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Public Act 91-0445
HB2219 Enrolled LRB9102791RCks
AN ACT to create the offense of aggravated domestic
battery, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 1961 is amended by
adding Section 12-3.3 as follows:
(720 ILCS 5/12-3.3 new)
Sec. 12-3.3. Aggravated domestic battery.
(a) A person who, in committing a domestic battery,
intentionally or knowingly causes great bodily harm, or
permanent disability or disfigurement commits aggravated
domestic battery.
(b) Sentence. Aggravated domestic battery is a Class 2
felony. Any order of probation or conditional discharge
entered following a conviction for an offense under this
Section must include, in addition to any other condition of
probation or conditional discharge, a condition that the
offender serve a mandatory term of imprisonment of not less
than 60 consecutive days. A person convicted of a second or
subsequent violation of this Section must be sentenced to a
mandatory term of imprisonment of not less than 3 years and
not more than 7 years or an extended term of imprisonment of
not less than 7 years and not more than 14 years.
Section 10. The Code of Criminal Procedure of 1963 is
amended by changing Sections 110-6.3 and 111-8 as follows:
(725 ILCS 5/110-6.3) (from Ch. 38, par. 110-6.3)
Sec. 110-6.3. Denial of bail in stalking and aggravated
stalking offenses.
(a) Upon verified petition by the State, the court shall
hold a hearing to determine whether bail should be denied to
a defendant who is charged with stalking or aggravated
stalking, when it is alleged that the defendant's admission
to bail poses a real and present threat to the physical
safety of the alleged victim of the offense, and denial of
release on bail or personal recognizance is necessary to
prevent fulfillment of the threat upon which the charge is
based.
(1) A petition may be filed without prior notice to
the defendant at the first appearance before a judge, or
within 21 calendar days, except as provided in Section
110-6, after arrest and release of the defendant upon
reasonable notice to defendant; provided that while the
petition is pending before the court, the defendant if
previously released shall not be detained.
(2) The hearing shall be held immediately upon the
defendant's appearance before the court, unless for good
cause shown the defendant or the State seeks a
continuance. A continuance on motion of the defendant
may not exceed 5 calendar days, and the defendant may be
held in custody during the continuance. A continuance on
the motion of the State may not exceed 3 calendar days;
however, the defendant may be held in custody during the
continuance under this provision if the defendant has
been previously found to have violated an order of
protection or has been previously convicted of, or
granted court supervision for, any of the offenses set
forth in Sections 12-2, 12-3.2, 12-3.3, 12-4, 12-4.1,
12-7.3, 12-7.4, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of
the Criminal Code of 1961, against the same person as the
alleged victim of the stalking or aggravated stalking
offense.
(b) The court may deny bail to the defendant when, after
the hearing, it is determined that:
(1) the proof is evident or the presumption great
that the defendant has committed the offense of stalking
or aggravated stalking; and
(2) the defendant poses a real and present threat
to the physical safety of the alleged victim of the
offense; and
(3) the denial of release on bail or personal
recognizance is necessary to prevent fulfillment of the
threat upon which the charge is based; and
(4) the court finds that no condition or
combination of conditions set forth in subsection (b) of
Section 110-10 of this Code, including mental health
treatment at a community mental health center, hospital,
or facility of the Department of Human Services, can
reasonably assure the physical safety of the alleged
victim of the offense.
(c) Conduct of the hearings.
(1) The hearing on the defendant's culpability and
threat to the alleged victim of the offense shall be
conducted in accordance with the following provisions:
(A) Information used by the court in its
findings or stated in or offered at the hearing may
be by way of proffer based upon reliable information
offered by the State or by defendant. Defendant has
the right to be represented by counsel, and if he is
indigent, to have counsel appointed for him.
