Rep. La Shawn K. Ford

Filed: 4/12/2013

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2330

2    AMENDMENT NO. ______. Amend House Bill 2330, AS AMENDED, by
3replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Illinois Public Aid Code is amended by
6adding Section 10-12.5 as follows:
 
7    (305 ILCS 5/10-12.5 new)
8    Sec. 10-12.5. Suspension of child support during a period
9of incarceration.
10    (a) Unless otherwise agreed by the parties in a written
11agreement set forth in a court or administrative order for
12support or unless the custodial parent objects to the
13suspension of the child support obligation within 60 days of
14receiving notice regarding the suspension, an obligation to pay
15child support is suspended by operation of law during any
16period of time in which the person owing a duty of support is

 

 

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1committed to the custody of the Department of Corrections or
2the Department of Juvenile Justice. If the custodial parent
3objects, the child support obligation shall not be suspended
4and if the non-custodial parent wishes to obtain a
5modification, he or she must petition for a modification of
6support in accordance with Section 510 of the Illinois Marriage
7and Dissolution of Marriage Act. The Department shall provide,
8by rule, for notice to the custodial parent describing the
9custodial parent's rights regarding a prospective modification
10in accordance with Section 510 of the Illinois Marriage and
11Dissolution of Marriage Act.
12    (b) Any period of incarceration of a parent obligated to
13pay child support shall not be considered a period of voluntary
14unemployment. In the case of an incarcerated parent obligated
15to pay child support greater than $0 whose period of
16incarceration is greater than one year and whose period of
17incarceration begins on or after July 1, 2013, the Department
18shall:
19        (1) temporarily suspend any support obligation of the
20    parent and the enforcement of any support obligation of the
21    parent existing prior to the period of incarceration; and
22        (2) temporarily prohibit the accrual of any interest on
23    any support obligation of the parent existing prior to the
24    period of incarceration during such period.
25    The temporary suspension of the child support obligation
26and of the accrual of interest on any support obligation of the

 

 

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1parent existing prior to the period of incarceration shall end
2and both support and accrual of interest on any pre-existing
3unpaid obligation shall resume upon the first charging period
4to occur after the obligated parent's release from
5incarceration. Unless the terms of the support obligation have
6been otherwise modified, the support terms shall resume at the
7same level as prior to the temporary suspension.
8    (c) Provided the Department is advised or given notice of
9the obligated parent's incarceration for a period to exceed one
10year beginning after July 1, 2013, the Department, for cases
11enrolled in the Child Support Enforcement Program established
12by Title IV-D of the Social Security Act, or the noncustodial
13parent or his or her representative in all other cases, shall
14provide both parties with:
15        (1) notice of any suspension of review, adjustment, or
16    enforcement of a support obligation and of any prohibition
17    on interest accrual on such obligation that is imposed in
18    accordance with paragraphs (1) and (2) of subsection (b);
19    and
20        (2) an opportunity to request that the suspension or
21    prohibition be terminated or modified on the basis that the
22    noncustodial parent has sufficient income or resources to
23    continue payment of the support obligation during the
24    noncustodial parent's period of incarceration.
25    (d) The Department shall not be liable for failing to act
26upon the provisions established under paragraphs (1) and (2) of

 

 

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1subsection (a) if the Department has not been advised of the
2obligated parent's incarceration or if the Department has in
3place proper procedures for considering an obligated parent's
4incarceration when setting and modifying child support
5obligations and follows those procedures routinely.
 
6    Section 10. The Illinois Marriage and Dissolution of
7Marriage Act is amended by changing Section 510 as follows:
 
8    (750 ILCS 5/510)  (from Ch. 40, par. 510)
9    Sec. 510. Modification and termination of provisions for
10maintenance, support, educational expenses, and property
11disposition.
12    (a) Except as otherwise provided in paragraph (f) of
13Section 502 and in subsection (b), clause (3) of Section 505.2,
14the provisions of any judgment respecting maintenance or
15support may be modified only as to installments accruing
16subsequent to due notice by the moving party of the filing of
17the motion for modification. An order for child support may be
18modified as follows:
19        (1) upon a showing of a substantial change in
20    circumstances, including incarceration prior to July 1,
21    2013 or for a period of incarceration of less than one
22    year; and
23        (2) without the necessity of showing a substantial
24    change in circumstances, as follows:

