093_HB3193

 
                                     LRB093 07153 LCB 07308 b

 1        AN ACT concerning family law.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  5.   The  Illinois  Marriage  and Dissolution of
 5    Marriage Act is amended by changing Section 505 as follows:

 6        (750 ILCS 5/505) (from Ch. 40, par. 505)
 7        Sec. 505.  Child support; contempt; penalties.
 8        (a)  In a proceeding for dissolution of  marriage,  legal
 9    separation,   declaration   of   invalidity  of  marriage,  a
10    proceeding for child support  following  dissolution  of  the
11    marriage  by  a court which lacked personal jurisdiction over
12    the  absent  spouse,  a  proceeding  for  modification  of  a
13    previous order for child support under Section  510  of  this
14    Act, or any proceeding authorized under Section 501 or 601 of
15    this  Act, the court may order either or both parents owing a
16    duty of support to a child of the marriage to pay  an  amount
17    reasonable  and  necessary for his support, without regard to
18    marital misconduct. The duty of  support   owed  to  a  child
19    includes  the  obligation  to  provide for the reasonable and
20    necessary physical, mental and emotional health needs of  the
21    child.  For  purposes of this Section, the term "child" shall
22    include any child under age 18 and any child under age 19 who
23    is still attending high school.
24             (1)  The Court shall determine the minimum amount of
25        support by using the following guidelines:
26          Number of Children       Percent of Supporting Party's
27                                             Net Income
28                  1                             20%
29                  2                             25%
30                  3                             32%
31                  4                             40%
 
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 1                  5                             45%
 2              6 or more                         50%
 3             (2)  The above guidelines shall be applied  in  each
 4        case unless the court makes a finding that application of
 5        the  guidelines would be inappropriate, after considering
 6        the best interests of the  child  in  light  of  evidence
 7        including but not limited to one or more of the following
 8        relevant factors:
 9                  (a)  the  financial  resources and needs of the
10             child;
11                  (b)  the financial resources and needs  of  the
12             custodial parent;
13                  (c)  the  standard  of  living  the child would
14             have enjoyed had the marriage not been dissolved;
15                  (d)  the physical and  emotional  condition  of
16             the child, and his educational needs; and
17                  (e)  the  financial  resources and needs of the
18             non-custodial parent.
19             If the  court  deviates  from  the  guidelines,  the
20        court's  finding  shall  state the amount of support that
21        would  have  been  required  under  the  guidelines,   if
22        determinable.   The  court  shall  include  the reason or
23        reasons for the variance from the guidelines.
24             (3)  "Net income" is defined as  the  total  of  all
25        income from all sources, minus the following deductions:
26                  (a)  Federal  income  tax  (properly calculated
27             withholding or estimated payments);
28                  (b)  State  income  tax  (properly   calculated
29             withholding or estimated payments);
30                  (c)  Social Security (FICA payments);
31                  (d)  Mandatory     retirement     contributions
32             required by law or as a condition of employment;
33                  (e)  Union dues;
34                  (f)  Dependent          and          individual
 
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 1             health/hospitalization insurance premiums;
 2                  (g)  Prior    obligations    of    support   or
 3             maintenance actually paid pursuant to a court order;
 4                  (h)  Expenditures for repayment of  debts  that
 5             represent  reasonable and necessary expenses for the
 6             production of income, medical expenditures necessary
 7             to preserve life or health, reasonable  expenditures
 8             for  the  benefit of the child and the other parent,
 9             exclusive of gifts.   The  court  shall  reduce  net
10             income  in determining the minimum amount of support
11             to be ordered only for the period that such payments
12             are  due  and  shall  enter  an   order   containing
13             provisions  for its self-executing modification upon
14             termination of such payment period;.
15                  (i)  Amounts  properly  deducted  for   federal
16             income  tax  purposes  including  but not limited to
17             depreciation of farm machinery and equipment.
18             (4)  In cases where the  court  order  provides  for
19        health/hospitalization  insurance  coverage  pursuant  to
20        Section   505.2  of  this  Act,  the  premiums  for  that
21        insurance, or that portion of the premiums for which  the
22        supporting  party is responsible in the case of insurance
23        provided through  an  employer's  health  insurance  plan
24        where  the employer pays a portion of the premiums, shall
25        be subtracted from net income in determining the  minimum
26        amount of support to be ordered.
27             (4.5)  In  a  proceeding for child support following
28        dissolution of  the  marriage  by  a  court  that  lacked
29        personal  jurisdiction  over  the  absent  spouse, and in
30        which the court is requiring payment of support  for  the
31        period  before  the  date an order for current support is
32        entered, there  is  a  rebuttable  presumption  that  the
33        supporting  party's  net  income for the prior period was
34        the same as his or her net income at the time  the  order
 