Defendant shall have the opportunity to testify, to
present witnesses in his own behalf, and to
cross-examine witnesses if any are called by the
State. The defendant has the right to present
witnesses in his favor. When the ends of justice so
require, the court may exercise its discretion and
compel the appearance of a complaining witness. The
court shall state on the record reasons for granting
a defense request to compel the presence of a
complaining witness. Cross-examination of a
complaining witness at the pretrial detention
hearing for the purpose of impeaching the witness'
credibility is insufficient reason to compel the
presence of the witness. In deciding whether to
compel the appearance of a complaining witness, the
court shall be considerate of the emotional and
physical well-being of the witness. The pretrial
detention hearing is not to be used for the purposes
of discovery, and the post arraignment rules of
discovery do not apply. The State shall tender to
the defendant, prior to the hearing, copies of
defendant's criminal history, if any, if available,
and any written or recorded statements and the
substance of any oral statements made by any person,
if relied upon by the State. The rules concerning
the admissibility of evidence in criminal trials do
not apply to the presentation and consideration of
information at the hearing. At the trial concerning
the offense for which the hearing was conducted
neither the finding of the court nor any transcript
or other record of the hearing shall be admissible
in the State's case in chief, but shall be
admissible for impeachment, or as provided in
Section 115-10.1 of this Code, or in a perjury
proceeding.
(B) A motion by the defendant to suppress
evidence or to suppress a confession shall not be
entertained. Evidence that proof may have been
obtained as the result of an unlawful search and
seizure or through improper interrogation is not
relevant to this state of the prosecution.
(2) The facts relied upon by the court to support a
finding that:
(A) the defendant poses a real and present
threat to the physical safety of the alleged victim
of the offense; and
(B) the denial of release on bail or personal
recognizance is necessary to prevent fulfillment of
the threat upon which the charge is based;
shall be supported by clear and convincing evidence
presented by the State.
(d) Factors to be considered in making a determination
of the threat to the alleged victim of the offense. The court
may, in determining whether the defendant poses, at the time
of the hearing, a real and present threat to the physical
safety of the alleged victim of the offense, consider but
shall not be limited to evidence or testimony concerning:
(1) The nature and circumstances of the offense
charged;
(2) The history and characteristics of the
defendant including:
(A) Any evidence of the defendant's prior
criminal history indicative of violent, abusive or
assaultive behavior, or lack of that behavior. The
evidence may include testimony or documents received
in juvenile proceedings, criminal, quasi-criminal,
civil commitment, domestic relations or other
proceedings;
(B) Any evidence of the defendant's
psychological, psychiatric or other similar social
history that tends to indicate a violent, abusive,
or assaultive nature, or lack of any such history.
(3) The nature of the threat which is the basis of
the charge against the defendant;
(4) Any statements made by, or attributed to the
defendant, together with the circumstances surrounding
them;
(5) The age and physical condition of any person
assaulted by the defendant;
(6) Whether the defendant is known to possess or
have access to any weapon or weapons;
(7) Whether, at the time of the current offense or
any other offense or arrest, the defendant was on
probation, parole, mandatory supervised release or other
release from custody pending trial, sentencing, appeal or
completion of sentence for an offense under federal or
state law;
(8) Any other factors, including those listed in
Section 110-5 of this Code, deemed by the court to have a
reasonable bearing upon the defendant's propensity or
reputation for violent, abusive or assaultive behavior,
or lack of that behavior.
(e) The court shall, in any order denying bail to a
person charged with stalking or aggravated stalking:
(1) briefly summarize the evidence of the
defendant's culpability and its reasons for concluding
that the defendant should be held without bail;
(2) direct that the defendant be committed to the
custody of the sheriff for confinement in the county jail
pending trial;
(3) direct that the defendant be given a reasonable
opportunity for private consultation with counsel, and
for communication with others of his choice by
visitation, mail and telephone; and
(4) direct that the sheriff deliver the defendant
as required for appearances in connection with court
proceedings.
(f) If the court enters an order for the detention of
the defendant under subsection (e) of this Section, the
defendant shall be brought to trial on the offense for which
he is detained within 90 days after the date on which the
order for detention was entered. If the defendant is not
brought to trial within the 90 day period required by this
subsection (f), he shall not be held longer without bail. In
computing the 90 day period, the court shall omit any period
of delay resulting from a continuance granted at the request
of the defendant. The court shall immediately notify the
alleged victim of the offense that the defendant has been
admitted to bail under this subsection.
