Rep. La Shawn K. Ford

Filed: 4/17/2013

 

 


 

 


 
09800HB2330ham003LRB098 10536 KTG 44805 a

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) During any period of time in which the person owing a
11duty of support is committed to the custody of the Department
12of Corrections or the Department of Juvenile Justice, an
13obligation to pay child support is suspended by operation of
14law, but not until 60 days after the custodial parent receives
15notice and an opportunity to request a termination or
16modification of the suspension of the support obligation in

 

 

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1accordance with subsection (c) of this Section. If the
2custodial parent requests that the suspension or prohibition of
3the support obligation be terminated or modified and the court
4terminates or modifies the suspension of the support
5obligation, or if the parties have otherwise agreed in a
6written agreement set forth in a court or administrative order
7for support, then the child support obligation shall not be
8suspended and if the non-custodial parent wishes to obtain a
9modification, he or she must petition for a modification of
10support in accordance with Section 510 of the Illinois Marriage
11and Dissolution of Marriage Act. The Department may provide, by
12rule, for notice to the custodial parent describing the
13custodial parent's rights regarding a prospective modification
14in accordance with Section 510 of the Illinois Marriage and
15Dissolution of Marriage Act.
16    If a non-custodial parent receives a settlement, claim,
17inheritance, lottery prize award, or other lump sum or periodic
18income of $500 or more a month or $5,000 or more as a one-time
19lump sum, during a period in which his or her child support
20obligation is suspended pursuant to this Code, the
21non-custodial parent shall notify the custodial parent, and in
22IV-D cases also notify the Department, within 7 days of
23receiving or becoming aware that he or she is entitled to
24receive this income. If the custodial parent wishes to obtain a
25modification based on this income, he or she must petition for
26a modification of support in accordance with Section 510 of the

 

 

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1Illinois Marriage and Dissolution of Marriage Act.
2    (b) Any period of incarceration of a parent obligated to
3pay child support shall not be considered a period of voluntary
4unemployment. In the case of an incarcerated parent obligated
5to pay child support greater than $0 whose period of
6incarceration is greater than one year and whose period of
7incarceration begins on or after July 1, 2014, the Department
8shall:
9        (1) temporarily suspend any support obligation of the
10    parent and the enforcement of any support obligation of the
11    parent existing prior to the period of incarceration; and
12        (2) temporarily prohibit the accrual of any interest on
13    any support obligation of the parent existing prior to the
14    period of incarceration during such period.
15    The temporary suspension of the child support obligation
16and of the accrual of interest on any support obligation of the
17parent existing prior to the period of incarceration shall end
18and both support and accrual of interest on any pre-existing
19unpaid obligation shall resume upon the first charging period
20to occur after the obligated parent's release from
21incarceration. Unless the terms of the support obligation have
22been otherwise modified, the support terms shall resume at the
23same level as prior to the temporary suspension.
24    (c) Provided the Department is advised or given notice of
25the obligated parent's incarceration for a period to exceed one
26year beginning after July 1, 2014, the Department, for cases

 

 

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1enrolled in the Child Support Enforcement Program established
2by Title IV-D of the Social Security Act, or the noncustodial
3parent or his or her representative in all other cases, shall
4provide both parties with:
5        (1) notice of any suspension or review, adjustment, or
6    enforcement of a support obligation and of any prohibition
7    on interest accrual on such obligation that is imposed in
8    accordance with paragraphs (1) and (2) of subsection (b);
9    and
10        (2) an opportunity to request that the suspension or
11    prohibition be terminated or modified on the basis that the
12    noncustodial parent has sufficient income or resources to
13    continue payment of the support obligation during the
14    noncustodial parent's period of incarceration.
15    (d) The Department shall not be liable for failing to act
16upon the provisions established under paragraphs (1) and (2) of
17subsection (b) if the Department has not been advised of the
18obligated parent's incarceration or if the Department has in
19place proper procedures for considering an obligated parent's
20incarceration when setting and modifying child support
21obligations and follows those procedures routinely.
 