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 1        for current support is entered.
 2             (5)  If  the net income cannot be determined because
 3        of default or any other reason,  the  court  shall  order
 4        support   in  an  amount  considered  reasonable  in  the
 5        particular case.  The final  order  in  all  cases  shall
 6        state  the  support  level in dollar amounts. However, if
 7        the court finds that the child support amount  cannot  be
 8        expressed exclusively as a dollar amount because all or a
 9        portion  of  the  payor's  net  income is uncertain as to
10        source, time of payment, or amount, the court may order a
11        percentage amount of support in addition  to  a  specific
12        dollar  amount  and  enter  such  other  orders as may be
13        necessary to determine and enforce, on  a  timely  basis,
14        the applicable support ordered.
15             (6)  If  (i)  the  non-custodial parent was properly
16        served  with  a  request  for  discovery   of   financial
17        information   relating   to  the  non-custodial  parent's
18        ability to provide child support, (ii) the  non-custodial
19        parent  failed to comply with the request, despite having
20        been ordered to  do  so  by  the  court,  and  (iii)  the
21        non-custodial  parent  is  not  present at the hearing to
22        determine support despite having received proper  notice,
23        then  any  relevant  financial information concerning the
24        non-custodial parent's ability to provide  child  support
25        that  was obtained pursuant to subpoena and proper notice
26        shall be admitted  into  evidence  without  the  need  to
27        establish any further foundation for its admission.
28        (a-5)  In an action to enforce an order for support based
29    on  the  respondent's  failure  to  make  support payments as
30    required by the order, notice  of  proceedings  to  hold  the
31    respondent  in contempt for that failure may be served on the
32    respondent by personal service or by regular  mail  addressed
33    to the respondent's last known address. The respondent's last
34    known  address may be determined from records of the clerk of
 
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 1    the court, from the Federal Case Registry  of  Child  Support
 2    Orders, or by any other reasonable means.
 3        (b)  Failure  of either parent to comply with an order to
 4    pay  support  shall  be  punishable  as  in  other  cases  of
 5    contempt.  In addition to other penalties provided by law the
 6    Court may, after finding the parent guilty of contempt, order
 7    that the parent be:
 8             (1)  placed on probation  with  such  conditions  of
 9        probation as the Court deems advisable;
10             (2)  sentenced to periodic imprisonment for a period
11        not to exceed 6 months; provided, however, that the Court
12        may  permit the parent to be released for periods of time
13        during the day or night to:
14                  (A)  work; or
15                  (B)  conduct a business or other  self-employed
16             occupation.
17        The  Court  may  further  order  any  part  or all of the
18    earnings  of  a  parent  during  a   sentence   of   periodic
19    imprisonment paid to the Clerk of the Circuit Court or to the
20    parent  having  custody  or to the guardian having custody of
21    the children of the sentenced parent for the support of  said
22    children until further order of the Court.
23        If  there is a unity of interest and ownership sufficient
24    to render no financial  separation  between  a  non-custodial
25    parent  and another person or persons or business entity, the
26    court may pierce the ownership veil of the  person,  persons,
27    or  business  entity  to discover assets of the non-custodial
28    parent held in the name of that  person,  those  persons,  or
29    that  business  entity.    The  following  circumstances  are
30    sufficient  to  authorize  a  court to order discovery of the
31    assets of a person, persons, or business entity and to compel
32    the application of any discovered assets  toward  payment  on
33    the judgment for support:
34             (1)  the   non-custodial   parent  and  the  person,
 