(g) Any person shall be entitled to appeal any order
entered under this Section denying bail to the defendant.
(h) The State may appeal any order entered under this
Section denying any motion for denial of bail.
(i) Nothing in this Section shall be construed as
modifying or limiting in any way the defendant's presumption
of innocence in further criminal proceedings.
(Source: P.A. 89-462, eff. 5-29-96; 89-507, eff. 7-1-97;
90-14, eff. 7-1-97.)
(725 ILCS 5/111-8) (from Ch. 38, par. 111-8)
Sec. 111-8. Orders of protection to prohibit domestic
violence.
(a) Whenever a violation of Section 9-1, 9-2, 9-3, 10-4,
10-5, 11-15, 11-15.1 11-20a, 12-1, 12-2, 12-3, 12-3.3, 12-4,
12-4.1, 12-4.3, 12-5, 12-6, 12-11, 12-13, 12-14, 12-14.1,
12-15 or 12-16 of the Criminal Code of 1961, as now or
hereafter amended, is alleged in an information, complaint or
indictment on file, and the alleged offender and victim are
family or household members, as defined in the Illinois
Domestic Violence Act, as now or hereafter amended, the
People through the respective State's Attorneys may by
separate petition and upon notice to the defendant, except as
provided in subsection (c) herein, request the court to issue
an order of protection.
(b) In addition to any other remedies specified in
Section 208 of the Illinois Domestic Violence Act, as now or
hereafter amended, the order may direct the defendant to
initiate no contact with the alleged victim or victims who
are family or household members and to refrain from entering
the residence, school or place of business of the alleged
victim or victims.
(c) The court may grant emergency relief without notice
upon a showing of immediate and present danger of abuse to
the victim or minor children of the victim and may enter a
temporary order pending notice and full hearing on the
matter.
(Source: P.A. 89-313, eff. 1-1-96; 89-428, eff. 12-13-95;
89-462, eff. 5-29-96.)
Section 15. The Crime Victims Compensation Act is
amended by changing Section 2 as follows:
(740 ILCS 45/2) (from Ch. 70, par. 72)
Sec. 2. Definitions. As used in this Act, unless the
context otherwise requires:
(a) "Applicant" means any person who applies for
compensation under this Act or any person the Court of Claims
finds is entitled to compensation, including the guardian of
a minor or of a person under legal disability. It includes
any person who was a dependent of a deceased victim of a
crime of violence for his or her support at the time of the
death of that victim.
(b) "Court of Claims" means the Court of Claims created
by the Court of Claims Act.
(c) "Crime of violence" means and includes any offense
defined in Sections 9-1, 9-2, 9-3, 10-1, 10-2, 11-11,
11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.2, 12-3.3, 12-4,
12-4.1, 12-4.2, 12-4.3, 12-5, 12-13, 12-14, 12-14.1, 12-15,
12-16, 12-30, 20-1 or 20-1.1 of the Criminal Code of 1961,
and driving under the influence of intoxicating liquor or
narcotic drugs as defined in Section 11-501 of the Illinois
Vehicle Code, if none of the said offenses occurred during a
civil riot, insurrection or rebellion. "Crime of violence"
does not include any other offense or accident involving a
motor vehicle except those vehicle offenses specifically
provided for in this paragraph. "Crime of violence" does
include all of the offenses specifically provided for in this
paragraph that occur within this State but are subject to
federal jurisdiction and crimes involving terrorism as
defined in 18 U.S.C. 2331.
