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1 | | AN ACT concerning civil law.
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2 | | Be it enacted by the People of the State of Illinois,
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3 | | represented in the General Assembly:
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4 | | ARTICLE 1. HEART BALM ACTIONS |
5 | | Section 1-1. Findings. The majority of states have |
6 | | abolished heart balm actions. In Illinois, heart balm actions |
7 | | for alienation of affections, breach of promise to marry, and |
8 | | criminal conversation were permitted under the common law |
9 | | before the abolition of those causes of action by "An Act in |
10 | | relation to certain causes of action conducive to extortion and |
11 | | blackmail, and to declare illegal, contracts and Acts made and |
12 | | done in pursuance thereof", filed May 4, 1935, Laws 1935, p. |
13 | | 716. The Illinois Supreme Court held, in Heck v. Schupp, 394 |
14 | | Ill. 296 (1946), that the 1935 Act was unconstitutional and |
15 | | that the abolition of heart balm actions would infringe upon |
16 | | the rights of parties to remedies under Section 19 of Article |
17 | | II of the 1870 Constitution. (Section 12 of Article I of the |
18 | | 1970 Constitution is similar to the relevant portion of Section |
19 | | 19 of Article II of the 1870 Constitution.) Since 1947, heart |
20 | | balm actions have been permitted with limited damages under the |
21 | | Alienation of Affections Act, the Breach of Promise Act, and |
22 | | the Criminal Conversation Act. |
23 | | Society has since recognized that the amicable settlement |
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1 | | of domestic relations disputes is beneficial. In 1977, the |
2 | | Illinois Marriage and Dissolution of Marriage Act became the |
3 | | law of this State. As stated in Section 102 of that Act, among |
4 | | its underlying purposes are: promoting the amicable settlement |
5 | | of disputes that have arisen between parties to a marriage; |
6 | | mitigating the potential harm to the spouses and their children |
7 | | caused by the process of legal dissolution of marriage; and |
8 | | eliminating the consideration of marital misconduct in the |
9 | | adjudication of rights and duties incident to the legal |
10 | | dissolution of marriage, legal separation and declaration of |
11 | | invalidity of marriage. Heart balm actions are inconsistent |
12 | | with these purposes. |
13 | | Society has also realized that women and men should have |
14 | | equal rights under the law. Heart balm actions are rooted in |
15 | | the now-discredited notion that men and women are unequal. |
16 | | Although the Alienation of Affections Act, the Breach of |
17 | | Promise Act, and the Criminal Conversation Act represent |
18 | | attempts to ameliorate some of the more odious consequences of |
19 | | heart balm actions, the General Assembly finds that actions for |
20 | | alienation of affections, breach of promise to marry, and |
21 | | criminal conversation are contrary to the public policy of this |
22 | | State and those causes of action should be abolished.
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23 | | Section 1-5. The Code of Civil Procedure is amended by |
24 | | changing Section 13-202 as follows:
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1 | | (735 ILCS 5/13-202) (from Ch. 110, par. 13-202)
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2 | | Sec. 13-202. Personal injury - Penalty. Actions for damages |
3 | | for an injury
to the person, or for
false imprisonment, or |
4 | | malicious prosecution, or for a statutory
penalty, or for |
5 | | abduction, or for seduction, or for criminal
conversation that |
6 | | may proceed pursuant to subsection (a) of Section 7.1 of the |
7 | | Criminal Conversation Abolition Act , except damages resulting |
8 | | from first degree murder or the commission of
a Class X felony |
9 | | and the perpetrator thereof is convicted of such crime,
shall |
10 | | be commenced within 2 years next after the cause
of action |
11 | | accrued but such an action against a defendant arising from a
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12 | | crime committed by the defendant in whose name an escrow |
13 | | account was established
under the "Criminal Victims' Escrow |
14 | | Account Act" shall be commenced within
2 years after the |
15 | | establishment of such account. If the compelling of a |
16 | | confession or information by imminent bodily harm or threat of |
17 | | imminent bodily harm results in whole or in part in a criminal |
18 | | prosecution of the plaintiff, the
2-year period set out in this |
19 | | Section shall be tolled during the time in which the plaintiff |
20 | | is incarcerated, or until criminal prosecution has been finally |
21 | | adjudicated in favor of the above referred plaintiff, whichever |
22 | | is later. However, this provision relating to the compelling of |
23 | | a confession or information shall not apply to units of local |
24 | | government subject to the Local Governmental and Governmental |
25 | | Employees Tort Immunity Act.
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26 | | (Source: P.A. 94-1113, eff. 1-1-08 .)
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1 | | Section 1-10. The Alienation of Affections Act is amended |
2 | | by changing the title of the Act and Section 0.01 and by adding |
3 | | Section 7.1 as follows:
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4 | | (740 ILCS 5/Act title)
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5 | | An Act relating to the damages
recoverable in actions for |
6 | | alienation of affections.
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7 | | (740 ILCS 5/0.01) (from Ch. 40, par. 1900)
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8 | | Sec. 0.01. Short title. This Act may be cited as the
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9 | | Alienation of Affections Abolition Act.
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10 | | (Source: P.A. 86-1324.)
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11 | | (740 ILCS 5/7.1 new) |
12 | | Sec. 7.1. Abolition; effect of repeal. |
13 | | (a) This amendatory Act of the 99th General Assembly
does |
14 | | not apply to any cause of action that accrued under Sections 1 |
15 | | through 7 of this Act before their repeal, and a timely action |
16 | | brought under those Sections shall be decided in accordance |
17 | | with those Sections as they existed when the cause of action |
18 | | accrued. |
19 | | (b) An action may not be brought for alienation of |
20 | | affections based on facts occurring on or after the effective |
21 | | date of this amendatory Act of the 99th General Assembly. |
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1 | | (740 ILCS 5/1 rep.) |
2 | | (740 ILCS 5/2 rep.) |
3 | | (740 ILCS 5/3 rep.) |
4 | | (740 ILCS 5/4 rep.) |
5 | | (740 ILCS 5/5 rep.) |
6 | | (740 ILCS 5/6 rep.) |
7 | | (740 ILCS 5/7 rep.) |
8 | | Section 1-15. The Alienation of Affections Act is amended |
9 | | by repealing Sections 1, 2, 3, 4, 5, 6, and 7. |
10 | | Section 1-20. The Breach of Promise Act is amended by |
11 | | changing Section 0.01 and by adding Section 10.1 as follows:
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12 | | (740 ILCS 15/0.01) (from Ch. 40, par. 1800)
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13 | | Sec. 0.01. Short title. This Act may be cited as the
Breach |
14 | | of Promise Abolition Act.
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15 | | (Source: P.A. 86-1324.)
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16 | | (740 ILCS 15/10.1 new) |
17 | | Sec. 10.1. Abolition; effect of repeal. |
18 | | (a) This amendatory Act of the 99th General Assembly
does |
19 | | not apply to any cause of action that accrued under Sections 1 |
20 | | through 10 of this Act before their repeal, and a timely action |
21 | | brought under those Sections shall be decided in accordance |
22 | | with those Sections as they existed when the cause of action |
23 | | accrued. |
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1 | | (b) An action may not be brought for breach of promise or |
2 | | agreement to marry based on facts occurring on or after the |
3 | | effective date of this amendatory Act of the 99th General |
4 | | Assembly. |
5 | | (740 ILCS 15/1 rep.) |
6 | | (740 ILCS 15/2 rep.) |
7 | | (740 ILCS 15/3 rep.) |
8 | | (740 ILCS 15/4 rep.) |
9 | | (740 ILCS 15/5 rep.) |
10 | | (740 ILCS 15/6 rep.) |
11 | | (740 ILCS 15/7 rep.) |
12 | | (740 ILCS 15/8 rep.) |
13 | | (740 ILCS 15/9 rep.) |
14 | | (740 ILCS 15/10 rep.) |
15 | | Section 1-25. The Breach of Promise Act is amended by |
16 | | repealing Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10. |
17 | | Section 1-30. The Criminal Conversation Act is amended by |
18 | | changing the title of the Act and Section 0.01 and by adding |
19 | | Section 7.1 as follows:
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20 | | (740 ILCS 50/Act title)
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21 | | An Act relating to the damages
recoverable in actions for |
22 | | criminal conversation.
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1 | | (740 ILCS 50/0.01) (from Ch. 40, par. 1950)
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2 | | Sec. 0.01. Short title. This Act may be cited as the
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3 | | Criminal Conversation Abolition Act.
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4 | | (Source: P.A. 86-1324.)
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5 | | (740 ILCS 50/7.1 new) |
6 | | Sec. 7.1. Abolition; effect of repeal. |
7 | | (a) This amendatory Act of the 99th General Assembly
does |
8 | | not apply to any cause of action that accrued under Sections 1 |
9 | | through 7 of this Act before their repeal, and a timely action |
10 | | brought under those Sections shall be decided in accordance |
11 | | with those Sections as they existed when the cause of action |
12 | | accrued. |
13 | | (b) An action may not be brought for criminal conversation |
14 | | based on facts occurring on or after the effective date of this |
15 | | amendatory Act of the 99th General Assembly. |
16 | | (740 ILCS 50/1 rep.) |
17 | | (740 ILCS 50/2 rep.) |
18 | | (740 ILCS 50/3 rep.) |
19 | | (740 ILCS 50/4 rep.) |
20 | | (740 ILCS 50/5 rep.) |
21 | | (740 ILCS 50/6 rep.) |
22 | | (740 ILCS 50/7 rep.) |
23 | | Section 1-35. The Criminal Conversation Act is amended by |
24 | | repealing Sections 1, 2, 3, 4, 5, 6, and 7.