 

 

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1            (A) upon a showing of an inconsistency of at least
2        20%, but no less than $10 per month, between the amount
3        of the existing order and the amount of child support
4        that results from application of the guidelines
5        specified in Section 505 of this Act unless the
6        inconsistency is due to the fact that the amount of the
7        existing order resulted from a deviation from the
8        guideline amount and there has not been a change in the
9        circumstances that resulted in that deviation; or
10            (B) upon a showing of a need to provide for the
11        health care needs of the child under the order through
12        health insurance or other means. In no event shall the
13        eligibility for or receipt of medical assistance be
14        considered to meet the need to provide for the child's
15        health care needs.
16    The provisions of subparagraph (a)(2)(A) shall apply only
17in cases in which a party is receiving child support
18enforcement services from the Department of Healthcare and
19Family Services under Article X of the Illinois Public Aid
20Code, and only when at least 36 months have elapsed since the
21order for child support was entered or last modified.
22    (a-5) An order for maintenance may be modified or
23terminated only upon a showing of a substantial change in
24circumstances. In all such proceedings, as well as in
25proceedings in which maintenance is being reviewed, the court
26shall consider the applicable factors set forth in subsection

 

 

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1(a) of Section 504 and the following factors:
2        (1) any change in the employment status of either party
3    and whether the change has been made in good faith;
4        (2) the efforts, if any, made by the party receiving
5    maintenance to become self-supporting, and the
6    reasonableness of the efforts where they are appropriate;
7        (3) any impairment of the present and future earning
8    capacity of either party;
9        (4) the tax consequences of the maintenance payments
10    upon the respective economic circumstances of the parties;
11        (5) the duration of the maintenance payments
12    previously paid (and remaining to be paid) relative to the
13    length of the marriage;
14        (6) the property, including retirement benefits,
15    awarded to each party under the judgment of dissolution of
16    marriage, judgment of legal separation, or judgment of
17    declaration of invalidity of marriage and the present
18    status of the property;
19        (7) the increase or decrease in each party's income
20    since the prior judgment or order from which a review,
21    modification, or termination is being sought;
22        (8) the property acquired and currently owned by each
23    party after the entry of the judgment of dissolution of
24    marriage, judgment of legal separation, or judgment of
25    declaration of invalidity of marriage; and
26        (9) any other factor that the court expressly finds to

 

 

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1    be just and equitable.
2    (b) The provisions as to property disposition may not be
3revoked or modified, unless the court finds the existence of
4conditions that justify the reopening of a judgment under the
5laws of this State.
6    (c) Unless otherwise agreed by the parties in a written
7agreement set forth in the judgment or otherwise approved by
8the court, the obligation to pay future maintenance is
9terminated upon the death of either party, or the remarriage of
10the party receiving maintenance, or if the party receiving
11maintenance cohabits with another person on a resident,
12continuing conjugal basis. Any obligation of a payor party for
13premium payments respecting insurance on such party's life
14imposed under subsection (f) of Section 504 is also terminated
15on the occurrence of any of the foregoing events, unless
16otherwise agreed by the parties. Any termination of an
17obligation for maintenance as a result of the death of the
18payor party, however, shall be inapplicable to any right of the
19other party or such other party's designee to receive a death
20benefit under such insurance on the payor party's life.
21    (d) Unless otherwise provided in this Act, or as agreed in
22writing or expressly provided in the judgment, provisions for
23the support of a child are terminated by emancipation of the
24child, or if the child has attained the age of 18 and is still
25attending high school, provisions for the support of the child
26are terminated upon the date that the child graduates from high

 

 