(d) "Victim" means (1) a person killed or injured in
this State as a result of a crime of violence perpetrated or
attempted against him or her, (2) the parent of a child
killed or injured in this State as a result of a crime of
violence perpetrated or attempted against the child, (3) a
person killed or injured in this State while attempting to
assist a person against whom a crime of violence is being
perpetrated or attempted, if that attempt of assistance would
be expected of a reasonable man under the circumstances, (4)
a person killed or injured in this State while assisting a
law enforcement official apprehend a person who has
perpetrated a crime of violence or prevent the perpetration
of any such crime if that assistance was in response to the
express request of the law enforcement official, (5) a person
under the age of 18 who personally witnessed a violent crime
perpetrated or attempted against a relative and, solely for
the purpose of compensating for pecuniary loss incurred for
psychological treatment of a mental or emotional condition
caused or aggravated by the crime, any other person under the
age of 18 who is the brother, sister, half brother, or half
sister of a person killed or injured in this State as a
result of a crime of violence, or (6) an Illinois resident
who is a victim of a "crime of violence" as defined in this
Act except, if the crime occurred outside this State, the
resident has the same rights under this Act as if the crime
had occurred in this State upon a showing that the state,
territory, country, or political subdivision of a country in
which the crime occurred does not have a compensation of
victims of crimes law for which that Illinois resident is
eligible.
(e) "Dependent" means a relative of a deceased victim
who was wholly or partially dependent upon the victim's
income at the time of his or her death and shall include the
child of a victim born after his or her death.
(f) "Relative" means a spouse, parent, grandparent,
stepfather, stepmother, child, grandchild, brother,
brother-in-law, sister, sister-in-law, half brother, half
sister, spouse's parent, nephew, niece, uncle or aunt.
(g) "Child" means an unmarried son or daughter who is
under 18 years of age and includes a stepchild, an adopted
child or an illegitimate child.
(h) "Pecuniary loss" means, in the case of injury,
appropriate medical expenses and hospital expenses including
expenses of medical examinations, rehabilitation, medically
required nursing care expenses, appropriate psychiatric care
or psychiatric counseling expenses, expenses for care or
counseling by a licensed clinical psychologist or licensed
clinical social worker and expenses for treatment by
Christian Science practitioners and nursing care appropriate
thereto; prosthetic appliances, eyeglasses, and hearing aids
necessary or damaged as a result of the crime; the purchase,
lease, or rental of equipment necessary to create usability
of and accessibility to the victim's real and personal
property, or the real and personal property which is used by
the victim, necessary as a result of the crime; replacement
services loss, to a maximum of $1000 per month; dependents
replacement services loss, to a maximum of $1000 per month;
loss of tuition paid to attend grammar school or high school
when the victim had been enrolled as a full-time student
prior to the injury, or college or graduate school when the
victim had been enrolled as a full-time day or night student
prior to the injury when the victim becomes unable to
continue attendance at school as a result of the crime of
violence perpetrated against him or her; loss of earnings,
loss of future earnings because of disability resulting from
the injury, and, in addition, in the case of death, funeral
and burial expenses to a maximum of $5,000 and loss of
support of the dependents of the victim. Loss of future
earnings shall be reduced by any income from substitute work
actually performed by the victim or by income he or she would
have earned in available appropriate substitute work he or
she was capable of performing but unreasonably failed to
undertake. Loss of earnings, loss of future earnings and
loss of support shall be determined on the basis of the
victim's average net monthly earnings for the 6 months
immediately preceding the date of the injury or on $1000 per
month, whichever is less. If a divorced or legally separated
applicant is claiming loss of support for a minor child of
the deceased, the amount of support for each child shall be
based either on the amount of support the minor child
received pursuant to the judgment for the 6 months prior to
the date of the deceased victim's injury or death, or, if the
subject of pending litigation filed by or on behalf of the
divorced or legally separated applicant prior to the injury
or death, on the result of that litigation. Real and
personal property includes, but is not limited to, vehicles,
houses, apartments, town houses, or condominiums. Pecuniary
loss does not include pain and suffering or property loss or
damage.
(i) "Replacement services loss" means expenses
reasonably incurred in obtaining ordinary and necessary
services in lieu of those the permanently injured person
would have performed, not for income, but for the benefit of
himself or herself or his or her family, if he or she had not
been permanently injured.
(j) "Dependents replacement services loss" means loss
reasonably incurred by dependents after a victim's death in
obtaining ordinary and necessary services in lieu of those
the victim would have performed, not for income, but for
their benefit, if he or she had not been fatally injured.