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1 | | ARTICLE 5. OTHER AMENDATORY PROVISIONS |
2 | | Section 5-5. The Intergovernmental Missing Child Recovery |
3 | | Act of 1984 is amended by changing Section 7.1 as follows:
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4 | | (325 ILCS 40/7.1) (from Ch. 23, par. 2257.1)
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5 | | Sec. 7.1. In addition to any requirement of Section 601.2
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6 | | 601 or 611 of the
Illinois Marriage and Dissolution of Marriage |
7 | | Act or
applicable provisions of the Uniform Child-Custody |
8 | | Jurisdiction
and Enforcement Act regarding a parental |
9 | | responsibility allocation
custody proceeding
of an |
10 | | out-of-state party, every court in this State, prior to |
11 | | granting or
modifying a parental responsibility allocation
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12 | | custody judgment, shall inquire with LEADS and the National
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13 | | Crime Information Center to ascertain whether the child or |
14 | | children in
question have been reported missing or have been |
15 | | involved in or are the
victims of a parental or noncustodial |
16 | | abduction. Such inquiry may be
conducted with any law |
17 | | enforcement agency in this State that maintains a
LEADS |
18 | | terminal or has immediate access to one on a 24-hour-per-day,
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19 | | 7-day-per-week basis through a written agreement with another |
20 | | law enforcement
agency.
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21 | | (Source: P.A. 93-108, eff. 1-1-04.)
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22 | | Section 5-10. The Code of Criminal Procedure of 1963 is |
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1 | | amended by changing Section 112A-23 as follows:
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2 | | (725 ILCS 5/112A-23) (from Ch. 38, par. 112A-23)
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3 | | Sec. 112A-23. Enforcement of orders of protection.
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4 | | (a) When violation is crime. A violation of any order of |
5 | | protection,
whether issued in a civil, quasi-criminal |
6 | | proceeding, shall be
enforced by a
criminal court when:
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7 | | (1) The respondent commits the crime of violation of an |
8 | | order of
protection pursuant to Section 12-3.4 or 12-30 of |
9 | | the Criminal Code of
1961 or the Criminal Code of 2012, by
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10 | | having knowingly violated:
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11 | | (i) remedies described in paragraphs (1), (2), |
12 | | (3), (14),
or
(14.5)
of subsection (b) of Section |
13 | | 112A-14,
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14 | | (ii) a remedy, which is substantially similar to |
15 | | the remedies
authorized
under paragraphs (1), (2), |
16 | | (3), (14) or (14.5) of subsection (b) of Section 214
of |
17 | | the Illinois Domestic Violence Act of 1986, in a valid |
18 | | order of protection,
which is authorized under the laws |
19 | | of another state, tribe or United States
territory,
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20 | | (iii) or any other remedy when the act
constitutes |
21 | | a crime against the protected parties as defined by the |
22 | | Criminal
Code of 1961 or the Criminal Code of 2012.
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23 | | Prosecution for a violation of an order of protection |
24 | | shall
not bar concurrent prosecution for any other crime, |
25 | | including any crime
that may have been committed at the |
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1 | | time of the violation of the order
of protection; or
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2 | | (2) The respondent commits the crime of child abduction |
3 | | pursuant
to Section 10-5 of the Criminal Code of 1961 or |
4 | | the Criminal Code of 2012, by having knowingly violated:
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5 | | (i) remedies described in paragraphs (5), (6) or |
6 | | (8) of subsection
(b)
of
Section 112A-14, or
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7 | | (ii) a remedy, which is substantially similar to |
8 | | the remedies
authorized
under paragraphs (1),
(5), |
9 | | (6), or (8) of subsection (b) of Section 214
of the |
10 | | Illinois Domestic Violence Act of 1986, in a valid |
11 | | order of protection,
which is authorized under the laws |
12 | | of another state, tribe or United States
territory.
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13 | | (b) When violation is contempt of court. A violation of any |
14 | | valid order of protection, whether issued in a civil or |
15 | | criminal
proceeding, may be enforced through civil or criminal |
16 | | contempt procedures,
as appropriate, by any court with |
17 | | jurisdiction, regardless where the act or
acts which violated |
18 | | the order of protection were committed, to the extent
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19 | | consistent with the venue provisions of this Article. Nothing |
20 | | in this
Article shall preclude any Illinois court from |
21 | | enforcing any valid order of
protection issued in another |
22 | | state. Illinois courts may enforce orders of
protection through |
23 | | both criminal prosecution and contempt proceedings,
unless the |
24 | | action which is second in time is barred by collateral estoppel
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25 | | or the constitutional prohibition against double jeopardy.
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26 | | (1) In a contempt proceeding where the petition for a |
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1 | | rule to show
cause sets forth facts evidencing an immediate |
2 | | danger that the
respondent will flee the jurisdiction, |
3 | | conceal a child, or inflict physical
abuse on the |
4 | | petitioner or minor children or on dependent adults in
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5 | | petitioner's care, the court may order the
attachment of |
6 | | the respondent without prior service of the rule to show
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7 | | cause or the petition for a rule to show cause. Bond shall |
8 | | be set unless
specifically denied in writing.
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9 | | (2) A petition for a rule to show cause for violation |
10 | | of an order of
protection shall be treated as an expedited |
11 | | proceeding.
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12 | | (c) Violation of custody , allocation of parental |
13 | | responsibility, or support orders. A violation of remedies
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14 | | described in paragraphs (5), (6), (8), or (9) of subsection (b) |
15 | | of Section
112A-14 may be enforced by any remedy provided by |
16 | | Section 607.5 611 of
the Illinois Marriage and Dissolution of |
17 | | Marriage Act. The court may
enforce any order for support |
18 | | issued under paragraph (12) of subsection (b)
of Section |
19 | | 112A-14 in the manner provided for under Parts
V and VII of the
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20 | | Illinois Marriage and Dissolution of Marriage Act.
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21 | | (d) Actual knowledge. An order of protection may be
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22 | | enforced pursuant to this Section if the respondent violates |
23 | | the order
after respondent has actual knowledge of its contents
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24 | | as shown through one of the following means:
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25 | | (1) By service, delivery, or notice under Section |
26 | | 112A-10.
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1 | | (2) By notice under Section 112A-11.
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2 | | (3) By service of an order of protection under Section |
3 | | 112A-22.
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4 | | (4) By other means demonstrating actual knowledge of |
5 | | the contents of the order.
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6 | | (e) The enforcement of an order of protection in civil or |
7 | | criminal court
shall not be affected by either of the |
8 | | following:
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9 | | (1) The existence of a separate, correlative order |
10 | | entered under Section
112A-15.
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11 | | (2) Any finding or order entered in a conjoined |
12 | | criminal proceeding.
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13 | | (f) Circumstances. The court, when determining whether or |
14 | | not a
violation of an order of protection has occurred, shall |
15 | | not require
physical manifestations of abuse on the person of |
16 | | the victim.
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17 | | (g) Penalties.
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18 | | (1) Except as provided in paragraph (3) of this
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19 | | subsection, where the court finds the commission of a crime |
20 | | or contempt of
court under subsections (a) or (b) of this |
21 | | Section, the penalty shall be
the penalty that generally |
22 | | applies in such criminal or contempt
proceedings, and may |
23 | | include one or more of the following: incarceration,
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24 | | payment of restitution, a fine, payment of attorneys' fees |
25 | | and costs, or
community service.
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26 | | (2) The court shall hear and take into account evidence |
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1 | | of any factors
in aggravation or mitigation before deciding |
2 | | an appropriate penalty under
paragraph (1) of this |
3 | | subsection.
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4 | | (3) To the extent permitted by law, the court is |
5 | | encouraged to:
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6 | | (i) increase the penalty for the knowing violation |
7 | | of
any order of protection over any penalty previously |
8 | | imposed by any court
for respondent's violation of any |
9 | | order of protection or penal statute
involving |
10 | | petitioner as victim and respondent as defendant;
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11 | | (ii) impose a minimum penalty of 24 hours |
12 | | imprisonment for respondent's
first violation of any |
13 | | order of protection; and
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14 | | (iii) impose a minimum penalty of 48 hours |
15 | | imprisonment for
respondent's second or subsequent |
16 | | violation of an order of protection
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17 | | unless the court explicitly finds that an increased penalty |
18 | | or that
period of imprisonment would be manifestly unjust.
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19 | | (4) In addition to any other penalties imposed for a |
20 | | violation of an
order of protection, a criminal court may |
21 | | consider evidence of any
violations of an order of |
22 | | protection:
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23 | | (i) to increase, revoke or modify the bail bond on |
24 | | an underlying
criminal charge pursuant to Section |
25 | | 110-6;
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26 | | (ii) to revoke or modify an order of probation, |
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1 | | conditional discharge or
supervision, pursuant to |
2 | | Section 5-6-4 of the Unified Code of Corrections;
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3 | | (iii) to revoke or modify a sentence of periodic |
4 | | imprisonment, pursuant
to Section 5-7-2 of the Unified |
5 | | Code of Corrections.
