98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5991

 

Introduced , by Rep. Laura Fine

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/505  from Ch. 40, par. 505
750 ILCS 5/513  from Ch. 40, par. 513

    Amends the Illinois Marriage and Dissolution of Marriage Act. In provisions concerning child support, includes, in the definition of "child": a child under age 19 who was not attending high school on his or her 18th birthday but has resumed his or her attendance in high school; and a child under age 22 who is attending high school and is receiving special education services under an individualized education program developed under the Children with Disabilities Article of the School Code. In provisions concerning support for non-minor children, provides that a rebuttable presumption exists that a child meets the eligibility conditions of those provisions if the child: is receiving special education services under an individualized education program developed under the Children with Disabilities Article of the School Code; or is receiving transition services from the Department of Human Services in accordance with the Disabled Persons Rehabilitation Act after the child received special education services under an individualized education program developed under the Children with Disabilities Article of the School Code.


LRB098 18817 HEP 53962 b

 

 

A BILL FOR

 

HB5991LRB098 18817 HEP 53962 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 Sections 505 and 513 as
6follows:
 
7    (750 ILCS 5/505)  (from Ch. 40, par. 505)
8    Sec. 505. Child support; contempt; penalties.
9    (a) In a proceeding for dissolution of marriage, legal
10separation, declaration of invalidity of marriage, a
11proceeding for child support following dissolution of the
12marriage by a court that lacked personal jurisdiction over the
13absent spouse, a proceeding for modification of a previous
14order for child support under Section 510 of this Act, or any
15proceeding authorized under Section 501 or 601 of this Act, the
16court may order either or both parents owing a duty of support
17to a child of the marriage to pay an amount reasonable and
18necessary for the support of the child, without regard to
19marital misconduct. The duty of support owed to a child
20includes the obligation to provide for the reasonable and
21necessary educational, physical, mental and emotional health
22needs of the child. For purposes of this Section, the term
23"child" includes: a shall include any child under age 18; a and

 

 

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1any child under age 19 who is still attending high school; a
2child under age 19 who was not attending high school on his or
3her 18th birthday but has resumed his or her attendance in high
4school; and a child under age 22 who is attending high school
5and is receiving special education services under an
6individualized education program developed under Article 14 of
7the School Code.
8        (1) The Court shall determine the minimum amount of
9    support by using the following guidelines:
10Number of ChildrenPercent of Supporting Party's
11Net Income
12120%
13228%
14332%
15440%
16545%
176 or more50%
18        (2) The above guidelines shall be applied in each case
19    unless the court finds that a deviation from the guidelines
20    is appropriate after considering the best interest of the
21    child in light of the evidence, including, but not limited
22    to, one or more of the following relevant factors:
23            (a) the financial resources and needs of the child;
24            (b) the financial resources and needs of the
25        custodial parent;
26            (c) the standard of living the child would have

 

 

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1        enjoyed had the marriage not been dissolved;
2            (d) the physical, mental, and emotional needs of
3        the child;
4            (d-5) the educational needs of the child; and
5            (e) the financial resources and needs of the
6        non-custodial parent.
7        If the court deviates from the guidelines, the court's
8    finding shall state the amount of support that would have
9    been required under the guidelines, if determinable. The
10    court shall include the reason or reasons for the variance
11    from the guidelines.
12        (2.5) The court, in its discretion, in addition to
13    setting child support pursuant to the guidelines and
14    factors, may order either or both parents owing a duty of
15    support to a child of the marriage to contribute to the
16    following expenses, if determined by the court to be
17    reasonable:
18            (a) health needs not covered by insurance;
19            (b) child care;
20            (c) education; and
21            (d) extracurricular activities.
22        (3) "Net income" is defined as the total of all income
23    from all sources, minus the following deductions:
24            (a) Federal income tax (properly calculated
25        withholding or estimated payments);
26            (b) State income tax (properly calculated

 

 