(Source: P.A. 89-313, eff. 1-1-96; 89-428, eff. 12-13-95;
89-462, eff. 5-29-96; 90-136, eff. 1-1-98; 90-492, eff.
8-17-97; 90-655, eff. 7-30-98; 90-708, eff. 8-7-98.)
Section 20. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 503 as follows:
(750 ILCS 5/503) (from Ch. 40, par. 503)
(Text of Section before amendment by P.A. 90-731)
Sec. 503. Disposition of property.
(a) For purposes of this Act, "marital property" means
all property acquired by either spouse subsequent to the
marriage, except the following, which is known as
"non-marital property":
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property
acquired before the marriage or in exchange for property
acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment
of legal separation;
(4) property excluded by valid agreement of the
parties;
(5) any judgment or property obtained by judgment
awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a
method listed in paragraphs (1) through (6) of this
subsection, irrespective of whether the increase results
from a contribution of marital property, non-marital
property, the personal effort of a spouse, or otherwise,
subject to the right of reimbursement provided in
subsection (c) of this Section; and
(8) income from property acquired by a method
listed in paragraphs (1) through (7) of this subsection
if the income is not attributable to the personal effort
of a spouse.
(b) For purposes of distribution of property pursuant to
this Section, all property acquired by either spouse after
the marriage and before a judgment of dissolution of marriage
or declaration of invalidity of marriage, including
non-marital property transferred into some form of
co-ownership between the spouses, is presumed to be marital
property, regardless of whether title is held individually or
by the spouses in some form of co-ownership such as joint
tenancy, tenancy in common, tenancy by the entirety, or
community property. The presumption of marital property is
overcome by a showing that the property was acquired by a
method listed in subsection (a) of this Section.
(c) Commingled marital and non-marital property shall be
treated in the following manner, unless otherwise agreed by
the spouses:
(1) When marital and non-marital property are
commingled by contributing one estate of property into
another resulting in a loss of identity of the
contributed property, the classification of the
contributed property is transmuted to the estate
receiving the contribution, subject to the provisions of
paragraph (2) of this subsection; provided that if
marital and non-marital property are commingled into
newly acquired property resulting in a loss of identity
of the contributing estates, the commingled property
shall be deemed transmuted to marital property, subject
to the provisions of paragraph (2) of this subsection.
(2) When one estate of property makes a
contribution to another estate of property, or when a
spouse contributes personal effort to non-marital
property, the contributing estate shall be reimbursed
from the estate receiving the contribution
notwithstanding any transmutation; provided, that no such
reimbursement shall be made with respect to a
contribution which is not retraceable by clear and
convincing evidence, or was a gift, or, in the case of a
contribution of personal effort of a spouse to
non-marital property, unless the effort is significant
and results in substantial appreciation of the
non-marital property. Personal effort of a spouse shall
be deemed a contribution by the marital estate. The
court may provide for reimbursement out of the marital
property to be divided or by imposing a lien against the
non-marital property which received the contribution.
(d) In a proceeding for dissolution of marriage or
declaration of invalidity of marriage, or in a proceeding for
disposition of property following dissolution of marriage by
a court which lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the property, the
court shall assign each spouse's non-marital property to that
spouse. It also shall divide the marital property without
regard to marital misconduct in just proportions considering
all relevant factors, including:
(1) the contribution of each party to the
acquisition, preservation, or increase or decrease in
value of the marital or non-marital property, including
the contribution of a spouse as a homemaker or to the
family unit;
(2) the dissipation by each party of the marital or
non-marital property;
(3) the value of the property assigned to each
spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each
spouse when the division of property is to become
effective, including the desirability of awarding the
family home, or the right to live therein for reasonable
periods, to the spouse having custody of the children;
(6) any obligations and rights arising from a prior
marriage of either party;
(7) any antenuptial agreement of the parties;
(8) the age, health, station, occupation, amount
and sources of income, vocational skills, employability,
estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in
addition to maintenance;
(11) the reasonable opportunity of each spouse for
future acquisition of capital assets and income; and
(12) the tax consequences of the property division
upon the respective economic circumstances of the
parties.