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6 | | (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
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7 | | Section 5-15. The Illinois Marriage and Dissolution of |
8 | | Marriage Act is amended by changing Sections 102, 104, 105, |
9 | | 107, 209, 219, 304, 401, 402, 403, 404, 405, 409, 411, 413, |
10 | | 452, 453, 501, 501.1, 502, 503, 504, 505, 505.1, 506, 508, 509, |
11 | | 510, 512, 513, 602.3, 801 and the heading of Part VI and by |
12 | | adding Sections 513.5, 600, 601.2, 602.5, 602.7, 602.8, 602.9, |
13 | | 602.10, 602.11, 603.5, 603.10, 604.10, 606.5, 606.10, 607.5, |
14 | | 609.2, and 610.5 as follows:
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15 | | (750 ILCS 5/102) (from Ch. 40, par. 102)
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16 | | Sec. 102. Purposes; Rules of Construction. This Act shall |
17 | | be liberally
construed and applied to promote its underlying |
18 | | purposes, which are to:
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19 | | (1) provide adequate procedures for the solemnization and |
20 | | registration
of marriage;
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21 | | (2) strengthen and preserve the integrity of marriage and |
22 | | safeguard family
relationships;
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23 | | (3) promote the amicable settlement of disputes that have |
24 | | arisen between
parties to a marriage;
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1 | | (4) mitigate the potential harm to the spouses and their |
2 | | children caused
by the process of an action brought under this |
3 | | Act, and protect children from exposure to conflict and |
4 | | violence legal dissolution of marriage ;
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5 | | (5) ensure predictable decision-making for the care of |
6 | | children and for the allocation of parenting time and other |
7 | | parental responsibilities, and avoid prolonged uncertainty by |
8 | | expeditiously resolving issues involving children; |
9 | | (6) recognize the right of children to a healthy |
10 | | relationship with parents, and the responsibility of parents to |
11 | | ensure such a relationship; |
12 | | (7) acknowledge that the determination of children's best |
13 | | interests, and the allocation of parenting time and significant |
14 | | decision-making responsibilities, are among the paramount |
15 | | responsibilities of our system of justice, and to that end: |
16 | | (A) recognize children's right to a strong and healthy |
17 | | relationship with parents, and parents' concomitant right |
18 | | and responsibility to create and maintain such |
19 | | relationships; |
20 | | (B) recognize that, in the absence of domestic violence |
21 | | or any other factor that the court expressly finds to be |
22 | | relevant, proximity to, and frequent contact with, both |
23 | | parents promotes healthy development of children; |
24 | | (C) facilitate parental planning and agreement about |
25 | | the children's upbringing and allocation of parenting time |
26 | | and other parental responsibilities; |
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1 | | (D) continue existing parent-child relationships, and |
2 | | secure the maximum involvement and cooperation of parents |
3 | | regarding the physical, mental, moral, and emotional |
4 | | well-being of the children during and after the litigation; |
5 | | and |
6 | | (E) promote or order parents to participate in programs |
7 | | designed to educate parents to: |
8 | | (i) minimize or eliminate rancor and the |
9 | | detrimental effect of litigation in any proceeding |
10 | | involving children; and |
11 | | (ii) facilitate the maximum cooperation of parents |
12 | | in raising their children;
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13 | | (8)
(5) make reasonable provision for support spouses and |
14 | | minor children during and
after an underlying dissolution of |
15 | | marriage, legal separation, parentage, or parental |
16 | | responsibility allocation action litigation , including |
17 | | provision for timely advances awards of interim fees and costs |
18 | | to all attorneys, experts, and opinion witnesses including |
19 | | guardians ad litem and children's representatives, to
achieve |
20 | | substantial parity in parties' access to funds for pre-judgment |
21 | | litigation costs in an action for dissolution of marriage or |
22 | | legal separation ;
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23 | | (9)
(6) eliminate the consideration of marital misconduct |
24 | | in the adjudication
of rights and duties incident to the legal
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25 | | dissolution of marriage, legal
separation and declaration of |
26 | | invalidity of marriage; and
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1 | | (7) secure the maximum involvement and cooperation of both |
2 | | parents regarding
the physical, mental, moral and emotional |
3 | | well-being of the children during
and after the litigation; and
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4 | | (10)
(8) make provision for the preservation and |
5 | | conservation of marital assets
during the litigation.
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6 | | (Source: P.A. 89-712, eff. 6-1-97.)
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7 | | (750 ILCS 5/104) (from Ch. 40, par. 104)
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8 | | Sec. 104. Venue. ) The proceedings shall be had in the |
9 | | county
where the plaintiff or defendant resides,
except as |
10 | | otherwise
provided herein, but process may be directed to any |
11 | | county in
the State. Objection to venue is barred if not made |
12 | | within
such time as the defendant's response is
due. In no |
13 | | event shall venue be deemed jurisdictional.
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14 | | In any case brought pursuant to this Act where neither the |
15 | | petitioner nor respondent resides in the county in which the |
16 | | initial pleading is filed, the petitioner shall file with the |
17 | | initial pleading a written motion, which shall be set for |
18 | | hearing and ruled upon before any other issue is taken up, |
19 | | advising that the forum selected is not one of proper venue and |
20 | | seeking an appropriate order from the court allowing a waiver |
21 | | of the venue requirements of this Section. |
22 | | (Source: P.A. 82-716.)
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23 | | (750 ILCS 5/105) (from Ch. 40, par. 105)
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24 | | Sec. 105. Application of Civil Practice Law.)
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1 | | (a) The provisions
of the Civil Practice Law shall apply to |
2 | | all proceedings under
this Act, except as otherwise provided in |
3 | | this Act.
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4 | | (b) A proceeding for dissolution of marriage, legal |
5 | | separation
or declaration of invalidity of marriage shall be |
6 | | entitled "In re
the Marriage of ... and ...". A parental |
7 | | responsibility allocation custody or support proceeding shall
|
8 | | be entitled "In re the ( Parental Responsibility Custody ) |
9 | | (Support) of ...".
|
10 | | (c) The initial pleading in all proceedings under this Act |
11 | | shall
be denominated a petition. A responsive pleading shall be |
12 | | denominated
a response. If new matter by way of defense is |
13 | | pleaded in the response, a reply may be filed by the |
14 | | petitioner, but the failure to reply is not an admission of the |
15 | | legal sufficiency of the new matter. All other pleadings under |
16 | | this Act shall be denominated as
provided in the Civil Practice |
17 | | Law.
|
18 | | (d) As used in this Section, "pleadings" includes any |
19 | | petition or motion filed in the dissolution of marriage case |
20 | | which, if independently filed, would constitute a separate |
21 | | cause of action, including, but not limited to, actions for |
22 | | declaratory judgment, injunctive relief, and orders of |
23 | | protection. Actions under this subsection are subject to |
24 | | motions filed pursuant to Sections 2-615 and 2-619 of the Code |
25 | | of Civil Procedure. |
26 | | (Source: P.A. 82-783 .)
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1 | | (750 ILCS 5/107) (from Ch. 40, par. 107)
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2 | | Sec. 107. Order of protection; status. Whenever relief is |
3 | | sought under
Part V, Part VI or Part VII of this Act, the court |
4 | | shall inquire and parties shall advise the court , before |
5 | | granting relief,
shall determine whether any order of |
6 | | protection has previously been entered
in the instant |
7 | | proceeding or any other proceeding in which any party, or a
|
8 | | child of any party, or both, if relevant, has been designated |
9 | | as either a petitioner,
respondent , or a protected person.
|
10 | | (Source: P.A. 87-743.)
|
11 | | (750 ILCS 5/209) (from Ch. 40, par. 209)
|
12 | | Sec. 209. Solemnization and Registration. ) |
13 | | (a) A marriage may be solemnized by a judge of a court of |
14 | | record, by a
retired judge of a court of record, unless the |
15 | | retired judge was removed from
office by the Judicial Inquiry |
16 | | Board, except that a retired judge shall not
receive any |
17 | | compensation from the State, a county or any unit of local
|
18 | | government in return for the solemnization of a marriage and |
19 | | there shall be no
effect upon any pension benefits conferred by |
20 | | the Judges Retirement System of
Illinois, by a judge of the |
21 | | Court of Claims, by a county clerk in counties
having 2,000,000 |
22 | | or more inhabitants, by a public official whose powers include
|
23 | | solemnization of marriages, or in accordance with the |
24 | | prescriptions of any
religious denomination, Indian Nation or |
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1 | | Tribe or Native Group, provided that
when such prescriptions |
2 | | require an officiant, the officiant be in good standing
with |
3 | | his or her religious denomination, Indian Nation or Tribe or |
4 | | Native Group.
Either the person solemnizing the marriage, or, |
5 | | if no individual acting alone
solemnized the marriage, both |
6 | | parties to the marriage, shall complete the
marriage |
7 | | certificate form and forward it to the county clerk within 10 |
8 | | days
after such marriage is solemnized.
|
9 | | (a-5) Nothing in this Act shall be construed to require any |
10 | | religious denomination or Indian Nation or Tribe or Native |
11 | | Group, or any minister, clergy, or officiant acting as a |
12 | | representative of a religious denomination or Indian Nation or |
13 | | Tribe or Native Group, to solemnize any marriage. Instead, any |
14 | | religious denomination or Indian Nation or Tribe or Native |
15 | | Group, or any minister, clergy, or officiant acting as a |
16 | | representative of a religious denomination or Indian Nation or |
17 | | Tribe or Native Group is free to choose which marriages it will |
18 | | solemnize. Notwithstanding any other law to the contrary, a |
19 | | refusal by a religious denomination or Indian Nation or Tribe |
20 | | or Native Group, or any minister, clergy, or officiant acting |
21 | | as a representative of a religious denomination or Indian |
22 | | Nation or Tribe or Native Group to solemnize any marriage under |
23 | | this Act shall not create or be the basis for any civil, |
24 | | administrative, or criminal penalty, claim, or cause of action. |
25 | | (a-10) No church, mosque, synagogue, temple, |
26 | | nondenominational ministry, interdenominational or ecumenical |
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1 | | organization, mission organization, or other organization |
2 | | whose principal purpose is the study, practice, or advancement |
3 | | of religion is required to provide religious facilities for the |
4 | | solemnization ceremony or celebration associated with the |
5 | | solemnization ceremony of a marriage if the solemnization |
6 | | ceremony or celebration associated with the solemnization |
7 | | ceremony is in violation of its religious beliefs. An entity |
8 | | identified in this subsection (a-10) shall be immune from any |
9 | | civil, administrative, criminal penalty, claim, or cause of |
10 | | action based on its refusal to provide religious facilities for |
11 | | the solemnization ceremony or celebration associated with the |
12 | | solemnization ceremony of a marriage if the solemnization |
13 | | ceremony or celebration associated with the solemnization |
14 | | ceremony is in violation of its religious beliefs. As used in |
15 | | this subsection (a-10), "religious facilities" means |
16 | | sanctuaries, parish halls, fellowship halls, and similar |
17 | | facilities. "Religious facilities" does not include facilities |
18 | | such as businesses, health care facilities, educational |
19 | | facilities, or social service agencies. |
20 | | (b) The solemnization of the marriage is not invalidated : |
21 | | (1) by the
fact that the person solemnizing the marriage was |
22 | | not legally qualified
to solemnize it, if a reasonable person |
23 | | would believe the person solemnizing the marriage to be so |
24 | | qualified; if either party to the marriage believed him or her |
25 | | to be so
qualified or (2) by the fact that the marriage was |
26 | | inadvertently solemnized in a county in Illinois other than the |
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1 | | county where the license was issued and filed .
