the obligor available to consumer
reporting agencies.
(c) Whenever a court of competent jurisdiction finds
that an obligor either owes an arrearage of more than $10,000
or is delinquent in payment of an amount equal to at least 3
months' support obligation pursuant to an order for support,
the court shall direct the clerk of the court to cause the
obligor's name and address to be published in a newspaper of
general circulation in the area in which the obligor resides.
The clerk shall cause the obligor's name and address to be
published only after sending to the obligor at the obligor's
last known address, by certified mail, return receipt
requested, a notice of intent to publish the information.
This subsection (c) applies only if the obligor resides in
the county in which the clerk of the court holds office.
(Source: P.A. 90-466, eff. 1-1-98.)
(305 ILCS 5/10-17.2) (from Ch. 23, par. 10-17.2)
Sec. 10-17.2. Income Withholding By Administrative
Order. The Illinois Department may provide by rule for entry
of an administrative support order containing income
withholding provisions and for service and enforcement of an
income withholding notice, by the Child and Spouse Support
Unit based upon and in the same manner as prescribed by the
Income Withholding for Support Act Section 10-16.2. The
penalties provided in the Income Withholding for Support Act
Section 10-16.2 shall apply hereto and shall be enforced by
filing an action under that Act Section. The rule shall
provide for notice to and an opportunity to be heard by the
responsible relative affected and any final administrative
decision rendered by the Department shall be reviewed only
under and in accordance with the Administrative Review Law.
(Source: P.A. 90-18, eff. 7-1-97.)
Section 915. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Sections 507, 511, 705,
706.1, 706.3, and 713 as follows:
(750 ILCS 5/507) (from Ch. 40, par. 507)
Sec. 507. Payment of maintenance or support to court.
(a) In actions instituted under this Act, the court
shall order that maintenance and support payments be made to
the clerk of court as trustee for remittance to the person
entitled to receive the payments. However, the court in its
discretion may direct otherwise where circumstances so
warrant.
In cases in which a party is receiving child and spouse
support services under Article X of the Illinois Public Aid
Code and the order for support provides that child support
payments be made to the obligee, the Illinois Department of
Public Aid may provide notice to the obligor and the
obligor's payor, when income withholding is in effect in
accordance with the Income Withholding for Support under
Section 706.1 of this Act, to make all payments after receipt
of the Department's notice to the clerk of the court until
further notice by the Department or order of the court.
Copies of the notice shall be provided to the obligee and the
clerk. The clerk's copy shall contain a proof of service on
the obligor and the obligor's payor, where applicable. The
clerk shall file the clerk's copy of the notice in the court
file. The notice to the obligor and the payor, if applicable,
may be sent by ordinary mail, certified mail, return receipt
requested, facsimile transmission, or other electronic
process, or may be served upon the obligor or payor using any
method provided by law for service of a summons. An obligor
who fails to comply with a notice provided under this
paragraph is guilty of a Class B misdemeanor. A payor who
fails to comply with a notice provided under this paragraph
is guilty of a business offense and subject to a fine of up
to $1,000.
Upon notification in writing or by electronic
transmission from the Illinois Department of Public Aid to
the clerk of the court that a person who is receiving support
payments under this Section is receiving services under the
Child Support Enforcement Program established by Title IV-D
of the Social Security Act, any support payments subsequently
received by the clerk of the court shall be transmitted in
accordance with the instructions of the Illinois Department
of Public Aid until the Department gives notice to the clerk
of the court to cease the transmittal. After providing the
notification authorized under this paragraph, the Illinois
Department of Public Aid shall be entitled as a party to
notice of any further proceedings in the case. The clerk of
the court shall file a copy of the Illinois Department of
Public Aid's notification in the court file. The failure of
the clerk to file a copy of the notification in the court
file shall not, however, affect the Illinois Department of
Public Aid's right to receive notice of further proceedings.