(e) Each spouse has a species of common ownership in the
marital property which vests at the time dissolution
proceedings are commenced and continues only during the
pendency of the action. Any such interest in marital
property shall not encumber that property so as to restrict
its transfer, assignment or conveyance by the title holder
unless such title holder is specifically enjoined from making
such transfer, assignment or conveyance.
(f) In a proceeding for dissolution of marriage or
declaration of invalidity of marriage or in a proceeding for
disposition of property following dissolution of marriage by
a court that lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the property, the
court, in determining the value of the marital and
non-marital property for purposes of dividing the property,
shall value the property as of the date of trial or some
other date as close to the date of trial as is practicable.
(g) The court if necessary to protect and promote the
best interests of the children may set aside a portion of the
jointly or separately held estates of the parties in a
separate fund or trust for the support, maintenance,
education, and general welfare of any minor, dependent, or
incompetent child of the parties. In making a determination
under this subsection, the court may consider, among other
things, the conviction of a party of any of the offenses set
forth in Section 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13, 12-14,
12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if the
victim is a child of one or both of the parties, and there is
a need for, and cost of, care, healing and counseling for the
child who is the victim of the crime.
(h) Unless specifically directed by a reviewing court,
or upon good cause shown, the court shall not on remand
consider any increase or decrease in the value of any
"marital" or "non-marital" property occurring since the
assessment of such property at the original trial or hearing,
but shall use only that assessment made at the original trial
or hearing.
(i) The court may make such judgments affecting the
marital property as may be just and may enforce such
judgments by ordering a sale of marital property, with
proceeds therefrom to be applied as determined by the court.
(j) After proofs have closed in the final hearing on all
other issues between the parties (or in conjunction with the
final hearing, if all parties so stipulate) and before
judgment is entered, a party's petition for contribution to
fees and costs incurred in the proceeding shall be heard and
decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed
before the final hearing on other issues between the
parties, shall be filed no later than 30 days after the
closing of proofs in the final hearing or within such
other period as the court orders.
(2) Any award of contribution to one party from the
other party shall be based on the criteria for division
of marital property under this Section 503 and, if
maintenance has been awarded, on the criteria for an
award of maintenance under Section 504.
(3) The filing of a petition for contribution shall
not be deemed to constitute a waiver of the
attorney-client privilege between the petitioning party
and current or former counsel; and such a waiver shall
not constitute a prerequisite to a hearing for
contribution. If either party's presentation on
contribution, however, includes evidence within the scope
of the attorney-client privilege, the disclosure or
disclosures shall be narrowly construed and shall not be
deemed by the court to constitute a general waiver of the
privilege as to matters beyond the scope of the
presentation.
(4) No finding on which a contribution award is
based or denied shall be asserted against counsel or
former counsel for purposes of any hearing under
subsection (c) or (e) of Section 508.
(5) A contribution award (payable to either the
petitioning party or the party's counsel, or jointly, as
the court determines) may be in the form of either a set
dollar amount or a percentage of fees and costs (or a
portion of fees and costs) to be subsequently agreed upon
by the petitioning party and counsel or, alternatively,
thereafter determined in a hearing pursuant to subsection
(c) of Section 508 or previously or thereafter determined
in an independent proceeding under subsection (e) of
Section 508.
(6) The changes to this Section 503 made by this
amendatory Act of 1996 apply to cases pending on or after
June 1, 1997, except as otherwise provided in Section
508.
(Source: P.A. 88-45; 89-428, eff. 12-13-95; 89-462, eff.
5-29-96; 89-712, eff. 6-1-97.)
(Text of Section after amendment by P.A. 90-731)
Sec. 503. Disposition of property.
(a) For purposes of this Act, "marital property" means
all property acquired by either spouse subsequent to the
marriage, except the following, which is known as
"non-marital property":
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property
acquired before the marriage or in exchange for property
acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment
of legal separation;
(4) property excluded by valid agreement of the
parties;
(5) any judgment or property obtained by judgment
awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a
method listed in paragraphs (1) through (6) of this
subsection, irrespective of whether the increase results
from a contribution of marital property, non-marital
property, the personal effort of a spouse, or otherwise,
subject to the right of reimbursement provided in
subsection (c) of this Section; and
(8) income from property acquired by a method
listed in paragraphs (1) through (7) of this subsection
if the income is not attributable to the personal effort
of a spouse.