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2 | | (c) Any marriage that meets the requirements of this |
3 | | Section shall be presumed valid. |
4 | | (Source: P.A. 98-597, eff. 6-1-14 .)
|
5 | | (750 ILCS 5/219) (from Ch. 40, par. 219)
|
6 | | Sec. 219. Offenses. ) Any official issuing a license with
|
7 | | knowledge that the parties are thus prohibited from marrying |
8 | | intermarrying
and any person authorized to solemnize celebrate |
9 | | marriage who shall knowingly solemnize
celebrate such a |
10 | | marriage shall be guilty of a Class C misdemeanor petty |
11 | | offense .
|
12 | | (Source: P.A. 80-923.)
|
13 | | (750 ILCS 5/304) (from Ch. 40, par. 304)
|
14 | | Sec. 304. Retroactivity. ) Unless the court finds, after
a |
15 | | consideration of all relevant circumstances, including
the |
16 | | effect of a retroactive judgment on third parties, that
the |
17 | | interests of justice would be served by making the judgment
not |
18 | | retroactive, it shall declare the marriage invalid as of the
|
19 | | date of the marriage. The provisions of this Act relating to
|
20 | | property rights of the spouses, maintenance, support and |
21 | | custody
of children , and allocation of parental |
22 | | responsibilities on dissolution of marriage are applicable to |
23 | | non-retroactive
judgments of invalidity of marriage only.
|
24 | | (Source: P.A. 80-923.)
|
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1 | | (750 ILCS 5/401) (from Ch. 40, par. 401)
|
2 | | Sec. 401. Dissolution of marriage.
|
3 | | (a) The court shall enter a judgment of dissolution of |
4 | | marriage when if at
the time the action was commenced one of |
5 | | the spouses was a resident of this
State or was stationed in |
6 | | this State while a member of the armed services,
and the |
7 | | residence or military presence had been maintained for 90 days |
8 | | next
preceding the commencement of the action or the making of |
9 | | the finding : |
10 | | Irreconcilable differences have caused the irretrievable |
11 | | breakdown of the marriage and the court determines that efforts |
12 | | at reconciliation have failed or that future attempts at |
13 | | reconciliation would be impracticable and not in the best |
14 | | interests of the family. |
15 | | (a-5) If the parties live separate and apart for a |
16 | | continuous period of not less than 6 months immediately |
17 | | preceding the entry of the judgment dissolving the marriage, |
18 | | there is an irrebuttable presumption that the requirement of |
19 | | irreconcilable differences has been met. ;
provided, however, |
20 | | that a finding of residence of a party in any judgment
entered |
21 | | under this Act from January 1, 1982 through June 30, 1982 shall
|
22 | | satisfy the former domicile requirements of this Act; and if |
23 | | one of the
following grounds for dissolution has been proved:
|
24 | | (1) That, without cause or provocation by the
|
25 | | petitioner: the respondent was at the time of such |
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1 | | marriage, and
continues to be naturally impotent; the |
2 | | respondent had a wife
or husband living at the time of the |
3 | | marriage; the respondent
had committed adultery subsequent |
4 | | to the marriage; the respondent has wilfully
deserted or |
5 | | absented himself or herself from the petitioner for the |
6 | | space
of one year, including any period during which |
7 | | litigation may have pended
between the spouses for |
8 | | dissolution of marriage or legal separation; the
|
9 | | respondent has been guilty of habitual drunkenness for the |
10 | | space of 2
years; the respondent has been guilty of gross |
11 | | and confirmed habits caused
by the excessive use of |
12 | | addictive drugs for the space of 2 years, or has
attempted |
13 | | the life of the other by poison or other means showing |
14 | | malice, or
has been guilty of extreme and repeated physical |
15 | | or mental cruelty, or has
been convicted of a felony or |
16 | | other infamous crime; or the respondent has
infected the |
17 | | other with a sexually transmitted
disease. "Excessive use |
18 | | of
addictive drugs", as used in this Section, refers to use |
19 | | of an addictive
drug by a person when using the drug |
20 | | becomes a controlling or a dominant
purpose of his life; or
|
21 | | (2) That the spouses have lived separate and apart for |
22 | | a continuous
period in excess of 2 years and irreconcilable |
23 | | differences have caused the
irretrievable breakdown of the |
24 | | marriage and the court determines that
efforts at |
25 | | reconciliation have failed or that future attempts at
|
26 | | reconciliation would be impracticable and not in the best |
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1 | | interests of the
family. If the spouses have lived separate |
2 | | and apart for a continuous
period of not less than 6 months |
3 | | next preceding the entry of the judgment
dissolving the |
4 | | marriage, as evidenced by testimony or affidavits of the
|
5 | | spouses, the requirement of living separate and apart for a |
6 | | continuous
period in excess of 2 years may be waived upon |
7 | | written stipulation of both
spouses filed with the court. |
8 | | At any time after the parties cease to
cohabit, the |
9 | | following periods shall be included in the period of |
10 | | separation:
|
11 | | (A) any period of cohabitation during which the |
12 | | parties attempted in
good faith to reconcile and |
13 | | participated in marriage counseling under the
guidance |
14 | | of any of the following: a psychiatrist, a clinical |
15 | | psychologist,
a clinical social worker, a marriage and |
16 | | family therapist, a person
authorized to provide |
17 | | counseling in accordance with the prescriptions of
any |
18 | | religious denomination, or a person regularly engaged |
19 | | in providing
family or marriage counseling; and
|
20 | | (B) any period of cohabitation under written |
21 | | agreement of the
parties to attempt to reconcile.
|
22 | | In computing the period during which the spouses have lived
|
23 | | separate and apart for purposes of this Section, periods during
|
24 | | which the spouses were living separate and apart prior to
July |
25 | | 1, 1984 are included.
|
26 | | (b) Judgment shall not be entered unless, to the extent it
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1 | | has jurisdiction to do so, the court has considered, approved, |
2 | | reserved
or made provision for the allocation of parental |
3 | | responsibilities child custody , the support of any child of the
|
4 | | marriage entitled to support, the maintenance of either spouse |
5 | | and
the disposition of property. The court shall may enter a |
6 | | judgment for dissolution
that reserves any of these issues |
7 | | either upon (i) agreement of the
parties, or (ii) motion of |
8 | | either party and a finding by the
court that appropriate |
9 | | circumstances exist.
|
10 | | The death of a party subsequent to entry of a judgment for |
11 | | dissolution
but before judgment on reserved issues shall not |
12 | | abate the proceedings.
|
13 | | If any provision of this Section or its application shall |
14 | | be adjudged
unconstitutional or invalid for any reason by any |
15 | | court of competent
jurisdiction, that judgment shall not |
16 | | impair, affect or invalidate any
other provision or application |
17 | | of this Section, which shall remain in full
force and effect.
|
18 | | (Source: P.A. 89-187, eff. 7-19-95.)
|
19 | | (750 ILCS 5/402) (from Ch. 40, par. 402)
|
20 | | Sec. 402. Legal Separation. ) |
21 | | (a) Any person living separate and apart from his or her |
22 | | spouse without
fault may have a remedy for reasonable support |
23 | | and maintenance while they so live apart.
|
24 | | (b) Such action shall be brought in the circuit court of |
25 | | the county in
which the petitioner or respondent resides or in |
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1 | | which the parties last resided together
as husband and wife. In |
2 | | the event the respondent cannot be found within
the State, the |
3 | | action may be brought in the circuit court of the county
in |
4 | | which the petitioner resides. Commencement of the action, |
5 | | temporary
relief and trials shall be the same as in actions for |
6 | | dissolution of marriage , except that temporary relief in an |
7 | | action for legal separation shall be limited to the relief set |
8 | | forth in subdivision (a)(1) and items (ii), (iii), and (iv) of |
9 | | subdivision (a)(2) of Section 501. If the court deems it |
10 | | appropriate to enter a judgment for legal separation, the court |
11 | | shall consider the applicable factors in Section 504 in |
12 | | awarding maintenance. If the court deems it appropriate to |
13 | | enter a judgment for legal separation, the court may approve a |
14 | | property settlement agreement that the parties have requested |
15 | | the court to incorporate into the judgment, subject to the |
16 | | following provisions: . |
17 | | (1) the court may not value or allocate property in the |
18 | | absence of such an agreement; |
19 | | (2) the court may disapprove such an agreement only if |
20 | | it finds that the agreement is unconscionable; and |
21 | | (3) such an agreement is final and non-modifiable.
|
22 | | (c) A proceeding or judgment for legal separation shall not |
23 | | bar either
party from instituting an action for dissolution of |
24 | | marriage, and if the
party so moving has met the requirements |
25 | | of Section 401, a judgment for
dissolution shall be granted. |
26 | | Absent an agreement set forth in a separation agreement that |
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1 | | provides for non-modifiable permanent maintenance, if a party |
2 | | to a judgment for legal separation files an action for |
3 | | dissolution of marriage, the issues of temporary and permanent |
4 | | maintenance shall be decided de novo.
|
5 | | (Source: P.A. 82-716.)
|
6 | | (750 ILCS 5/403) (from Ch. 40, par. 403)
|
7 | | Sec. 403. Pleadings - Commencement - Abolition of Existing |
8 | | Defenses
- Procedure. ) |
9 | | (a) The complaint or petition for dissolution of marriage |
10 | | or legal
separation shall be verified and shall minimally set |
11 | | forth:
|
12 | | (1) the age, occupation and residence of each party and |
13 | | his length
of residence in this State;
|
14 | | (2) the date of the marriage and the place at which it |
15 | | was
registered;
|
16 | | (2.5) whether a petition for dissolution of marriage is |
17 | | pending in
any other county or state;
|
18 | | (3) that the jurisdictional requirements of subsection |
19 | | (a) of
Section 401 have been met and that irreconcilable |
20 | | differences have caused the irretrievable breakdown of the |
21 | | marriage; and that there exist grounds for dissolution of
|
22 | | marriage or legal separation. The petitioner need only |
23 | | allege the name
of the particular grounds relied upon, |
24 | | which shall constitute a legally
sufficient allegation of |
25 | | the grounds; and the respondent shall be
entitled to demand |
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1 | | a bill of particulars prior to trial setting forth
the |
2 | | facts constituting the grounds, if he so chooses. The |
3 | | petition must
also contain:
|
4 | | (4) the names, ages and addresses of all living |
5 | | children of the
marriage and whether a spouse the wife is |
6 | | pregnant;
|
7 | | (5) any arrangements as to support, allocation of |
8 | | parental responsibility custody and visitation of the
|
9 | | children and maintenance of a spouse; and
|
10 | | (6) the relief sought.
|
11 | | (b) Either or both parties to the marriage may initiate the
|
12 | | proceeding.
|
13 | | (c) (Blank). The previously existing defense of |
14 | | recrimination is abolished.