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1        withholding or estimated payments);
2            (c) Social Security (FICA payments);
3            (d) Mandatory retirement contributions required by
4        law or as a condition of employment;
5            (e) Union dues;
6            (f) Dependent and individual
7        health/hospitalization insurance premiums and premiums
8        for life insurance ordered by the court to reasonably
9        secure payment of ordered child support;
10            (g) Prior obligations of support or maintenance
11        actually paid pursuant to a court order;
12            (h) Expenditures for repayment of debts that
13        represent reasonable and necessary expenses for the
14        production of income, medical expenditures necessary
15        to preserve life or health, reasonable expenditures
16        for the benefit of the child and the other parent,
17        exclusive of gifts. The court shall reduce net income
18        in determining the minimum amount of support to be
19        ordered only for the period that such payments are due
20        and shall enter an order containing provisions for its
21        self-executing modification upon termination of such
22        payment period;
23            (i) Foster care payments paid by the Department of
24        Children and Family Services for providing licensed
25        foster care to a foster child.
26        (4) In cases where the court order provides for

 

 

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1    health/hospitalization insurance coverage pursuant to
2    Section 505.2 of this Act, the premiums for that insurance,
3    or that portion of the premiums for which the supporting
4    party is responsible in the case of insurance provided
5    through an employer's health insurance plan where the
6    employer pays a portion of the premiums, shall be
7    subtracted from net income in determining the minimum
8    amount of support to be ordered.
9        (4.5) In a proceeding for child support following
10    dissolution of the marriage by a court that lacked personal
11    jurisdiction over the absent spouse, and in which the court
12    is requiring payment of support for the period before the
13    date an order for current support is entered, there is a
14    rebuttable presumption that the supporting party's net
15    income for the prior period was the same as his or her net
16    income at the time the order for current support is
17    entered.
18        (5) If the net income cannot be determined because of
19    default or any other reason, the court shall order support
20    in an amount considered reasonable in the particular case.
21    The final order in all cases shall state the support level
22    in dollar amounts. However, if the court finds that the
23    child support amount cannot be expressed exclusively as a
24    dollar amount because all or a portion of the payor's net
25    income is uncertain as to source, time of payment, or
26    amount, the court may order a percentage amount of support

 

 

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1    in addition to a specific dollar amount and enter such
2    other orders as may be necessary to determine and enforce,
3    on a timely basis, the applicable support ordered.
4        (6) If (i) the non-custodial parent was properly served
5    with a request for discovery of financial information
6    relating to the non-custodial parent's ability to provide
7    child support, (ii) the non-custodial parent failed to
8    comply with the request, despite having been ordered to do
9    so by the court, and (iii) the non-custodial parent is not
10    present at the hearing to determine support despite having
11    received proper notice, then any relevant financial
12    information concerning the non-custodial parent's ability
13    to provide child support that was obtained pursuant to
14    subpoena and proper notice shall be admitted into evidence
15    without the need to establish any further foundation for
16    its admission.
17    (a-5) In an action to enforce an order for support based on
18the respondent's failure to make support payments as required
19by the order, notice of proceedings to hold the respondent in
20contempt for that failure may be served on the respondent by
21personal service or by regular mail addressed to the
22respondent's last known address. The respondent's last known
23address may be determined from records of the clerk of the
24court, from the Federal Case Registry of Child Support Orders,
25or by any other reasonable means.
26    (b) Failure of either parent to comply with an order to pay

 

 

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1support shall be punishable as in other cases of contempt. In
2addition to other penalties provided by law the Court may,
3after finding the parent guilty of contempt, order that the
4parent be:
5        (1) placed on probation with such conditions of
6    probation as the Court deems advisable;
7        (2) sentenced to periodic imprisonment for a period not
8    to exceed 6 months; provided, however, that the Court may
9    permit the parent to be released for periods of time during
10    the day or night to:
11            (A) work; or
12            (B) conduct a business or other self-employed
13        occupation.
14    The Court may further order any part or all of the earnings
15of a parent during a sentence of periodic imprisonment paid to
16the Clerk of the Circuit Court or to the parent having custody
17or to the guardian having custody of the children of the
18sentenced parent for the support of said children until further
19order of the Court.
20    If a parent who is found guilty of contempt for failure to
21comply with an order to pay support is a person who conducts a
22business or who is self-employed, the court in addition to
23other penalties provided by law may order that the parent do
24one or more of the following: (i) provide to the court monthly
25financial statements showing income and expenses from the
26business or the self-employment; (ii) seek employment and