(b) The clerk of court shall maintain records listing
the amount of payments, the date payments are required to be
made and the names and addresses of the parties affected by
the order. For those cases in which support is payable to the
clerk of the circuit court for transmittal to the Illinois
Department of Public Aid by order of the court or upon
notification of the Illinois Department of Public Aid, and
the Illinois Department of Public Aid collects support by
assignment, offset, withholding, deduction or other process
permitted by law, the Illinois Department shall notify the
clerk of the date and amount of such collection. Upon
notification, the clerk shall record the collection on the
payment record for the case.
(c) The parties affected by the order shall inform the
clerk of court of any change of address or of other condition
that may affect the administration of the order.
(d) The provisions of this Section shall not apply to
cases that come under the provisions of Sections 709 through
712.
(Source: P.A. 90-18, eff. 7-1-97.)
(750 ILCS 5/511) (from Ch. 40, par. 511)
Sec. 511. Procedure. A judgment of dissolution or of
legal separation or of declaration of invalidity of marriage
may be enforced or modified by order of court pursuant to
petition.
(a) Any judgment entered within this State may be
enforced or modified in the judicial circuit wherein such
judgment was entered or last modified by the filing of a
petition with notice mailed to the respondent at his last
known address, or by the issuance of summons to the
respondent. If neither party continues to reside in the
county wherein such judgment was entered or last modified,
the court on the motion of either party or on its own motion
may transfer a post-judgment proceeding, including a
proceeding under the Income Withholding for Support Section
706.1 of this Act, to another county or judicial circuit, as
appropriate, where either party resides. If the
post-judgment proceeding is with respect to maintenance or
support, any such transfer shall be to the county or judicial
circuit wherein the recipient or proposed recipient of such
maintenance or support resides.
(b) In any post-judgment proceeding to enforce or modify
in one judicial circuit the judgment of another judicial
circuit of this State, the moving party shall commence the
proceeding by filing a petition establishing the judgment and
attaching a copy of the judgment as a part of the petition.
The parties shall continue to be designated as in the
original proceeding. Notice of the filing of the petition
shall be mailed to the clerk of the court wherein the
judgment was entered and last modified in the same manner as
notice is mailed when registering a foreign judgment. Summons
shall be served as provided by law.
(c) In any post-judgment proceeding to enforce or modify
the judgment of another state, the moving party shall
commence the proceeding by filing a petition to enroll that
judgment, attaching a copy thereof as a part of the petition
and proceed as provided for in paragraph (b) hereof.
(d) In any post-judgment proceeding to enforce a
judgment or order for payment of maintenance or support,
including a proceeding under the Income Withholding for
Support Section 706.1 of this Act, where the terms of such
judgment or order provide that payments of such maintenance
or support are to be made to the clerk of the court and where
neither party continues to reside in the county wherein such
judgment or order was entered or last modified, the court on
the motion of either party or on its own motion may transfer
the collection of the maintenance or support to the clerk of
the court in another county or judicial circuit, as
appropriate, wherein the recipient of the maintenance or
support payments resides.
(Source: P.A. 85-2.)
(750 ILCS 5/705) (from Ch. 40, par. 705)
Sec. 705. Support payments; receiving and disbursing
agents.
(1) The provisions of this Section shall apply, except
as provided in Sections 709 through 712.
(2) In a dissolution of marriage action filed in a
county of less than 3 million population in which an order or
judgment for child support is entered, and in supplementary
proceedings in any such county to enforce or vary the terms
of such order or judgment arising out of an action for
dissolution of marriage filed in such county, the court,
except as it otherwise orders, under subsection (4) of this
Section, may direct that child support payments be made to
the clerk of the court.
(3) In a dissolution of marriage action filed in any
county of 3 million or more population in which an order or
judgment for child support is entered, and in supplementary
proceedings in any such county to enforce or vary the terms
of such order or judgment arising out of an action for
dissolution of marriage filed in such county, the court,
except as it otherwise orders under subsection (4) of this
Section, may direct that child support payments be made
either to the clerk of the court or to the Court Service
Division of the County Department of Public Aid. After the
effective date of this Act, the court, except as it otherwise
orders under subsection (4) of this Section, may direct that
child support payments be made either to the clerk of the
court or to the Illinois Department of Public Aid.