The defense of condonation is |
15 | | abolished only as to condonations
occurring after a proceeding |
16 | | is filed under this Act and after the
court has acquired |
17 | | jurisdiction over the respondent.
|
18 | | (d) The court may join additional parties necessary and |
19 | | proper for
the exercise of its authority under this Act.
|
20 | | (e) Contested trials shall be on a bifurcated basis with |
21 | | the issue of whether irreconcilable differences have caused the |
22 | | irretrievable breakdown of the marriage, as described in |
23 | | Section 401, grounds
being tried first , regardless of whether |
24 | | that issue is contested or uncontested . Upon the court |
25 | | determining that irreconcilable differences have caused the |
26 | | irretrievable breakdown of the marriage the grounds exist ,
the |
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1 | | court may allow additional time for the
parties to settle
|
2 | | amicably the remaining issues before resuming the trial, or may
|
3 | | proceed immediately to trial on the
remaining issues. The court |
4 | | has the discretion to use the date of the trial or such other |
5 | | date as agreed upon by the parties, or ordered by the court |
6 | | within its discretion, for purposes of determining the value of |
7 | | assets or property. In cases where the requirements of Section |
8 | | 401 the grounds are uncontested and proved
as in cases of |
9 | | default, the trial on all other remaining issues shall proceed
|
10 | | immediately, if so ordered by the court or if the parties so |
11 | | stipulate ,
issue on the pleadings notwithstanding . Except as |
12 | | provided in subsection (b) of Section 401, the court shall |
13 | | enter a judgment of dissolution of marriage, including an order |
14 | | dissolving the marriage, incorporation of a marital settlement |
15 | | agreement if applicable, and any other appropriate findings or |
16 | | orders, only at the conclusion of the case and not after |
17 | | hearing only the testimony as to whether irreconcilable |
18 | | differences have caused the irretrievable breakdown of the |
19 | | marriage.
|
20 | | (f) (Blank). Even if no bill of particulars shall have been |
21 | | filed demanding
the specification of the particular facts |
22 | | underlying the allegation of
the grounds, the court shall |
23 | | nonetheless require proper and sufficient
proof of the |
24 | | existence of the grounds.
|
25 | | (Source: P.A. 90-174, eff. 10-1-97.)
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1 | | (750 ILCS 5/404) (from Ch. 40, par. 404)
|
2 | | Sec. 404. Conciliation ; mediation .
|
3 | | (a) If the court concludes that there is a prospect of |
4 | | reconciliation, the
court, at the request of either party, or |
5 | | on its own motion, may order a
conciliation conference. The |
6 | | conciliation conference and counseling shall take
place at the |
7 | | established court conciliation service of that judicial |
8 | | district
or at any similar service or facility where no court |
9 | | conciliation service has
been established.
|
10 | | (b) The facts adduced at any conciliation conference |
11 | | resulting from a
referral hereunder, shall not be considered in |
12 | | the adjudication of a pending
or subsequent action, nor shall |
13 | | any report resulting from such conference
become part of the |
14 | | record of the case unless the parties have stipulated
in |
15 | | writing to the contrary.
|
16 | | The court, upon good cause shown, may prohibit |
17 | | conciliation , mediation or
other process that requires the |
18 | | parties to meet and confer without counsel.
|
19 | | (Source: P.A. 87-1255.)
|
20 | | (750 ILCS 5/405) (from Ch. 40, par. 405)
|
21 | | Sec. 405. Hearing on Default - Notice. ) If the respondent |
22 | | is in default,
the court shall proceed to hear the cause upon |
23 | | testimony of petitioner taken
in open court, and in no case of |
24 | | default shall the court grant a dissolution
of marriage or |
25 | | legal separation or declaration of invalidity of marriage,
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1 | | unless the judge is satisfied that all proper means have been |
2 | | taken to notify
the respondent of the pendency of the suit. |
3 | | Whenever the judge is satisfied
that the interests of the |
4 | | respondent require it, the court may order such
additional |
5 | | notice as may be required. All of the provisions of the Code of |
6 | | Civil Procedure relating to default hearings are applicable to |
7 | | hearings on default.
|
8 | | (Source: P.A. 80-923.)
|
9 | | (750 ILCS 5/409) (from Ch. 40, par. 409)
|
10 | | Sec. 409. Proof of Foreign Marriage. ) A marriage which may |
11 | | have been solemnized
celebrated or had in any
foreign state or |
12 | | country, may be proved by the acknowledgment of the parties,
|
13 | | their cohabitation, and
other evidence. Certified copies of |
14 | | records of a marriage performed in any foreign state or country |
15 | | obtained from an authorized state governmental unit, embassy, |
16 | | or consulate may be admitted as an exception to the hearsay |
17 | | rule circumstantial testimony .
|
18 | | (Source: P.A. 80-923.)
|
19 | | (750 ILCS 5/411) (from Ch. 40, par. 411)
|
20 | | Sec. 411. Commencement of Action. ) |
21 | | (a) Actions for dissolution of
marriage or legal separation |
22 | | shall be commenced as in other civil cases or,
at the option of |
23 | | petitioner, by filing a praecipe for summons with the
clerk of |
24 | | the court and paying the regular filing fees, in which latter
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1 | | case, a petition shall be filed within 6 months thereafter , or |
2 | | any extension for
good cause shown granted by the court .
|
3 | | (b) When a praecipe for summons is filed without the |
4 | | petition, the summons
shall recite that petitioner has |
5 | | commenced suit for dissolution of marriage
or legal separation |
6 | | and shall require the respondent to file his or her
appearance |
7 | | not later than 30 days from the day the summons is served and |
8 | | to
plead to the petitioner's petition within 30 days from the |
9 | | day the petition is filed.
|
10 | | Until a petition has been filed, the court, pursuant to |
11 | | subsections (c)
and (d) herein, may dismiss the suit, order the |
12 | | filing of a petition,
or grant leave to the respondent to file |
13 | | a petition in the nature of a
counter petition.
|
14 | | After the filing of the petition, the party filing the same |
15 | | shall, within
2 days, serve a copy thereof upon the other |
16 | | party, in the manner provided
by rule of the Supreme Court for |
17 | | service of notices in other civil cases.
|
18 | | (c) Unless a respondent voluntarily files an appearance, a |
19 | | praecipe
for summons filed without the petition shall be served |
20 | | on the respondent
not later than 30 days after its issuance, |
21 | | and upon failure to obtain
service upon the respondent within |
22 | | the 30 day period, or any extension for
good cause shown |
23 | | granted by the court, the court shall dismiss the suit.
|
24 | | (d) An action for dissolution of marriage or legal |
25 | | separation
commenced by the filing a praecipe for summons |
26 | | without the petition may shall
be dismissed if unless a |
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1 | | petition for dissolution of marriage or legal
separation has |
2 | | not been filed within 6 months after the commencement of the |
3 | | action or within the extension granted under subsection (a) of |
4 | | this Section .
|
5 | | (e) The filing of a praecipe for summons under this Section |
6 | | constitutes the commencement of an action that serves as |
7 | | grounds for involuntary dismissal under subdivision (a)(3) of |
8 | | Section 2-619 of the Code of Civil Procedure of a subsequently |
9 | | filed petition for dissolution of marriage or legal
separation |
10 | | in another county. |
11 | | (Source: P.A. 86-630.)
|
12 | | (750 ILCS 5/413) (from Ch. 40, par. 413)
|
13 | | Sec. 413. Judgment. ) |
14 | | (a) A judgment of dissolution
of marriage or of legal |
15 | | separation or of declaration of invalidity of marriage shall be |
16 | | entered within 60 days of the closing of proofs; however, if |
17 | | the court enters an order specifying good cause as to why the |
18 | | court needs an additional 30 days, the judgment shall be |
19 | | entered within 90 days of the closing of proofs, including any |
20 | | hearing under subsection (j) of Section 503 of this Act and |
21 | | submission of closing arguments. A judgment of dissolution
of |
22 | | marriage or of legal separation or of declaration of invalidity |
23 | | of marriage is final
when entered, subject to the right of |
24 | | appeal. An appeal from the judgment
of dissolution of marriage |
25 | | that does not challenge the finding as to grounds
does not |
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1 | | delay the finality
of that provision of the judgment which |
2 | | dissolves the marriage, beyond the time for
appealing from that |
3 | | provision, and either of the parties may remarry pending |
4 | | appeal.