(b)(1) For purposes of distribution of property pursuant
to this Section, all property acquired by either spouse after
the marriage and before a judgment of dissolution of marriage
or declaration of invalidity of marriage, including
non-marital property transferred into some form of
co-ownership between the spouses, is presumed to be marital
property, regardless of whether title is held individually or
by the spouses in some form of co-ownership such as joint
tenancy, tenancy in common, tenancy by the entirety, or
community property. The presumption of marital property is
overcome by a showing that the property was acquired by a
method listed in subsection (a) of this Section.
(2) For purposes of distribution of property pursuant to
this Section, all pension benefits (including pension
benefits under the Illinois Pension Code) acquired by either
spouse after the marriage and before a judgment of
dissolution of marriage or declaration of invalidity of the
marriage are presumed to be marital property, regardless of
which spouse participates in the pension plan. The
presumption that these pension benefits are marital property
is overcome by a showing that the pension benefits were
acquired by a method listed in subsection (a) of this
Section. The right to a division of pension benefits in just
proportions under this Section is enforceable under Section
1-119 of the Illinois Pension Code.
The value of pension benefits in a retirement system
subject to the Illinois Pension Code shall be determined in
accordance with the valuation procedures established by the
retirement system.
The recognition of pension benefits as marital property
and the division of those benefits pursuant to a Qualified
Illinois Domestic Relations Order shall not be deemed to be a
diminishment, alienation, or impairment of those benefits.
The division of pension benefits is an allocation of property
in which each spouse has a species of common ownership.
(c) Commingled marital and non-marital property shall be
treated in the following manner, unless otherwise agreed by
the spouses:
(1) When marital and non-marital property are
commingled by contributing one estate of property into
another resulting in a loss of identity of the
contributed property, the classification of the
contributed property is transmuted to the estate
receiving the contribution, subject to the provisions of
paragraph (2) of this subsection; provided that if
marital and non-marital property are commingled into
newly acquired property resulting in a loss of identity
of the contributing estates, the commingled property
shall be deemed transmuted to marital property, subject
to the provisions of paragraph (2) of this subsection.
(2) When one estate of property makes a
contribution to another estate of property, or when a
spouse contributes personal effort to non-marital
property, the contributing estate shall be reimbursed
from the estate receiving the contribution
notwithstanding any transmutation; provided, that no such
reimbursement shall be made with respect to a
contribution which is not retraceable by clear and
convincing evidence, or was a gift, or, in the case of a
contribution of personal effort of a spouse to
non-marital property, unless the effort is significant
and results in substantial appreciation of the
non-marital property. Personal effort of a spouse shall
be deemed a contribution by the marital estate. The
court may provide for reimbursement out of the marital
property to be divided or by imposing a lien against the
non-marital property which received the contribution.
(d) In a proceeding for dissolution of marriage or
declaration of invalidity of marriage, or in a proceeding for
disposition of property following dissolution of marriage by
a court which lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the property, the
court shall assign each spouse's non-marital property to that
spouse. It also shall divide the marital property without
regard to marital misconduct in just proportions considering
all relevant factors, including:
(1) the contribution of each party to the
acquisition, preservation, or increase or decrease in
value of the marital or non-marital property, including
the contribution of a spouse as a homemaker or to the
family unit;
(2) the dissipation by each party of the marital or
non-marital property;
(3) the value of the property assigned to each
spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each
spouse when the division of property is to become
effective, including the desirability of awarding the
family home, or the right to live therein for reasonable
periods, to the spouse having custody of the children;
(6) any obligations and rights arising from a prior
marriage of either party;
(7) any antenuptial agreement of the parties;
(8) the age, health, station, occupation, amount
and sources of income, vocational skills, employability,
estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in
addition to maintenance;
(11) the reasonable opportunity of each spouse for
future acquisition of capital assets and income; and
(12) the tax consequences of the property division
upon the respective economic circumstances of the
parties.