 

 

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1report periodically to the court with a diary, listing, or
2other memorandum of his or her employment search efforts; or
3(iii) report to the Department of Employment Security for job
4search services to find employment that will be subject to
5withholding for child support.
6    If there is a unity of interest and ownership sufficient to
7render no financial separation between a non-custodial parent
8and another person or persons or business entity, the court may
9pierce the ownership veil of the person, persons, or business
10entity to discover assets of the non-custodial parent held in
11the name of that person, those persons, or that business
12entity. The following circumstances are sufficient to
13authorize a court to order discovery of the assets of a person,
14persons, or business entity and to compel the application of
15any discovered assets toward payment on the judgment for
16support:
17        (1) the non-custodial parent and the person, persons,
18    or business entity maintain records together.
19        (2) the non-custodial parent and the person, persons,
20    or business entity fail to maintain an arm's length
21    relationship between themselves with regard to any assets.
22        (3) the non-custodial parent transfers assets to the
23    person, persons, or business entity with the intent to
24    perpetrate a fraud on the custodial parent.
25    With respect to assets which are real property, no order
26entered under this paragraph shall affect the rights of bona

 

 

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1fide purchasers, mortgagees, judgment creditors, or other lien
2holders who acquire their interests in the property prior to
3the time a notice of lis pendens pursuant to the Code of Civil
4Procedure or a copy of the order is placed of record in the
5office of the recorder of deeds for the county in which the
6real property is located.
7    The court may also order in cases where the parent is 90
8days or more delinquent in payment of support or has been
9adjudicated in arrears in an amount equal to 90 days obligation
10or more, that the parent's Illinois driving privileges be
11suspended until the court determines that the parent is in
12compliance with the order of support. The court may also order
13that the parent be issued a family financial responsibility
14driving permit that would allow limited driving privileges for
15employment and medical purposes in accordance with Section
167-702.1 of the Illinois Vehicle Code. The clerk of the circuit
17court shall certify the order suspending the driving privileges
18of the parent or granting the issuance of a family financial
19responsibility driving permit to the Secretary of State on
20forms prescribed by the Secretary. Upon receipt of the
21authenticated documents, the Secretary of State shall suspend
22the parent's driving privileges until further order of the
23court and shall, if ordered by the court, subject to the
24provisions of Section 7-702.1 of the Illinois Vehicle Code,
25issue a family financial responsibility driving permit to the
26parent.

 

 

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1    In addition to the penalties or punishment that may be
2imposed under this Section, any person whose conduct
3constitutes a violation of Section 15 of the Non-Support
4Punishment Act may be prosecuted under that Act, and a person
5convicted under that Act may be sentenced in accordance with
6that Act. The sentence may include but need not be limited to a
7requirement that the person perform community service under
8Section 50 of that Act or participate in a work alternative
9program under Section 50 of that Act. A person may not be
10required to participate in a work alternative program under
11Section 50 of that Act if the person is currently participating
12in a work program pursuant to Section 505.1 of this Act.
13    A support obligation, or any portion of a support
14obligation, which becomes due and remains unpaid as of the end
15of each month, excluding the child support that was due for
16that month to the extent that it was not paid in that month,
17shall accrue simple interest as set forth in Section 12-109 of
18the Code of Civil Procedure. An order for support entered or
19modified on or after January 1, 2006 shall contain a statement
20that a support obligation required under the order, or any
21portion of a support obligation required under the order, that
22becomes due and remains unpaid as of the end of each month,
23excluding the child support that was due for that month to the
24extent that it was not paid in that month, shall accrue simple
25interest as set forth in Section 12-109 of the Code of Civil
26Procedure. Failure to include the statement in the order for

 

 