22    Section 10. The Illinois Marriage and Dissolution of
23Marriage Act is amended by changing Section 510 as follows:
 
24    (750 ILCS 5/510)  (from Ch. 40, par. 510)

 

 

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1    Sec. 510. Modification and termination of provisions for
2maintenance, support, educational expenses, and property
3disposition.
4    (a) Except as otherwise provided in paragraph (f) of
5Section 502 and in subsection (b), clause (3) of Section 505.2,
6the provisions of any judgment respecting maintenance or
7support may be modified only as to installments accruing
8subsequent to due notice by the moving party of the filing of
9the motion for modification. An order for child support may be
10modified as follows:
11        (1) upon a showing of a substantial change in
12    circumstances, including incarceration prior to July 1,
13    2014 or for a period of incarceration of less than one
14    year; and
15        (2) without the necessity of showing a substantial
16    change in circumstances, as follows:
17            (A) upon a showing of an inconsistency of at least
18        20%, but no less than $10 per month, between the amount
19        of the existing order and the amount of child support
20        that results from application of the guidelines
21        specified in Section 505 of this Act unless the
22        inconsistency is due to the fact that the amount of the
23        existing order resulted from a deviation from the
24        guideline amount and there has not been a change in the
25        circumstances that resulted in that deviation; or
26            (B) upon a showing of a need to provide for the

 

 

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1        health care needs of the child under the order through
2        health insurance or other means. In no event shall the
3        eligibility for or receipt of medical assistance be
4        considered to meet the need to provide for the child's
5        health care needs.
6    The provisions of subparagraph (a)(2)(A) shall apply only
7in cases in which a party is receiving child support
8enforcement services from the Department of Healthcare and
9Family Services under Article X of the Illinois Public Aid
10Code, and only when at least 36 months have elapsed since the
11order for child support was entered or last modified.
12    (a-5) An order for maintenance may be modified or
13terminated only upon a showing of a substantial change in
14circumstances. In all such proceedings, as well as in
15proceedings in which maintenance is being reviewed, the court
16shall consider the applicable factors set forth in subsection
17(a) of Section 504 and the following factors:
18        (1) any change in the employment status of either party
19    and whether the change has been made in good faith;
20        (2) the efforts, if any, made by the party receiving
21    maintenance to become self-supporting, and the
22    reasonableness of the efforts where they are appropriate;
23        (3) any impairment of the present and future earning
24    capacity of either party;
25        (4) the tax consequences of the maintenance payments
26    upon the respective economic circumstances of the parties;

 

 

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1        (5) the duration of the maintenance payments
2    previously paid (and remaining to be paid) relative to the
3    length of the marriage;
4        (6) the property, including retirement benefits,
5    awarded to each party under the judgment of dissolution of
6    marriage, judgment of legal separation, or judgment of
7    declaration of invalidity of marriage and the present
8    status of the property;
9        (7) the increase or decrease in each party's income
10    since the prior judgment or order from which a review,
11    modification, or termination is being sought;
12        (8) the property acquired and currently owned by each
13    party after the entry of the judgment of dissolution of
14    marriage, judgment of legal separation, or judgment of
15    declaration of invalidity of marriage; and
16        (9) any other factor that the court expressly finds to
17    be just and equitable.
18    (b) The provisions as to property disposition may not be
19revoked or modified, unless the court finds the existence of
20conditions that justify the reopening of a judgment under the
21laws of this State.
22    (c) Unless otherwise agreed by the parties in a written
23agreement set forth in the judgment or otherwise approved by
24the court, the obligation to pay future maintenance is
25terminated upon the death of either party, or the remarriage of
26the party receiving maintenance, or if the party receiving

 

 

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1maintenance cohabits with another person on a resident,
2continuing conjugal basis. Any obligation of a payor party for
3premium payments respecting insurance on such party's life
4imposed under subsection (f) of Section 504 is also terminated
5on the occurrence of any of the foregoing events, unless
6otherwise agreed by the parties. Any termination of an
7obligation for maintenance as a result of the death of the
8payor party, however, shall be inapplicable to any right of the
9other party or such other party's designee to receive a death
10benefit under such insurance on the payor party's life.
11    (d) Unless otherwise provided in this Act, or as agreed in
12writing or expressly provided in the judgment, provisions for
13the support of a child are terminated by emancipation of the
14child, or if the child has attained the age of 18 and is still
15attending high school, provisions for the support of the child
16are terminated upon the date that the child graduates from high
17school or the date the child attains the age of 19, whichever
18is earlier, but not by the death of a parent obligated to
19support or educate the child. An existing obligation to pay for
20support or educational expenses, or both, is not terminated by
21the death of a parent. When a parent obligated to pay support
22or educational expenses, or both, dies, the amount of support
23or educational expenses, or both, may be enforced, modified,
24revoked or commuted to a lump sum payment, as equity may
25require, and that determination may be provided for at the time
26of the dissolution of the marriage or thereafter.