(e) Each spouse has a species of common ownership in the
marital property which vests at the time dissolution
proceedings are commenced and continues only during the
pendency of the action. Any such interest in marital
property shall not encumber that property so as to restrict
its transfer, assignment or conveyance by the title holder
unless such title holder is specifically enjoined from making
such transfer, assignment or conveyance.
(f) In a proceeding for dissolution of marriage or
declaration of invalidity of marriage or in a proceeding for
disposition of property following dissolution of marriage by
a court that lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the property, the
court, in determining the value of the marital and
non-marital property for purposes of dividing the property,
shall value the property as of the date of trial or some
other date as close to the date of trial as is practicable.
(g) The court if necessary to protect and promote the
best interests of the children may set aside a portion of the
jointly or separately held estates of the parties in a
separate fund or trust for the support, maintenance,
education, and general welfare of any minor, dependent, or
incompetent child of the parties. In making a determination
under this subsection, the court may consider, among other
things, the conviction of a party of any of the offenses set
forth in Section 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13,
12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961
if the victim is a child of one or both of the parties, and
there is a need for, and cost of, care, healing and
counseling for the child who is the victim of the crime.
(h) Unless specifically directed by a reviewing court,
or upon good cause shown, the court shall not on remand
consider any increase or decrease in the value of any
"marital" or "non-marital" property occurring since the
assessment of such property at the original trial or hearing,
but shall use only that assessment made at the original trial
or hearing.
(i) The court may make such judgments affecting the
marital property as may be just and may enforce such
judgments by ordering a sale of marital property, with
proceeds therefrom to be applied as determined by the court.
(j) After proofs have closed in the final hearing on all
other issues between the parties (or in conjunction with the
final hearing, if all parties so stipulate) and before
judgment is entered, a party's petition for contribution to
fees and costs incurred in the proceeding shall be heard and
decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed
before the final hearing on other issues between the
parties, shall be filed no later than 30 days after the
closing of proofs in the final hearing or within such
other period as the court orders.
(2) Any award of contribution to one party from the
other party shall be based on the criteria for division
of marital property under this Section 503 and, if
maintenance has been awarded, on the criteria for an
award of maintenance under Section 504.
(3) The filing of a petition for contribution shall
not be deemed to constitute a waiver of the
attorney-client privilege between the petitioning party
and current or former counsel; and such a waiver shall
not constitute a prerequisite to a hearing for
contribution. If either party's presentation on
contribution, however, includes evidence within the scope
of the attorney-client privilege, the disclosure or
disclosures shall be narrowly construed and shall not be
deemed by the court to constitute a general waiver of the
privilege as to matters beyond the scope of the
presentation.
(4) No finding on which a contribution award is
based or denied shall be asserted against counsel or
former counsel for purposes of any hearing under
subsection (c) or (e) of Section 508.
(5) A contribution award (payable to either the
petitioning party or the party's counsel, or jointly, as
the court determines) may be in the form of either a set
dollar amount or a percentage of fees and costs (or a
portion of fees and costs) to be subsequently agreed upon
by the petitioning party and counsel or, alternatively,
thereafter determined in a hearing pursuant to subsection
(c) of Section 508 or previously or thereafter determined
in an independent proceeding under subsection (e) of
Section 508.
(6) The changes to this Section 503 made by this
amendatory Act of 1996 apply to cases pending on or after
June 1, 1997, except as otherwise provided in Section
508.
(Source: P.A. 88-45; 89-428, eff. 12-13-95; 89-462, eff.
5-29-96; 89-712, eff. 6-1-97; 90-731, eff. 7-1-99.)
Section 95. No acceleration or delay. Where this Act
makes changes in a statute that is represented in this Act by
text that is not yet or no longer in effect (for example, a
Section represented by multiple versions), the use of that
text does not accelerate or delay the taking effect of (i)
the changes made by this Act or (ii) provisions derived from
any other Public Act.
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