(4) In a dissolution of marriage action or supplementary
proceedings involving maintenance or child support payments,
or both, to persons who are recipients of aid under the
Illinois Public Aid Code, the court shall direct that such
payments be made to (a) the Illinois Department of Public Aid
if the persons are recipients under Articles III, IV, or V of
the Code, or (b) the local governmental unit responsible for
their support if they are recipients under Articles VI or VII
of the Code. In accordance with federal law and regulations,
the Illinois Department of Public Aid may continue to collect
current maintenance payments or child support payments, or
both, after those persons cease to receive public assistance
and until termination of services under Article X of the
Illinois Public Aid Code. The Illinois Department of Public
Aid shall pay the net amount collected to those persons after
deducting any costs incurred in making the collection or any
collection fee from the amount of any recovery made. The
order shall permit the Illinois Department of Public Aid or
the local governmental unit, as the case may be, to direct
that payments be made directly to the former spouse, the
children, or both, or to some person or agency in their
behalf, upon removal of the former spouse or children from
the public aid rolls or upon termination of services under
Article X of the Illinois Public Aid Code; and upon such
direction, the Illinois Department or local governmental
unit, as the case requires, shall give notice of such action
to the court in writing or by electronic transmission.
(5) All clerks of the court and the Court Service
Division of a County Department of Public Aid and, after the
effective date of this Act, all clerks of the court and the
Illinois Department of Public Aid, receiving child support
payments under subsections (2) and (3) of this Section shall
disburse the payments to the person or persons entitled
thereto under the terms of the order or judgment. They shall
establish and maintain current records of all moneys received
and disbursed and of defaults and delinquencies in required
payments. The court, by order or rule, shall make provision
for the carrying out of these duties.
In cases in which a party is receiving child and spouse
support services under Article X of the Illinois Public Aid
Code and the order for support provides that child support
payments be made to the obligee, the Illinois Department of
Public Aid may provide notice to the obligor and the
obligor's payor, when income withholding is in effect in
accordance with the Income Withholding for Support under
Section 706.1 of this Act, to make all payments after receipt
of the Department's notice to the clerk of the court until
further notice by the Department or order of the court.
Copies of the notice shall be provided to the obligee and the
clerk. The clerk's copy shall contain a proof of service on
the obligor and the obligor's payor, where applicable. The
clerk shall file the clerk's copy of the notice in the court
file. The notice to the obligor and the payor, if applicable,
may be sent by ordinary mail, certified mail, return receipt
requested, facsimile transmission, or other electronic
process, or may be served upon the obligor or payor using any
method provided by law for service of a summons. An obligor
who fails to comply with a notice provided under this
paragraph is guilty of a Class B misdemeanor. A payor who
fails to comply with a notice provided under this paragraph
is guilty of a business offense and subject to a fine of up
to $1,000.
Upon notification in writing or by electronic
transmission from the Illinois Department of Public Aid to
the clerk of the court that a person who is receiving support
payments under this Section is receiving services under the
Child Support Enforcement Program established by Title IV-D
of the Social Security Act, any support payments subsequently
received by the clerk of the court shall be transmitted in
accordance with the instructions of the Illinois Department
of Public Aid until the Department gives notice to the clerk
of the court to cease the transmittal. After providing the
notification authorized under this paragraph, the Illinois
Department of Public Aid shall be entitled as a party to
notice of any further proceedings in the case. The clerk of
the court shall file a copy of the Illinois Department of
Public Aid's notification in the court file. The failure of
the clerk to file a copy of the notification in the court
file shall not, however, affect the Illinois Department of
Public Aid's right to receive notice of further proceedings.
