HB3484 EngrossedLRB102 13864 LNS 19215 b

1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Section 501 as follows:
6    (750 ILCS 5/501)  (from Ch. 40, par. 501)
7    Sec. 501. Temporary relief. In all proceedings under this
8Act, temporary relief shall be as follows:
9    (a) Either party may petition or move for:
10        (1) temporary maintenance or temporary support of a
11    child of the marriage entitled to support, accompanied by
12    an affidavit as to the factual basis for the relief
13    requested. One form of financial affidavit, as determined
14    by the Supreme Court, shall be used statewide. The
15    financial affidavit shall be supported by documentary
16    evidence including, but not limited to, income tax
17    returns, pay stubs, and banking statements. Unless the
18    court otherwise directs, any affidavit or supporting
19    documentary evidence submitted pursuant to this paragraph
20    shall not be made part of the public record of the
21    proceedings but shall be available to the court or an
22    appellate court in which the proceedings are subject to
23    review, to the parties, their attorneys, and such other



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1    persons as the court may direct. Upon motion of a party, a
2    court may hold a hearing to determine whether and why
3    there is a disparity between a party's sworn affidavit and
4    the supporting documentation. If a party intentionally or
5    recklessly files an inaccurate or misleading financial
6    affidavit, the court shall impose significant penalties
7    and sanctions including, but not limited to, costs and
8    attorney's fees;
9        (2) a temporary restraining order or preliminary
10    injunction, accompanied by affidavit showing a factual
11    basis for any of the following relief:
12            (i) restraining any person from transferring,
13        encumbering, concealing or otherwise disposing of any
14        property except in the usual course of business or for
15        the necessities of life, and, if so restrained,
16        requiring him to notify the moving party and his
17        attorney of any proposed extraordinary expenditures
18        made after the order is issued; however, an order need
19        not include an exception for transferring,
20        encumbering, or otherwise disposing of property in the
21        usual course of business or for the necessities of
22        life if the court enters appropriate orders that
23        enable the parties to pay their necessary personal and
24        business expenses including, but not limited to,
25        appropriate professionals to assist the court pursuant
26        to subsection (l) of Section 503 to administer the



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1        payment and accounting of such living and business
2        expenses;
3            (ii) enjoining a party from removing a child from
4        the jurisdiction of the court for more than 14 days;
5            (iii) enjoining a party from striking or
6        interfering with the personal liberty of the other
7        party or of any child; or
8            (iv) providing other injunctive relief proper in
9        the circumstances; or
10        (2.5) an allowance from the other party for a retainer
11    fee to obtain an attorney. The petition shall identify the
12    attorney to be retained and shall be accompanied by:
13            (i) a financial affidavit, supported by
14        documentary evidence;
15            (ii) an affidavit from the identified attorney
16        stating that the moving party has contacted the
17        attorney and agreed to retain the attorney and that
18        the attorney has agreed to enter an appearance if the
19        court grants the relief by the moving party; and
20            (iii) a certificate stating that if an allowance
21        is granted, the party shall use it only for retaining
22        the attorney.
23        The court shall review the financial affidavit and
24    attorney affidavit, and, if appropriate, grant an
25    allowance to the party for a retainer fee. All awards
26    under this paragraph shall be paid directly to the



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1    identified attorney; or
2        (3) other appropriate temporary relief including, in
3    the discretion of the court, ordering the purchase or sale
4    of assets and requiring that a party or parties borrow
5    funds in the appropriate circumstances.
6    Issues concerning temporary maintenance or temporary
7support of a child entitled to support shall be dealt with on a
8summary basis based on allocated parenting time, financial
9affidavits, tax returns, pay stubs, banking statements, and
10other relevant documentation, except an evidentiary hearing
11may be held upon a showing of good cause. If a party
12intentionally or recklessly files an inaccurate or misleading
13financial affidavit, the court shall impose significant
14penalties and sanctions including, but not limited to, costs
15and attorney's fees resulting from the improper
17    (b) The court may issue a temporary restraining order
18without requiring notice to the other party only if it finds,
19on the basis of the moving affidavit or other evidence, that
20irreparable injury will result to the moving party if no order
21is issued until the time for responding has elapsed.
22    (c) A response hereunder may be filed within 21 days after
23service of notice of motion or at the time specified in the
24temporary restraining order.
25    (c-1) As used in this subsection (c-1), "interim
26attorney's fees and costs" means attorney's fees and costs



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1assessed from time to time while a case is pending, in favor of
2the petitioning party's current counsel, for reasonable fees
3and costs either already incurred or to be incurred, and
4"interim award" means an award of interim attorney's fees and
5costs. Interim awards shall be governed by the following:
6        (1) Except for good cause shown, a proceeding for (or
7    relating to) interim attorney's fees and costs in a
8    pre-judgment dissolution proceeding shall be
9    nonevidentiary and summary in nature. All hearings for or
10    relating to interim attorney's fees and costs under this
11    subsection shall be scheduled expeditiously by the court.
12    When a party files a petition for interim attorney's fees
13    and costs supported by one or more affidavits that
14    delineate relevant factors, the court (or a hearing
15    officer) shall assess an interim award after affording the
16    opposing party a reasonable opportunity to file a
17    responsive pleading. A responsive pleading shall set out
18    the amount of each retainer or other payment or payments,
19    or both, previously paid to the responding party's counsel
20    by or on behalf of the responding party. A responsive
21    pleading shall include costs incurred, and shall indicate
22    whether the costs are paid or unpaid. In assessing an
23    interim award, the court shall consider all relevant
24    factors, as presented, that appear reasonable and
25    necessary, including to the extent applicable:
26            (A) the income and property of each party,