An order requiring maintenance or support of a spouse
|
5 | | or a minor
child or children entered under this Act or any |
6 | | other law of this State shall not be suspended or the |
7 | | enforcement thereof stayed pending
the filing and resolution of |
8 | | post-judgment motions or an appeal.
|
9 | | (b) The clerk of the court shall give notice of the entry |
10 | | of a judgment of dissolution
of marriage or legal separation or |
11 | | a declaration of invalidity of marriage:
|
12 | | (1) if the marriage is registered in this State, to the |
13 | | county clerk of the county
where the marriage is |
14 | | registered, who shall enter the fact of dissolution
of |
15 | | marriage or legal
separation or declaration of invalidity |
16 | | of marriage in the marriage registry;
and within 45 days |
17 | | after the close
of the month in which the judgment is |
18 | | entered, the
clerk shall forward
the certificate to the |
19 | | Department of Public Health on a form furnished by the
|
20 | | Department; or
|
21 | | (2) if the marriage is registered in another |
22 | | jurisdiction, to the
appropriate official of that |
23 | | jurisdiction, with the request that he enter the fact of
|
24 | | dissolution of marriage or legal separation or declaration |
25 | | of invalidity
of marriage in the appropriate record.
|
26 | | (c) Upon request by a wife whose marriage is dissolved or |
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1 | | declared
invalid, the court shall order her maiden name or a |
2 | | former name restored.
|
3 | | (d) A judgment of dissolution of marriage or legal |
4 | | separation, if made, shall
be awarded to both of the parties, |
5 | | and shall provide that it affects the
status previously
|
6 | | existing between the parties in the manner adjudged.
|
7 | | (Source: P.A. 96-1072, eff. 1-1-11.)
|
8 | | (750 ILCS 5/452)
|
9 | | Sec. 452. Petition. The parties to a dissolution proceeding |
10 | | may file a
joint petition for simplified dissolution if they |
11 | | certify that all of the
following conditions exist when the |
12 | | proceeding is commenced:
|
13 | | (a) Neither party is dependent on the other party for |
14 | | support or each
party is willing to waive the right to |
15 | | support; and the parties understand
that consultation with |
16 | | attorneys may help them determine eligibility for
spousal |
17 | | support.
|
18 | | (b) Either party has met the residency requirement of |
19 | | Section 401 of this
Act.
|
20 | | (c) The requirements of Section 401 regarding |
21 | | residence or military presence and proof of irreconcilable |
22 | | differences have been met. Irreconcilable differences have |
23 | | caused the irretrievable breakdown
of the marriage and the |
24 | | parties have been separated 6 months or more and
efforts at |
25 | | reconciliation have failed or future attempts at |
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1 | | reconciliation
would be impracticable and not in the best |
2 | | interests of the family.
|
3 | | (d) No children were born of the relationship of the |
4 | | parties or
adopted by the parties during the marriage, and |
5 | | the wife, to her knowledge,
is not pregnant by the husband.
|
6 | | (e) The duration of the marriage does not exceed 8 |
7 | | years.
|
8 | | (f) Neither party has any interest in real property or |
9 | | retirement benefits unless the retirement benefits are |
10 | | exclusively held in individual retirement accounts and the |
11 | | combined value of the accounts is less than $10,000 .
|
12 | | (g) The parties waive any rights to maintenance.
|
13 | | (h) The total fair market value of all marital |
14 | | property, after
deducting all encumbrances, is less than |
15 | | $50,000 $10,000 , the
combined gross annualized income from |
16 | | all sources is less than
$60,000 $35,000 , and neither party |
17 | | has a gross annualized income from all sources
in excess of |
18 | | $30,000 $20,000 .
|
19 | | (i) The parties have disclosed to each other all assets |
20 | | and liabilities and their tax
returns for all years of the |
21 | | marriage.
|
22 | | (j) The parties have executed a written agreement |
23 | | dividing all assets
in excess of $100 in value and |
24 | | allocating responsibility for debts and
liabilities |
25 | | between the parties.
|
26 | | (Source: P.A. 90-731, eff. 7-1-99.)
|
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1 | | (750 ILCS 5/453)
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2 | | Sec. 453. Procedure; Judgment. The parties shall use the |
3 | | forms , including a form for the affidavit required under |
4 | | Section
454,
provided by the circuit court clerk, and the clerk |
5 | | shall submit the
petition to the court. The court shall |
6 | | expeditiously consider the cause.
Both parties shall appear in |
7 | | person before the court and, if the court so
directs, testify. |
8 | | The court, after examination of the petition and the parties
|
9 | | and finding the agreement of the parties not unconscionable, |
10 | | shall enter a
judgment granting the dissolution if the |
11 | | requirements of this Part IV-A have
been met and the parties |
12 | | have submitted the affidavit required under Section
454. No |
13 | | transcript of proceedings shall be required.
|
14 | | (Source: P.A. 88-39.)
|
15 | | (750 ILCS 5/501) (from Ch. 40, par. 501)
|
16 | | Sec. 501. Temporary Relief. ) In all proceedings under this |
17 | | Act,
temporary relief shall be as follows:
|
18 | | (a) Either party may petition or move for:
|
19 | | (1) temporary maintenance or temporary support of a |
20 | | child of the
marriage entitled to support, accompanied by |
21 | | an affidavit as to the
factual basis for the relief |
22 | | requested . One form of financial affidavit, as determined |
23 | | by the Supreme Court, shall be used statewide. The |
24 | | financial affidavit shall be supported by documentary |
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1 | | evidence including, but not limited to, income tax returns, |
2 | | pay stubs, and banking statements. Unless the court |
3 | | otherwise directs, any affidavit or supporting documentary |
4 | | evidence submitted pursuant
to this paragraph shall not be |
5 | | made
part of the public record of the proceedings but shall |
6 | | be available to
the court or an appellate court in which |
7 | | the proceedings are subject to
review, to the parties, |
8 | | their
attorneys, and such other persons as the court
may |
9 | | direct. Upon motion of a party, a court may hold a hearing |
10 | | to determine whether and why there is a disparity between a |
11 | | party's sworn affidavit and the supporting documentation. |
12 | | If a party intentionally or recklessly files an inaccurate |
13 | | or misleading financial affidavit, the court shall impose |
14 | | significant penalties and sanctions including, but not |
15 | | limited to, costs and attorney's fees ;
|
16 | | (2) a temporary restraining order or preliminary |
17 | | injunction, accompanied
by affidavit showing a
factual |
18 | | basis for any of the following relief:
|
19 | | (i) restraining any person from transferring, |
20 | | encumbering,
concealing or otherwise disposing of any |
21 | | property except in the usual
course of business or for |
22 | | the necessities of life, and, if so
restrained, |
23 | | requiring him to notify the moving party and his |
24 | | attorney of
any proposed extraordinary expenditures |
25 | | made after the order is issued; however, an order need |
26 | | not include an exception for transferring, |
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1 | | encumbering,
or otherwise disposing of property in the |
2 | | usual course of business or for the necessities of life |
3 | | if the court enters appropriate orders that enable the |
4 | | parties to pay their necessary
personal and business |
5 | | expenses including, but not limited to, appropriate |
6 | | professionals to assist the court pursuant to |
7 | | subsection (l) of Section 503 to administer the payment |
8 | | and accounting of such living and business expenses;
|
9 | | (ii) enjoining a party from removing a child from |
10 | | the jurisdiction
of the court;
|
11 | | (iii) enjoining a party from striking or |
12 | | interfering with the
personal liberty of the other |
13 | | party or of any child; or
|
14 | | (iv) providing other injunctive relief proper in |
15 | | the circumstances;
or
|
16 | | (3) other appropriate temporary relief including, in |
17 | | the discretion of the court, ordering the purchase or sale |
18 | | of assets and requiring that a party or parties borrow |
19 | | funds in the appropriate circumstances .
|
20 | | Issues concerning temporary maintenance or temporary |
21 | | support of a child entitled to support shall be dealt with on a |
22 | | summary basis based on allocated parenting time, financial |
23 | | affidavits, tax returns, pay stubs, banking statements, and |
24 | | other
relevant documentation, except an evidentiary hearing |
25 | | may be held upon a showing of good cause. If a party |
26 | | intentionally or recklessly files an inaccurate or misleading |
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1 | | financial affidavit, the court shall impose significant |
2 | | penalties and sanctions including, but not limited to, costs |
3 | | and attorney's fees resulting from the improper |
4 | | representation. |
5 | | (b) The court may issue a temporary restraining order |
6 | | without
requiring notice to the other party only if it finds, |
7 | | on the basis of
the moving affidavit or other evidence, that |
8 | | irreparable injury will
result to the moving party if no order |
9 | | is issued until the time for
responding has elapsed.
|
10 | | (c) A response hereunder may be filed within 21 days after |
11 | | service
of notice of motion or at the time specified in the |
12 | | temporary
restraining order.
|
13 | | (c-1) As used in this subsection (c-1), "interim attorney's |
14 | | fees and
costs" means attorney's fees and costs
assessed
from |
15 | | time to time while a case is pending, in favor of the |
16 | | petitioning party's
current counsel, for reasonable fees and |
17 | | costs either already incurred or to be
incurred, and "interim |
18 | | award" means an award of interim attorney's fees and
costs. |
19 | | Interim awards shall be governed by the following:
|
20 | | (1) Except for good cause shown, a proceeding for (or |
21 | | relating to) interim
attorney's fees and costs in a |
22 | | pre-judgment dissolution proceeding shall be |
23 | | nonevidentiary and summary in nature. All hearings for or |
24 | | relating to interim attorney's fees and costs under this |
25 | | subsection shall be scheduled expeditiously by the court. |
26 | | When a party files a petition for interim attorney's fees |
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1 | | and
costs supported by one or more
affidavits that |
2 | | delineate relevant factors, the court (or a hearing |
3 | | officer)
shall assess an interim award after affording the |
4 | | opposing party a reasonable
opportunity to file a |
5 | | responsive pleading. A responsive pleading shall set out
|
6 | | the amount of each retainer or other payment or payments, |
7 | | or both, previously
paid to the responding party's counsel |
8 | | by or on behalf of the responding party. A responsive |
9 | | pleading shall include costs incurred, and shall indicate |
10 | | whether the costs are paid or unpaid.