 

 

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1    (d-5) During any period of time in which the person owing a
2duty of support is committed to the custody of the Department
3of Corrections or the Department of Juvenile Justice, an
4obligation to pay child support is suspended by operation of
5law, but not until 60 days after the custodial parent receives
6notice and an opportunity to request a termination or
7modification of the suspension of the support obligation in
8accordance with subsection (d-7) of this Section. If the
9custodial parent requests that the suspension or prohibition of
10the support obligation be terminated or modified and the court
11terminates or modifies the suspension of the support
12obligation, or if the parties have otherwise agreed in a
13written agreement set forth in the judgment or otherwise
14approved by the court, then the child support obligation shall
15not be suspended and if the non-custodial parent wishes to
16obtain a modification, he or she must petition for a
17modification of support in accordance with this Section. The
18Department of Healthcare and Family Services may provide, by
19rule, for notice to the custodial parent describing the
20custodial parent's rights regarding a prospective modification
21in accordance with this Section.
22    If a non-custodial parent receives a settlement, claim,
23inheritance, lottery prize award, or other lump sum or periodic
24income of $500 or more a month or $5,000 or more as a one-time
25lump sum, during a period in which his or her child support
26obligation is suspended pursuant to Section 10-12.5 of the

 

 

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1Illinois Public Aid Code, the non-custodial parent shall notify
2the custodial parent, and in IV-D cases also notify the
3Department of Healthcare and Family Services, within 7 days of
4receiving or becoming aware that he or she is entitled to
5receive this income. If the custodial parent wishes to obtain a
6modification based on this income, he or she must petition for
7a modification of support in accordance with this Section.
8    (d-6) The State shall not consider any period of
9incarceration of such parent as a period of voluntary
10unemployment that disqualifies the parent from obtaining a
11modification of the support obligation consistent with the
12parent's ability to pay child support. In the case of an
13incarcerated parent the State shall:
14        (1) temporarily suspend any support obligation of the
15    parent and the enforcement of any support obligation of the
16    parent existing prior to the period of incarceration; and
17        (2) temporarily prohibit the accrual of any interest on
18    any support obligation of the parent existing prior to the
19    period of incarceration during such period.
20    (d-7) The Department of Healthcare and Family Services, for
21cases enrolled in the Child Support Enforcement Program
22established by Title IV-D of the Social Security Act, or the
23noncustodial parent or his or her representative in all other
24cases, shall provide a custodial parent with:
25        (1) notice of any suspension or review, adjustment, or
26    enforcement of a support obligation and notice of any

 

 

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1    prohibition on the accrual of interest on the support
2    obligation that is imposed in accordance with paragraphs
3    (1) and (2) of subsection (d-6); and
4        (2) an opportunity to request that the suspension or
5    prohibition be terminated or modified on the basis that the
6    noncustodial parent has sufficient income or resources to
7    continue payment of the support obligation during the
8    noncustodial parent's period of incarceration.
9    (e) The right to petition for support or educational
10expenses, or both, under Sections 505 and 513 is not
11extinguished by the death of a parent. Upon a petition filed
12before or after a parent's death, the court may award sums of
13money out of the decedent's estate for the child's support or
14educational expenses, or both, as equity may require. The time
15within which a claim may be filed against the estate of a
16decedent under Sections 505 and 513 and subsection (d) and this
17subsection shall be governed by the provisions of the Probate
18Act of 1975, as a barrable, noncontingent claim.
19    (f) A petition to modify or terminate child support,
20custody, or visitation shall not delay any child support
21enforcement litigation or supplementary proceeding on behalf
22of the obligee, including, but not limited to, a petition for a
23rule to show cause, for non-wage garnishment, or for a
24restraining order.
25    (g) The Department of Healthcare and Family Services and
26the Department of Corrections shall share relevant data and

 

 

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1collaborate on the facilitation of identification of
2incarcerated parents eligible for either temporary suspension
3of a child support obligation or modification of a child
4support obligation and shall provide relevant information and
5assistance to incarcerated parents eligible for modification
6of support.
7    (h) The crime for which the incarcerated parents was
8convicted, or the prosecution of the incarcerated parent for
9that crime by a legal representative of the Department of
10Healthcare and Family Services for cases enrolled in the Child
11Support Enforcement Program established by Title IV-D of the
12Social Security Act, shall not disqualify the incarcerated
13parent from consideration of modification of a child support
14obligation, nor shall the action of the Department's legal
15representative to bring forth the modification request for
16consideration be considered a conflict of interest for the
17prosecuting office, except in cases where the crime was
18committed to avoid a child support obligation or was committed
19against a child of the obligated parent or the other parent.
20(Source: P.A. 97-608, eff. 1-1-12.)".