Payments under this Section to the Illinois Department of
Public Aid pursuant to the Child Support Enforcement Program
established by Title IV-D of the Social Security Act shall be
paid into the Child Support Enforcement Trust Fund. All other
payments under this Section to the Illinois Department of
Public Aid shall be deposited in the Public Assistance
Recoveries Trust Fund. Disbursements from these funds shall
be as provided in the Illinois Public Aid Code. Payments
received by a local governmental unit shall be deposited in
that unit's General Assistance Fund. Any order of court
directing payment of child support to a clerk of court or the
Court Service Division of a County Department of Public Aid,
which order has been entered on or after August 14, 1961, and
prior to the effective date of this Act, may be amended by
the court in line with this Act; and orders involving
payments of maintenance or child support to recipients of
public aid may in like manner be amended to conform to this
Act.
(6) No filing fee or costs will be required in any
action brought at the request of the Illinois Department of
Public Aid in any proceeding under this Act. However, any
such fees or costs may be assessed by the court against the
respondent in the court's order of support or any
modification thereof in a proceeding under this Act.
(7) For those cases in which child support is payable to
the clerk of the circuit court for transmittal to the
Illinois Department of Public Aid by order of court or upon
notification by the Illinois Department of Public Aid, the
clerk shall transmit all such payments, within 4 working days
of receipt, to insure that funds are available for immediate
distribution by the Department to the person or entity
entitled thereto in accordance with standards of the Child
Support Enforcement Program established under Title IV-D of
the Social Security Act. The clerk shall notify the
Department of the date of receipt and amount thereof at the
time of transmittal. Where the clerk has entered into an
agreement of cooperation with the Department to record the
terms of child support orders and payments made thereunder
directly into the Department's automated data processing
system, the clerk shall account for, transmit and otherwise
distribute child support payments in accordance with such
agreement in lieu of the requirements contained herein.
In any action filed in a county with a population of
1,000,000 or less, the court shall assess against the
respondent in any order of maintenance or child support any
sum up to $36 annually authorized by ordinance of the county
board to be collected by the clerk of the court as costs for
administering the collection and disbursement of maintenance
and child support payments. Such sum shall be in addition to
and separate from amounts ordered to be paid as maintenance
or child support.
(Source: P.A. 90-18, eff. 7-1-97.)
(750 ILCS 5/706.1) (from Ch. 40, par. 706.1)
Sec. 706.1. Withholding of Income to Secure Payment of
Support. Orders for support entered under this Act are
subject to the Income Withholding for Support Act.
(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 as determined by the court and incorporated into
an order for support.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after entry of
the order for support.
(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,
pension, and retirement benefits, lottery prize awards,
insurance proceeds, vacation pay, bonuses, profit-sharing
payments, interest, 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 Order for Support Containing Income Withholding
Provisions; Income Withholding Notice.
(1) In addition to any content required under other
laws, every order for support entered on or after July 1,
1997, shall:
(a) Require an income withholding notice to be
prepared and served immediately upon any payor of the
obligor by the obligee or public office, 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 ensures
payment of support. In that case, the order for support
shall provide that an income withholding notice is to be
prepared and served only if the obligor becomes
delinquent in paying the order for support; and
(b) Contain a dollar amount to be paid until
payment in full of any delinquency that accrues after
entry of the order for support. The amount for payment
of delinquency shall not be less than 20% of the total of
the current support amount and the amount to be paid
periodically for payment of any arrearage stated in the
order for support; and
(c) Include the obligor's Social Security Number,
which the obligor shall disclose to the court. If the
obligor is not a United States citizen, the obligor shall
disclose to the court, and the court shall include in the
order for support, the obligor's alien registration
number, passport number, and home country's social
security or national health number, if applicable.
(2) At the time the order for support is entered, the
Clerk of the Circuit Court shall provide a copy of the order
to the obligor and shall make copies available to the obligee
and public office.