In assessing an
|
11 | | interim award, the court shall consider all relevant |
12 | | factors, as presented,
that appear reasonable and |
13 | | necessary, including to the extent applicable:
|
14 | | (A) the income and property of each party, |
15 | | including alleged marital
property within the sole |
16 | | control of one party and alleged non-marital property
|
17 | | within access to a party;
|
18 | | (B) the needs of each party;
|
19 | | (C) the realistic earning capacity of each party;
|
20 | | (D) any impairment to present earning capacity of |
21 | | either party,
including
age and physical and emotional |
22 | | health;
|
23 | | (E) the standard of living established during the |
24 | | marriage;
|
25 | | (F) the degree of complexity of the issues, |
26 | | including allocation of parental responsibility |
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1 | | custody , valuation
or division (or both) of closely |
2 | | held businesses, and tax planning, as well as
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3 | | reasonable needs for expert investigations or expert |
4 | | witnesses, or both;
|
5 | | (G) each party's access to relevant information;
|
6 | | (H) the amount of the payment or payments made or |
7 | | reasonably expected to
be made to the attorney for the |
8 | | other party; and
|
9 | | (I) any other factor that the court expressly finds |
10 | | to be just and
equitable.
|
11 | | (2) Any assessment of an interim award (including one |
12 | | pursuant to an
agreed
order) shall be without prejudice to |
13 | | any final allocation and without prejudice
as to any claim |
14 | | or right of either party or any counsel of record at the |
15 | | time
of the award. Any such claim or right may be presented |
16 | | by the appropriate
party or counsel at a hearing on |
17 | | contribution under subsection (j) of Section
503 or a |
18 | | hearing on counsel's fees under subsection (c) of Section |
19 | | 508. Unless
otherwise ordered by the court at the final |
20 | | hearing between the parties or in a
hearing under |
21 | | subsection (j) of Section 503 or subsection (c) of
Section |
22 | | 508, interim awards, as well as the aggregate of all other |
23 | | payments
by each party
to
counsel and related payments to |
24 | | third parties, shall be deemed to have been
advances from |
25 | | the parties' marital estate. Any portion of any interim |
26 | | award
constituting an overpayment shall be remitted back to |
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1 | | the appropriate party or
parties, or, alternatively, to |
2 | | successor counsel, as the court determines and
directs, |
3 | | after notice in a form designated by the Supreme Court. An |
4 | | order for the award of interim attorney's fees shall be a |
5 | | standardized form order and labeled "Interim Fee Award |
6 | | Order" .
|
7 | | (3) In any proceeding under this subsection (c-1), the |
8 | | court (or hearing
officer) shall assess an interim award |
9 | | against an opposing party in an
amount necessary to enable |
10 | | the petitioning party to participate adequately in
the |
11 | | litigation, upon findings that the party from whom |
12 | | attorney's fees and
costs are sought has the financial |
13 | | ability to pay reasonable amounts and that
the party |
14 | | seeking attorney's fees and costs lacks sufficient access |
15 | | to assets
or income to pay reasonable amounts. In |
16 | | determining an award, the
court shall consider whether |
17 | | adequate participation in the litigation requires
|
18 | | expenditure of more fees and costs for a party that is not |
19 | | in control of assets
or relevant information. Except for |
20 | | good cause shown, an interim award shall
not be less than |
21 | | payments made or reasonably expected to be made to the |
22 | | counsel
for the other party. If the court finds that both |
23 | | parties
lack financial ability or access to assets or |
24 | | income for reasonable attorney's
fees and costs, the court |
25 | | (or hearing officer) shall enter an order that
allocates |
26 | | available funds for each party's counsel, including |
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1 | | retainers or
interim payments, or both, previously paid, in |
2 | | a manner that achieves
substantial parity between the |
3 | | parties.
|
4 | | (4) The changes to this Section 501 made by this |
5 | | amendatory Act of 1996
apply to cases pending on or after |
6 | | June 1, 1997, except as otherwise provided
in Section 508.
|
7 | | (c-2) Allocation of use of marital residence. Where
there |
8 | | is on file a verified complaint or verified petition seeking
|
9 | | temporary eviction from the marital residence, the court may, |
10 | | during the
pendency of the proceeding, only in cases where the |
11 | | physical or mental well-being of either spouse or
his or her |
12 | | children is jeopardized by occupancy of the marital residence |
13 | | by both
spouses, and only upon due notice and full hearing, |
14 | | unless waived by the
court on good cause shown, enter orders |
15 | | granting the exclusive possession of the marital residence to |
16 | | either spouse,
by eviction from, or restoration of, the marital |
17 | | residence, until the final
determination of the cause pursuant |
18 | | to the factors listed in Section 602.7 of this Act. No such |
19 | | order shall in any manner affect any
estate in homestead |
20 | | property of either party. In entering orders under this |
21 | | subsection (c-2), the court shall balance hardships to the |
22 | | parties. |
23 | | (d) A temporary order entered under this Section:
|
24 | | (1) does not prejudice the rights of the parties or the |
25 | | child which
are to be adjudicated at subsequent hearings in |
26 | | the proceeding;
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1 | | (2) may be revoked or modified before final judgment, |
2 | | on a showing
by affidavit and upon hearing; and
|
3 | | (3) terminates when the final judgment is entered or |
4 | | when the
petition for dissolution of marriage or legal |
5 | | separation or declaration
of invalidity of marriage is |
6 | | dismissed.
|
7 | | (e) The fees or costs of mediation shall
be borne by the |
8 | | parties and may be assessed by the court as it deems equitable |
9 | | without prejudice and are subject to reallocation at the |
10 | | conclusion of the case. |
11 | | (Source: P.A. 96-583, eff. 1-1-10.)
|
12 | | (750 ILCS 5/501.1) (from Ch. 40, par. 501.1)
|
13 | | Sec. 501.1. Dissolution action stay.
|
14 | | (a) Upon service of a summons and petition or praecipe |
15 | | filed
under the Illinois Marriage and Dissolution of Marriage |
16 | | Act or upon
the filing of the respondent's appearance in the |
17 | | proceeding, whichever first
occurs, a dissolution action stay |
18 | | shall be in effect against both parties
and their agents and |
19 | | employees , without bond or further notice, until a
final |
20 | | judgement is entered, the proceeding is dismissed, or until |
21 | | further
order of the court:
|
22 | | (1) restraining both parties from transferring, |
23 | | encumbering, concealing,
destroying, spending, damaging, or in |
24 | | any way disposing of any property,
without the consent of the |
25 | | other party or an order of the court, except in
the usual |
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1 | | course of business, for the necessities of life, or for
|
2 | | reasonable costs, expenses, and attorney's fees arising from |
3 | | the
proceeding, as well as requiring each party to provide |
4 | | written notice to
the other party and his or her attorney of |
5 | | any proposed extraordinary
expenditure or transaction;
|
6 | |
(1) (2) restraining both parties from physically |
7 | | abusing, harassing,
intimidating, striking, or interfering |
8 | | with the personal liberty of the
other party or the minor |
9 | | children of either party; and
|
10 | |
(2) (3) restraining both parties from removing any |
11 | | minor child of either
party from the State of Illinois or |
12 | | from concealing any such child from the
other party, |
13 | | without the consent of the other party or an order of the |
14 | | court.
|
15 | | The restraint provided in this subsection (a) does not |
16 | | operate to make
unavailable any of the remedies provided in the |
17 | | Illinois Domestic Violence Act
of 1986.
|
18 | | A restraint of the parties' actions under this Section does |
19 | | not
affect the rights of a bona fide purchaser or mortgagee |
20 | | whose interest in
real property or whose beneficial interest in |
21 | | real property under an
Illinois land trust was acquired before |
22 | | the filing of a lis pendens
notice under Section 2-1901 of the |
23 | | Code of Civil Procedure.
|
24 | | (b) (Blank). Notice of any proposed extraordinary |
25 | | expenditure or
transaction, as required by subsection (a), |
26 | | shall be given as soon as
practicable, but not less than 7 days |
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1 | | before the proposed date
for the carrying out or commencement |
2 | | of the carrying out of the
extraordinary expenditure or |
3 | | transaction, except in an emergency, in
which event notice |
4 | | shall be given as soon as practicable under the
circumstances. |
5 | | If proper notice is given and if the party receiving the
notice |
6 | | does not object by filing a petition for injunctive relief |
7 | | under
the Code of Civil Procedure within 7 days of receipt of |
8 | | the notice, the
carrying out of the proposed extraordinary |
9 | | expenditure or transaction is
not a violation of the |
10 | | dissolution action stay. The dissolution action
stay shall |
11 | | remain in full force and effect against both parties for 14 |
12 | | days
after the date of filing of a petition for injunctive |
13 | | relief by the
objecting party (or a shorter period if the court |
14 | | so orders); and no
extension beyond that 14 day period shall be |
15 | | granted by the court. For
good cause shown, a party may file a |
16 | | petition for a reduction in time with
respect to any 7 day |
17 | | notice requirement under this subsection.
|
18 | | (c) (Blank). A party making any extraordinary expenditure |
19 | | or carrying out
any extraordinary transaction after a |
20 | | dissolution action stay is in
effect shall account promptly to |
21 | | the court and to the other party for all
of those expenditures |
22 | | and transactions. This obligation to account applies
|
23 | | throughout the pendency of the proceeding, irrespective of (i) |
24 | | any notice
given by any party as to any proposed extraordinary |
25 | | expenditure or
transaction, (ii) any filing of an objection and |
26 | | petition under this
Section or the absence of any such filing, |
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1 | | or (iii) any court ruling as to
an issue presented to it by |
2 | | either party.