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1support does not affect the validity of the order or the
2accrual of interest as provided in this Section.
3    (c) A one-time charge of 20% is imposable upon the amount
4of past-due child support owed on July 1, 1988 which has
5accrued under a support order entered by the court. The charge
6shall be imposed in accordance with the provisions of Section
710-21 of the Illinois Public Aid Code and shall be enforced by
8the court upon petition.
9    (d) Any new or existing support order entered by the court
10under this Section shall be deemed to be a series of judgments
11against the person obligated to pay support thereunder, each
12such judgment to be in the amount of each payment or
13installment of support and each such judgment to be deemed
14entered as of the date the corresponding payment or installment
15becomes due under the terms of the support order. Each such
16judgment shall have the full force, effect and attributes of
17any other judgment of this State, including the ability to be
18enforced. Notwithstanding any other State or local law to the
19contrary, a lien arises by operation of law against the real
20and personal property of the noncustodial parent for each
21installment of overdue support owed by the noncustodial parent.
22    (e) When child support is to be paid through the clerk of
23the court in a county of 1,000,000 inhabitants or less, the
24order shall direct the obligor to pay to the clerk, in addition
25to the child support payments, all fees imposed by the county
26board under paragraph (3) of subsection (u) of Section 27.1 of

 

 

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1the Clerks of Courts Act. Unless paid in cash or pursuant to an
2order for withholding, the payment of the fee shall be by a
3separate instrument from the support payment and shall be made
4to the order of the Clerk.
5    (f) All orders for support, when entered or modified, shall
6include a provision requiring the obligor to notify the court
7and, in cases in which a party is receiving child and spouse
8services under Article X of the Illinois Public Aid Code, the
9Department of Healthcare and Family Services, within 7 days,
10(i) of the name and address of any new employer of the obligor,
11(ii) whether the obligor has access to health insurance
12coverage through the employer or other group coverage and, if
13so, the policy name and number and the names of persons covered
14under the policy, and (iii) of any new residential or mailing
15address or telephone number of the non-custodial parent. In any
16subsequent action to enforce a support order, upon a sufficient
17showing that a diligent effort has been made to ascertain the
18location of the non-custodial parent, service of process or
19provision of notice necessary in the case may be made at the
20last known address of the non-custodial parent in any manner
21expressly provided by the Code of Civil Procedure or this Act,
22which service shall be sufficient for purposes of due process.
23    (g) An order for support shall include a date on which the
24current support obligation terminates. The termination date
25shall be no earlier than the date on which the child covered by
26the order will attain the age of 18. However, if the child will

 

 

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1not graduate from high school until after attaining the age of
218, then the termination date shall be no earlier than the
3earlier of the date on which the child's high school graduation
4will occur or the date on which the child will attain the age
5of 19. The order for support shall state that the termination
6date does not apply to any arrearage that may remain unpaid on
7that date. Nothing in this subsection shall be construed to
8prevent the court from modifying the order or terminating the
9order in the event the child is otherwise emancipated.
10    (g-5) If there is an unpaid arrearage or delinquency (as
11those terms are defined in the Income Withholding for Support
12Act) equal to at least one month's support obligation on the
13termination date stated in the order for support or, if there
14is no termination date stated in the order, on the date the
15child attains the age of majority or is otherwise emancipated,
16the periodic amount required to be paid for current support of
17that child immediately prior to that date shall automatically
18continue to be an obligation, not as current support but as
19periodic payment toward satisfaction of the unpaid arrearage or
20delinquency. That periodic payment shall be in addition to any
21periodic payment previously required for satisfaction of the
22arrearage or delinquency. The total periodic amount to be paid
23toward satisfaction of the arrearage or delinquency may be
24enforced and collected by any method provided by law for
25enforcement and collection of child support, including but not
26limited to income withholding under the Income Withholding for

 

 

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1Support Act. Each order for support entered or modified on or
2after the effective date of this amendatory Act of the 93rd
3General Assembly must contain a statement notifying the parties
4of the requirements of this subsection. Failure to include the
5statement in the order for support does not affect the validity
6of the order or the operation of the provisions of this
7subsection with regard to the order. This subsection shall not
8be construed to prevent or affect the establishment or
9modification of an order for support of a minor child or the
10establishment or modification of an order for support of a
11non-minor child or educational expenses under Section 513 of
12this Act.
13    (h) An order entered under this Section shall include a
14provision requiring the obligor to report to the obligee and to
15the clerk of court within 10 days each time the obligor obtains
16new employment, and each time the obligor's employment is
17terminated for any reason. The report shall be in writing and
18shall, in the case of new employment, include the name and
19address of the new employer. Failure to report new employment
20or the termination of current employment, if coupled with
21nonpayment of support for a period in excess of 60 days, is
22indirect criminal contempt. For any obligor arrested for
23failure to report new employment bond shall be set in the
24amount of the child support that should have been paid during
25the period of unreported employment. An order entered under
26this Section shall also include a provision requiring the