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1        including alleged marital property within the sole
2        control of one party and alleged non-marital property
3        within access to a party;
4            (B) the needs of each party;
5            (C) the realistic earning capacity of each party;
6            (D) any impairment to present earning capacity of
7        either party, including age and physical and emotional
8        health;
9            (E) the standard of living established during the
10        marriage;
11            (F) the degree of complexity of the issues,
12        including allocation of parental responsibility,
13        valuation or division (or both) of closely held
14        businesses, and tax planning, as well as reasonable
15        needs for expert investigations or expert witnesses,
16        or both;
17            (G) each party's access to relevant information;
18            (H) the amount of the payment or payments made or
19        reasonably expected to be made to the attorney for the
20        other party; and
21            (I) any other factor that the court expressly
22        finds to be just and equitable.
23        (2) Any assessment of an interim award (including one
24    pursuant to an agreed order) shall be without prejudice to
25    any final allocation and without prejudice as to any claim
26    or right of either party or any counsel of record at the



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1    time of the award. Any such claim or right may be presented
2    by the appropriate party or counsel at a hearing on
3    contribution under subsection (j) of Section 503 or a
4    hearing on counsel's fees under subsection (c) of Section
5    508. Unless otherwise ordered by the court at the final
6    hearing between the parties or in a hearing under
7    subsection (j) of Section 503 or subsection (c) of Section
8    508, interim awards, as well as the aggregate of all other
9    payments by each party to counsel and related payments to
10    third parties, shall be deemed to have been advances from
11    the parties' marital estate. Any portion of any interim
12    award constituting an overpayment shall be remitted back
13    to the appropriate party or parties, or, alternatively, to
14    successor counsel, as the court determines and directs,
15    after notice in a form designated by the Supreme Court. An
16    order for the award of interim attorney's fees shall be a
17    standardized form order and labeled "Interim Fee Award
18    Order".
19        (3) In any proceeding under this subsection (c-1), the
20    court (or hearing officer) shall assess an interim award
21    against an opposing party in an amount necessary to enable
22    the petitioning party to participate adequately in the
23    litigation, upon findings that the party from whom
24    attorney's fees and costs are sought has the financial
25    ability to pay reasonable amounts and that the party
26    seeking attorney's fees and costs lacks sufficient access



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1    to assets or income to pay reasonable amounts. In
2    determining an award, the court shall consider whether
3    adequate participation in the litigation requires
4    expenditure of more fees and costs for a party that is not
5    in control of assets or relevant information. Except for
6    good cause shown, an interim award shall not be less than
7    payments made or reasonably expected to be made to the
8    counsel for the other party. If the court finds that both
9    parties lack financial ability or access to assets or
10    income for reasonable attorney's fees and costs, the court
11    (or hearing officer) shall enter an order that allocates
12    available funds for each party's counsel, including
13    retainers or interim payments, or both, previously paid,
14    in a manner that achieves substantial parity between the
15    parties.
16        (4) The changes to this Section 501 made by this
17    amendatory Act of 1996 apply to cases pending on or after
18    June 1, 1997, except as otherwise provided in Section 508.
19    (c-2) Allocation of use of marital residence. Where there
20is on file a verified complaint or verified petition seeking
21temporary eviction from the marital residence, the court may,
22during the pendency of the proceeding, only in cases where the
23physical or mental well-being of either spouse or his or her
24children is jeopardized by occupancy of the marital residence
25by both spouses, and only upon due notice and full hearing,
26unless waived by the court on good cause shown, enter orders



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1granting the exclusive possession of the marital residence to
2either spouse, by eviction from, or restoration of, the
3marital residence, until the final determination of the cause
4pursuant to the factors listed in Section 602.7 of this Act. No
5such order shall in any manner affect any estate in homestead
6property of either party. In entering orders under this
7subsection (c-2), the court shall balance hardships to the
9    (d) A temporary order entered under this Section:
10        (1) does not prejudice the rights of the parties or
11    the child which are to be adjudicated at subsequent
12    hearings in the proceeding;
13        (2) may be revoked or modified before final judgment,
14    on a showing by affidavit and upon hearing; and
15        (3) terminates when the final judgment is entered or
16    when the petition for dissolution of marriage or legal
17    separation or declaration of invalidity of marriage is
18    dismissed.
19    (e) The fees or costs of mediation shall be borne by the
20parties and may be assessed by the court as it deems equitable
21without prejudice and are subject to reallocation at the
22conclusion of the case.
23    (f) Companion animals. Either party may petition or move
24for the temporary allocation of sole or joint possession of
25and responsibility for a companion animal jointly owned by the
26parties. In issuing an order under this subsection, the court



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1shall take into consideration the well-being of the companion
2animal. As used in this Section, "companion animal" does not
3include a service animal as defined in Section 2.01c of the
4Humane Care for Animals Act.
5(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
6100-422, eff. 1-1-18.)