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 1        persons, or business entity maintain records together.
 2             (2)  the  non-custodial  parent  and   the   person,
 3        persons,  or  business  entity  fail  to maintain an arms
 4        length relationship between themselves with regard to any
 5        assets.
 6             (3)  the non-custodial parent  transfers  assets  to
 7        the  person,  persons, or business entity with the intent
 8        to perpetrate a fraud on the custodial parent.
 9        With respect to assets which are real property, no  order
10    entered  under this paragraph shall affect the rights of bona
11    fide purchasers, mortgagees,  judgment  creditors,  or  other
12    lien  holders  who   acquire  their interests in the property
13    prior to the time a notice of lis  pendens  pursuant  to  the
14    Code  of  Civil Procedure or a copy of the order is placed of
15    record in the office of the recorder of deeds for the  county
16    in which the real property is located.
17        The  court may also order in cases where the parent is 90
18    days or more delinquent in payment of  support  or  has  been
19    adjudicated  in  arrears  in  an  amount  equal  to  90  days
20    obligation  or  more,  that  the  parent's  Illinois  driving
21    privileges  be  suspended until the court determines that the
22    parent is in compliance with the order of support.  The court
23    may also order that the parent be issued a  family  financial
24    responsibility   driving  permit  that  would  allow  limited
25    driving privileges for employment  and  medical  purposes  in
26    accordance with Section 7-702.1 of the Illinois Vehicle Code.
27    The  clerk  of  the  circuit  court  shall  certify the order
28    suspending the driving privileges of the parent  or  granting
29    the  issuance  of  a  family financial responsibility driving
30    permit to the Secretary of State on forms prescribed  by  the
31    Secretary.   Upon receipt of the authenticated documents, the
32    Secretary  of  State  shall  suspend  the  parent's   driving
33    privileges  until  further  order  of the court and shall, if
34    ordered by the court, subject to the  provisions  of  Section
 
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 1    7-702.1   of  the  Illinois  Vehicle  Code,  issue  a  family
 2    financial responsibility driving permit to the parent.
 3        In addition to the penalties or punishment  that  may  be
 4    imposed   under   this  Section,  any  person  whose  conduct
 5    constitutes a violation of  Section  15  of  the  Non-Support
 6    Punishment Act may be prosecuted under that Act, and a person
 7    convicted  under that Act may be sentenced in accordance with
 8    that Act.  The sentence may include but need not  be  limited
 9    to  a  requirement  that the person perform community service
10    under Section 50  of  that  Act  or  participate  in  a  work
11    alternative  program  under Section 50 of that Act.  A person
12    may not be required to  participate  in  a  work  alternative
13    program  under  Section  50  of  that  Act  if  the person is
14    currently participating in a work program pursuant to Section
15    505.1 of this Act.
16        A  support  obligation,  or  any  portion  of  a  support
17    obligation, which becomes due and remains unpaid for 30  days
18    or  more  shall  accrue simple interest at the rate of 9% per
19    annum. An order for support entered or modified on  or  after
20    January  1,  2002  shall  contain  a statement that a support
21    obligation required under the order,  or  any  portion  of  a
22    support obligation required under the order, that becomes due
23    and  remains  unpaid  for 30 days or more shall accrue simple
24    interest at the rate of 9% per annum.  Failure to include the
25    statement in the  order  for  support  does  not  affect  the
26    validity  of the order or the accrual of interest as provided
27    in this Section.
28        (c)  A one-time charge  of  20%  is  imposable  upon  the
29    amount  of  past-due child support owed on July 1, 1988 which
30    has accrued under a support order entered by the court.   The
31    charge  shall be imposed in accordance with the provisions of
32    Section 10-21 of the Illinois Public Aid Code  and  shall  be
33    enforced by the court upon petition.
34        (d)  Any  new  or  existing  support order entered by the
 