 

 

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1obligor and obligee parents to advise each other of a change in
2residence within 5 days of the change except when the court
3finds that the physical, mental, or emotional health of a party
4or that of a child, or both, would be seriously endangered by
5disclosure of the party's address.
6    (i) The court does not lose the powers of contempt,
7driver's license suspension, or other child support
8enforcement mechanisms, including, but not limited to,
9criminal prosecution as set forth in this Act, upon the
10emancipation of the minor child or children.
11(Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12;
1297-813, eff. 7-13-12; 97-878, eff. 8-2-12; 97-941, eff. 1-1-13;
1397-1029, eff. 1-1-13; 98-463, eff. 8-16-13.)
 
14    (750 ILCS 5/513)  (from Ch. 40, par. 513)
15    Sec. 513. Support for Non-minor Children and Educational
16Expenses.
17    (a) The court may award sums of money out of the property
18and income of either or both parties or the estate of a
19deceased parent, as equity may require, for the support of the
20child or children of the parties who have attained majority in
21the following instances:
22        (1) When the child is mentally or physically disabled
23    and not otherwise emancipated, an application for support
24    may be made before or after the child has attained
25    majority. A rebuttable presumption exists that a child

 

 

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1    meets the conditions of this paragraph (1) if:
2            (A) the child is receiving special education
3        services under an individualized education program
4        developed under Article 14 of the School Code; or
5            (B) the child is receiving transition services
6        from the Department of Human Services in accordance
7        with the Disabled Persons Rehabilitation Act after the
8        child received special education services under an
9        individualized education program developed under
10        Article 14 of the School Code.
11        (2) The court may also make provision for the
12    educational expenses of the child or children of the
13    parties, whether of minor or majority age, and an
14    application for educational expenses may be made before or
15    after the child has attained majority, or after the death
16    of either parent. The authority under this Section to make
17    provision for educational expenses extends not only to
18    periods of college education or professional or other
19    training after graduation from high school, but also to any
20    period during which the child of the parties is still
21    attending high school, even though he or she attained the
22    age of 19. The educational expenses may include, but shall
23    not be limited to, room, board, dues, tuition,
24    transportation, books, fees, registration and application
25    costs, medical expenses including medical insurance,
26    dental expenses, and living expenses during the school year

 

 

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1    and periods of recess, which sums may be ordered payable to
2    the child, to either parent, or to the educational
3    institution, directly or through a special account or trust
4    created for that purpose, as the court sees fit.
5        If educational expenses are ordered payable, each
6    parent and the child shall sign any consents necessary for
7    the educational institution to provide the supporting
8    parent with access to the child's academic transcripts,
9    records, and grade reports. The consents shall not apply to
10    any non-academic records. Failure to execute the required
11    consent may be a basis for a modification or termination of
12    any order entered under this Section. Unless the court
13    specifically finds that the child's safety would be
14    jeopardized, each parent is entitled to know the name of
15    the educational institution the child attends. This
16    amendatory Act of the 95th General Assembly applies to all
17    orders entered under this paragraph (2) on or after the
18    effective date of this amendatory Act of the 95th General
19    Assembly.
20        The authority under this Section to make provision for
21    educational expenses, except where the child is mentally or
22    physically disabled and not otherwise emancipated,
23    terminates when the child receives a baccalaureate degree.
24    (b) In making awards under paragraph (1) or (2) of
25subsection (a), or pursuant to a petition or motion to
26decrease, modify, or terminate any such award, the court shall

 

 

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1consider all relevant factors that appear reasonable and
2necessary, including:
3        (1) The financial resources of both parents.
4        (2) The standard of living the child would have enjoyed
5    had the marriage not been dissolved.
6        (3) The financial resources of the child.
7        (4) The child's academic performance.
8(Source: P.A. 95-954, eff. 8-29-08.)