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1school or the date the child attains the age of 19, whichever
2is earlier, but not by the death of a parent obligated to
3support or educate the child. An existing obligation to pay for
4support or educational expenses, or both, is not terminated by
5the death of a parent. When a parent obligated to pay support
6or educational expenses, or both, dies, the amount of support
7or educational expenses, or both, may be enforced, modified,
8revoked or commuted to a lump sum payment, as equity may
9require, and that determination may be provided for at the time
10of the dissolution of the marriage or thereafter.
11    (d-5) Unless otherwise agreed by the parties in a written
12agreement set forth in the judgment or otherwise approved by
13the court or unless the custodial parent objects to the
14suspension of the child support obligation within 60 days of
15receiving notice regarding the suspension, an obligation to pay
16child support is suspended by operation of law during any
17period of time in which the person owing a duty of support is
18committed to the custody of the Department of Corrections or
19the Department of Juvenile Justice. If the custodial parent
20objects, the child support obligation shall not be suspended
21and if the non-custodial parent wishes to obtain a
22modification, he or she must petition for a modification of
23support in accordance with this Section. The Department shall
24provide, by rule, for notice to the custodial parent describing
25the custodial parent's rights regarding a prospective
26modification in accordance with this Section.

 

 

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1    (d-6) The State shall not consider any period of
2incarceration of such parent as a period of voluntary
3unemployment that disqualifies the parent from obtaining a
4modification of the support obligation consistent with the
5parent's ability to pay child support. In the case of an
6incarcerated parent the State shall:
7        (1) temporarily suspend any support obligation of the
8    parent and the enforcement of any support obligation of the
9    parent existing prior to the period of incarceration; and
10        (2) temporarily prohibit the accrual of any interest on
11    any support obligation of the parent existing prior to the
12    period of incarceration during such period.
13    (d-7) The Department of Healthcare and Family Services, for
14cases enrolled in the Child Support Enforcement Program
15established by Title IV-D of the Social Security Act, or the
16noncustodial parent or his or her representative in all other
17cases, shall provide a custodial parent with:
18        (1) notice of any suspension of review, adjustment, or
19    enforcement of a support obligation and notice of any
20    prohibition on the accrual of interest on the support
21    obligation that is imposed in accordance with paragraphs
22    (1) and (2) of subsection (d-6); and
23        (2) an opportunity to request that the suspension or
24    prohibition be terminated or modified on the basis that the
25    noncustodial parent has sufficient income or resources to
26    continue payment of the support obligation during the

 

 

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1    noncustodial parent's period of incarceration.
2    (e) The right to petition for support or educational
3expenses, or both, under Sections 505 and 513 is not
4extinguished by the death of a parent. Upon a petition filed
5before or after a parent's death, the court may award sums of
6money out of the decedent's estate for the child's support or
7educational expenses, or both, as equity may require. The time
8within which a claim may be filed against the estate of a
9decedent under Sections 505 and 513 and subsection (d) and this
10subsection shall be governed by the provisions of the Probate
11Act of 1975, as a barrable, noncontingent claim.
12    (f) A petition to modify or terminate child support,
13custody, or visitation shall not delay any child support
14enforcement litigation or supplementary proceeding on behalf
15of the obligee, including, but not limited to, a petition for a
16rule to show cause, for non-wage garnishment, or for a
17restraining order.
18    (g) The Department of Healthcare and Family Services and
19the Department of Corrections shall share relevant data and
20collaborate on the facilitation of identification of
21incarcerated parents eligible for either temporary suspension
22of a child support obligation or modification of a child
23support obligation and shall provide relevant information and
24assistance to incarcerated parents eligible for modification
25of support.
26    (h) The crime for which the incarcerated parents was

 

 

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1convicted, or the prosecution of the incarcerated parent for
2that crime by a legal representative of the Department of
3Healthcare and Family Services for cases enrolled in the Child
4Support Enforcement Program established by Title IV-D of the
5Social Security Act, shall not disqualify the incarcerated
6parent from consideration of modification of a child support
7obligation, nor shall the action of the Department's legal
8representative to bring forth the modification request for
9consideration be considered a conflict of interest for the
10prosecuting office, except in cases where the crime was
11committed to avoid a child support obligation or was committed
12against a child of the obligated parent or the other parent.
13(Source: P.A. 97-608, eff. 1-1-12.)".