(3) The income withholding notice shall:
(a) Be in the standard format prescribed by the
federal Department of Health and Human Services; and
(b) Direct any payor to withhold the dollar amount
required for current support under the order for support;
and
(c) Direct any payor to withhold the dollar amount
required to be paid periodically under the order for
support for payment of the amount of any arrearage stated
in the order for support; and
(d) 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
(e) State the amount of the payor income
withholding fee specified under this Section; and
(f) State that the amount actually withheld from
the obligor's income for support and other purposes,
including the payor withholding fee specified under this
Section, may not be in excess of the maximum amount
permitted under the federal Consumer Credit Protection
Act; and
(g) State the duties of the payor and the fines and
penalties for failure to withhold and pay over income and
for discharging, disciplining, refusing to hire, or
otherwise penalizing the obligor because of the duty to
withhold and pay over income under this Section; and
(h) State the rights, remedies, and duties of the
obligor under this Section; and
(i) Include the obligor's Social Security Number;
and
(j) 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) The accrual of a delinquency as a condition for
service of an income withholding notice, under the exception
to immediate withholding in paragraph (1) of this subsection,
shall apply only to the initial service of an income
withholding notice on a payor of the obligor.
(5) Notwithstanding the exception to immediate
withholding contained in paragraph (1) of this subsection, if
the court finds at the time of any hearing that an arrearage
has accrued, the court shall order immediate service of an
income withholding notice upon the payor.
(6) If the order for support, under the exception to
immediate withholding contained in paragraph (1) of this
subsection, provides that an income withholding notice is to
be prepared and served only if the obligor becomes delinquent
in paying the order for support, the obligor may execute a
written waiver of that condition and request immediate
service on the payor.
(7) The obligee or public office may serve the income
withholding notice on the payor or its superintendent,
manager, or other agent by ordinary mail or certified mail
return receipt requested, by facsimile transmission or other
electronic means, by personal delivery, or by any method
provided by law for service of a summons. At the time of
service on the payor and as notice that withholding has
commenced, the obligee or public office shall serve a copy of
the income withholding notice on the obligor by ordinary mail
addressed to his or her last known address. Proofs of
service on the payor and the obligor shall be filed with the
Clerk of the Circuit Court.
(8) At any time after the initial service of an income
withholding notice under this Section, any other payor of the
obligor may be served with the same income withholding notice
without further notice to the obligor.
(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.
(C) Income Withholding After Accrual of Delinquency.
(1) Whenever an obligor accrues a delinquency, the
obligee or public office may prepare and serve upon the
obligor's payor an income withholding notice that:
(a) Contains the information required under
paragraph (3) of subsection (B); and
(b) Contains a computation of the period and total
amount of the delinquency as of the date of the notice;
and
(c) Directs the payor to withhold the dollar amount
required to be withheld periodically under the order for
support for payment of the delinquency.
(2) The income withholding notice and the obligor's copy
of the income withholding notice shall be served as provided
in paragraph (7) of subsection (B).
(3) The obligor may contest withholding commenced under
this subsection by filing a petition to contest withholding
with the Clerk of the Circuit Court within 20 days after
service of a copy of the income withholding notice on the
obligor. However, the grounds for the petition to contest
withholding shall be limited to:
(a) A dispute concerning the existence or amount of
the delinquency; or
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office of the time and place of the
hearing on the petition to contest withholding. The court
shall hold the hearing pursuant to the provisions of
subsection (F).
(D) Initiated Withholding.
(1) Notwithstanding any other provision of this Section,
if the court has not required that income withholding take
effect immediately, the obligee or public office may initiate
withholding, regardless of whether a delinquency has accrued,
by preparing and serving an income withholding notice on the
payor that contains the information required under paragraph
(3) of subsection (B) and states that the parties' written
agreement providing an alternative arrangement to immediate
withholding under paragraph (1) of subsection (B) no longer
ensures payment of support due and the reason or reasons why
it does not.
(2) The income withholding notice and the obligor's copy
of the income withholding notice shall be served as provided
in paragraph (7) of subsection (B).