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 1    court under this Section shall be deemed to be  a  series  of
 2    judgments   against  the  person  obligated  to  pay  support
 3    thereunder, each such judgment to be in the  amount  of  each
 4    payment  or  installment of support and each such judgment to
 5    be deemed entered as of the date the corresponding payment or
 6    installment becomes due under the terms of the support order.
 7    Each such judgment shall have  the  full  force,  effect  and
 8    attributes of any other judgment of this State, including the
 9    ability  to  be  enforced.  A lien arises by operation of law
10    against the real and personal property  of  the  noncustodial
11    parent  for  each  installment of overdue support owed by the
12    noncustodial parent.
13        (e)  When child support is to be paid through  the  clerk
14    of  the  court  in a county of 1,000,000 inhabitants or less,
15    the order shall direct the obligor to pay to  the  clerk,  in
16    addition  to  the child support payments, all fees imposed by
17    the county board under paragraph (3)  of  subsection  (u)  of
18    Section  27.1  of  the  Clerks of Courts Act.  Unless paid in
19    cash or pursuant to an order for withholding, the payment  of
20    the  fee  shall  be by a separate instrument from the support
21    payment and shall be made to the order of the Clerk.
22        (f)  All orders for support, when  entered  or  modified,
23    shall include a provision requiring the obligor to notify the
24    court  and,  in cases in which a party is receiving child and
25    spouse services under Article X of the  Illinois  Public  Aid
26    Code,  the  Illinois Department of Public Aid, within 7 days,
27    (i) of the name and  address  of  any  new  employer  of  the
28    obligor,  (ii)  whether  the  obligor  has  access  to health
29    insurance  coverage  through  the  employer  or  other  group
30    coverage and, if so, the policy name and number and the names
31    of persons covered under the policy, and  (iii)  of  any  new
32    residential  or  mailing  address  or telephone number of the
33    non-custodial parent.  In any subsequent action to enforce  a
34    support  order,  upon  a  sufficient  showing that a diligent
 
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 1    effort has  been  made  to  ascertain  the  location  of  the
 2    non-custodial  parent,  service  of  process  or provision of
 3    notice necessary in the case may be made at  the  last  known
 4    address  of  the non-custodial parent in any manner expressly
 5    provided by the Code of Civil Procedure or  this  Act,  which
 6    service shall be sufficient for purposes of due process.
 7        (g)  An  order  for support shall include a date on which
 8    the current support obligation terminates.   The  termination
 9    date  shall  be  no  earlier than the date on which the child
10    covered by the order will attain the age of 18.  However,  if
11    the  child  will  not  graduate  from high school until after
12    attaining the age of 18, then the termination date  shall  be
13    no  earlier than the earlier of the date on which the child's
14    high school graduation will occur or the date  on  which  the
15    child will attain the age of 19.  The order for support shall
16    state  that  the  termination  date  does  not  apply  to any
17    arrearage that may remain unpaid on that  date.   Nothing  in
18    this  subsection shall be construed to prevent the court from
19    modifying the order or terminating the order in the event the
20    child is otherwise emancipated.
21        (h)  An order entered under this Section shall include  a
22    provision  requiring the obligor to report to the obligee and
23    to the clerk of court within 10 days each  time  the  obligor
24    obtains   new   employment,   and  each  time  the  obligor's
25    employment is terminated for any reason.  The report shall be
26    in writing and shall, in the case of new employment,  include
27    the  name and address of the new employer.  Failure to report
28    new employment or the termination of current  employment,  if
29    coupled  with nonpayment of support for a period in excess of
30    60 days, is indirect  criminal  contempt.   For  any  obligor
31    arrested  for  failure to report new employment bond shall be
32    set in the amount of the child support that should have  been
33    paid  during  the  period of unreported employment.  An order
34    entered under this Section shall  also  include  a  provision
 
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 1    requiring  the  obligor  and  obligee  parents to advise each
 2    other of a change in residence within 5 days  of  the  change
 3    except  when  the  court  finds that the physical, mental, or
 4    emotional health of a party or that  of  a  child,  or  both,
 5    would  be  seriously  endangered by disclosure of the party's
 6    address.
 7        (i)  The court does not  lose  the  powers  of  contempt,
 8    driver's   license   suspension,   or   other  child  support
 9    enforcement  mechanisms,  including,  but  not  limited   to,
10    criminal  prosecution  as  set  forth  in  this Act, upon the
11    emancipation of the minor child or children.
12    (Source: P.A. 91-113,  eff.  7-15-99;  91-397,  eff.  1-1-00;
13    91-655,   eff.  6-1-00;  91-767,  eff.  6-9-00;  92-16,  eff.
14    6-28-01; 92-203, eff. 8-1-01; 92-374, eff.  8-15-01;  92-651,
15    eff. 7-11-02; 92-876, eff. 6-1-03.)