(3) The obligor may contest withholding commenced under
this subsection by filing a petition to contest withholding
with the Clerk of the Circuit Court within 20 days after
service of a copy of the income withholding notice on the
obligor. However, the grounds for the petition shall be
limited to a dispute concerning:
(a) whether the parties' written agreement providing
an alternative arrangement to immediate withholding under
paragraph (1) of subsection (B) continues to ensure
payment of support; or
(b) the identity of the obligor.
It shall not be grounds for filing a petition that the
obligor has made all payments due by the date of the
petition.
(4) If the obligor files a petition contesting
withholding within the 20-day period required under paragraph
(3), 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. The court shall
hold the hearing pursuant to the provisions of subsection
(F). regular or facsimile regular or facsimile
(E) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with an income withholding notice to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the income withholding
notice, as supplemented by any notice provided pursuant to
paragraph (6) of subsection (G), beginning no later than the
next payment of income which is payable or creditable to the
obligor that occurs 14 days following the date the income
withholding notice was mailed, sent by facsimile or other
electronic means, or placed for personal delivery to or
service on the payor. 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 7 business days after the date the amount would (but
for the duty to withhold income) have been paid or credited
to the obligor. If the payor knowingly fails to pay any
amount withheld to the obligee or public office within 7
business days after the date the amount would have been paid
or credited 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 7 business days
has expired. The failure of a payor, on more than one
occasion, to pay amounts withheld to the obligee or public
office within 7 business days after the date the amount would
have been paid or credited to the obligor creates a
presumption that the payor knowingly failed to pay over the
amounts. This penalty may be collected in a civil action
which may be brought against the payor in favor of the
obligee or public office. 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 the amount
would (but for the duty to withhold income) have been paid or
credited to the obligor.
Upon receipt of an income withholding notice 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 income
withholding notice. 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 income
withholding notice 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 income withholding notice
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 cases in which
cash assistance under the Illinois Public Aid Code is not
being provided to the obligee and then to past due support
payments ordered in cases in which cash assistance under the
Illinois Public Aid Code is being provided to the obligee,
both on a proportionate share basis. A payor who complies
with an income withholding notice that is regular on its face
shall not be subject to civil liability with respect to any
individual, any agency, or any creditor of the obligor for
conduct in compliance with the notice.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(F) Petitions to Contest Withholding or to Modify, Suspend,
Terminate, or Correct Income Withholding Notices.
(1) When an obligor files a petition to contest
withholding, 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, ordering service of an
amended income withholding notice, where applicable, or
otherwise resolving the matter.
The court shall deny the obligor's petition if the court
finds that when the income withholding notice was mailed,
sent by facsimile transmission or other electronic means, or
placed for personal delivery to or service on the payor:
(a) A delinquency existed; or
(b) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of subsection (B) no longer ensured payment
of support.
(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 income
withholding notice 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 income withholding notice 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) At any time an obligor may petition the court to
correct a term contained in an income withholding notice to
conform to that stated in the underlying order for support
for:
(a) The amount of current support;
(b) The amount of the arrearage;
(c) The periodic amount for payment of the
arrearage; or
(d) The periodic amount for payment of the
delinquency.
(4) The obligor, obligee or public office shall serve on
the payor, in the manner provided for service of income
withholding notices in paragraph (7) of subsection (B), a
copy of any order entered pursuant to this subsection that
affects the duties of the payor.
(5) 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.
(6) The notice provided for under paragraph (5) of this
subsection shall be served on the payor in the manner
provided for service of income withholding notices in
paragraph (7) of subsection (B), and a copy shall be provided
to the obligor and the obligee.
(7) The income withholding notice shall continue to be
binding upon the payor until service of an amended income
withholding notice or any order of the court or notice
entered or provided for under this subsection.
(G) 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 served by the obligee to the
Division of Child Support Enforcement of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee, the public
office, 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, the public office, 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
income withholding notices 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 the amount would (but for the
duty to withhold income) have been paid or credited to the
obligor.
(H) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served income withholding
notice, or wilfully discharges, disciplines, refuses to hire
or otherwise penalizes an obligor as prohibited by subsection
(E), 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 e