|
3 | | (d) (Blank). If the party making an extraordinary |
4 | | expenditure or transaction
fails to provide proper notice or if |
5 | | despite proper notice the other
party filed a petition and |
6 | | prevailed on that petition, and the
extraordinary expenditure |
7 | | or transaction results in a loss of income or
reduction in the |
8 | | amount or in the value of property, there is a
presumption of |
9 | | dissipation of property, equal to the amount of the loss or
|
10 | | reduction, charged against the party for purposes of property
|
11 | | distribution under Section 503.
|
12 | | (e) In a proceeding filed under this Act, the summons shall |
13 | | provide
notice of the entry of the automatic dissolution action |
14 | | stay in a form as
required by applicable rules.
|
15 | | (Source: P.A. 87-881; 88-24.)
|
16 | | (750 ILCS 5/502) (from Ch. 40, par. 502)
|
17 | | Sec. 502. Agreement. |
18 | | (a) To promote amicable settlement
of disputes between
|
19 | | parties to a marriage attendant upon the dissolution of their |
20 | | marriage,
the parties may enter
into an a written or oral |
21 | | agreement containing provisions for
disposition of any
|
22 | | property owned by either of them, maintenance of either of |
23 | | them , and support,
parental responsibility allocation custody |
24 | | and visitation
of their children , and support of their children |
25 | | as provided in Section 513 after
the children attain majority. |
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1 | | Any agreement pursuant to this Section must be in writing, |
2 | | except for good cause shown with the approval of the court, |
3 | | before proceeding to an oral prove up .
|
4 | | (b) The terms of the agreement, except those providing for |
5 | | the support and parental responsibility allocation ,
custody |
6 | | and visitation of children, are binding upon the court unless |
7 | | it finds, after
considering the economic circumstances of the |
8 | | parties and any other relevant evidence
produced by the |
9 | | parties, on their own motion or on request of the court,
that |
10 | | the
agreement is unconscionable. The terms of the agreement |
11 | | incorporated into the judgment are binding if there is any |
12 | | conflict between the terms of the agreement and any testimony |
13 | | made at an uncontested prove-up hearing on the grounds or the |
14 | | substance of the agreement.
|
15 | | (c) If the court finds the agreement unconscionable,
it may |
16 | | request the parties to submit a revised agreement
or upon |
17 | | hearing, may make orders
for the disposition of property, |
18 | | maintenance, child support and other matters.
|
19 | | (d) Unless the agreement provides to the contrary, its
|
20 | | terms shall be set forth
in the judgment, and the parties shall |
21 | | be ordered to perform under such
terms, or if the agreement
|
22 | | provides that its terms shall not be set forth in the judgment, |
23 | | the judgment shall
identify the agreement and state that the |
24 | | court has approved its terms.
|
25 | | (e) Terms of the agreement set forth in the judgment are |
26 | | enforceable by
all remedies available for enforcement
of a |
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1 | | judgment, including contempt, and are enforceable as contract |
2 | | terms.
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3 | | (f) Child Except for terms concerning the support, support |
4 | | of children as provided in Section 513 after
the children |
5 | | attain majority, and parental responsibility allocation of |
6 | | children may be modified upon a showing of a substantial change |
7 | | in circumstances. The parties may provide that maintenance is |
8 | | non-modifiable in amount, duration, or both. If the parties do |
9 | | not provide that maintenance is non-modifiable in amount, |
10 | | duration, or both, then those terms are modifiable upon a |
11 | | substantial change of circumstances. Property provisions of an |
12 | | agreement are never modifiable. The custody or visitation of |
13 | | children,
the judgment may expressly preclude or limit |
14 | | modification of other terms set forth in the
judgment if the |
15 | | agreement so provides. Otherwise, terms
of an agreement
set |
16 | | forth in the judgment are automatically modified by |
17 | | modification of the judgment.
|
18 | | (Source: P.A. 83-216.)
|
19 | | (750 ILCS 5/503) (from Ch. 40, par. 503)
|
20 | | Sec. 503. Disposition of property and debts .
|
21 | | (a) For purposes of this Act, "marital property" means all |
22 | | property , including debts and other obligations, acquired
by |
23 | | either spouse subsequent to the marriage, except the following, |
24 | | which is
known as "non-marital property":
|
25 | | (1) property acquired by gift, legacy or descent or |
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1 | | property acquired in exchange for such property ;
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2 | | (2) property acquired in exchange for property |
3 | | acquired before the
marriage or in exchange for property |
4 | | acquired by gift, legacy or descent ;
|
5 | | (3) property acquired by a spouse after a judgment of |
6 | | legal separation;
|
7 | | (4) property excluded by valid agreement of the |
8 | | parties , including
a premarital agreement or a postnuptial |
9 | | agreement ;
|
10 | | (5) any judgment or property obtained by judgment |
11 | | awarded to a spouse
from the other spouse except, however, |
12 | | when a spouse is required to sue the other spouse in order |
13 | | to obtain insurance coverage or otherwise recover from a |
14 | | third party and the recovery is directly related to amounts |
15 | | advanced by the marital estate, the judgment shall be |
16 | | considered marital property ;
|
17 | | (6) property acquired before the marriage , except as it |
18 | | relates to retirement plans that may have both marital and |
19 | | non-marital characteristics ;
|
20 | | (6.5) all property acquired by a spouse by
the sole use |
21 | | of non-marital property as collateral for a loan that then |
22 | | is used to acquire property
during the marriage; to the |
23 | | extent that the marital estate repays any portion of the |
24 | | loan, it shall be considered a contribution from the |
25 | | marital estate to the non-marital estate subject to |
26 | | reimbursement;
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1 | | (7) the increase in value of non-marital property |
2 | | acquired by a method listed in
paragraphs (1) through (6) |
3 | | of this subsection , irrespective of whether the
increase |
4 | | results from a contribution of marital property, |
5 | | non-marital property,
the personal effort of a spouse, or |
6 | | otherwise, subject to the right of
reimbursement provided |
7 | | in subsection (c) of this Section; and
|
8 | | (8) income from property acquired by a method listed in |
9 | | paragraphs (1)
through (7) of this subsection if the income |
10 | | is not attributable to the
personal effort of a spouse.
|
11 | | Property acquired prior to a marriage that would otherwise |
12 | | be non-marital property shall not be deemed to be marital |
13 | | property solely because the property was acquired in |
14 | | contemplation of marriage. |
15 | | The court shall make specific factual findings as to its |
16 | | classification of assets as marital or non-marital property, |
17 | | values, and other factual findings supporting its property |
18 | | award. |
19 | | (b)(1) For purposes of distribution of property pursuant to |
20 | | this
Section , all property acquired by either spouse after the |
21 | | marriage and before a
judgment of dissolution of marriage or |
22 | | declaration of invalidity of marriage is presumed marital |
23 | | property. This presumption includes ,
including non-marital |
24 | | property transferred into some form of co-ownership
between the |
25 | | spouses, is presumed to be marital property, regardless of |
26 | | whether
title is held individually or by the spouses in some |
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1 | | form of co-ownership such
as joint tenancy, tenancy in common, |
2 | | tenancy by the entirety, or community
property. A spouse may |
3 | | overcome the The presumption of marital property is overcome by |
4 | | a showing through clear and convincing evidence that
the |
5 | | property was acquired by a method listed in subsection (a) of |
6 | | this Section or was done for estate or tax planning purposes or |
7 | | for other reasons that establish that the transfer was not |
8 | | intended to be a gift .
|
9 | | (2) For purposes of distribution of property pursuant to |
10 | | this Section,
all pension benefits (including pension benefits |
11 | | under the Illinois Pension
Code , defined benefit plans, defined |
12 | | contribution plans and accounts, individual retirement |
13 | | accounts, and non-qualified plans ) acquired by or participated |
14 | | in by either spouse after the marriage and before a judgment of
|
15 | | dissolution of marriage or legal separation or declaration of |
16 | | invalidity of the marriage are
presumed to be marital property , |
17 | | regardless of which spouse participates in the
pension plan . A |
18 | | spouse may overcome the The presumption that these pension |
19 | | benefits are marital property
is overcome by a showing through |
20 | | clear and convincing evidence that the pension benefits were |
21 | | acquired by a method
listed in subsection (a) of this Section. |
22 | | The right to a division of pension
benefits in just proportions |
23 | | under this Section is enforceable under Section
1-119 of the |
24 | | Illinois Pension Code.
|
25 | | The value of pension benefits in a retirement system |
26 | | subject to the Illinois
Pension Code shall be determined in |
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1 | | accordance with the valuation procedures
established by the |
2 | | retirement system.
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3 | | The recognition of pension benefits as marital property and |
4 | | the division of
those benefits pursuant to a Qualified Illinois |
5 | | Domestic Relations Order shall
not be deemed to be a |
6 | | diminishment, alienation, or impairment of those
benefits. The |
7 | | division of pension benefits is an allocation of property in
|
8 | | which each spouse has a species of common ownership.
|
9 | | (3) For purposes of distribution of property under this |
10 | | Section, all stock
options and restricted stock or similar form |
11 | | of benefit granted to either spouse after the marriage and |
12 | | before a judgment of
dissolution of marriage or legal |
13 | | separation or declaration of invalidity of marriage, whether
|
14 | | vested or non-vested or whether their value is ascertainable, |
15 | | are presumed to
be marital property. This presumption of |
16 | | marital property is overcome by a
showing that the stock |
17 | | options or restricted stock or similar form of benefit were |
18 | | acquired by a method listed in subsection
(a) of this Section. |
19 | | The court shall allocate stock options and restricted stock or |
20 | | similar form of benefit between the
parties at the time of the |
21 | | judgment of dissolution of marriage or declaration
of |
22 | | invalidity of marriage recognizing that the value of the stock |
23 | | options and restricted stock or similar form of benefit may
not |
24 | | be then determinable and that the actual division of the |
25 | | options may not
occur until a future date. In making the |
26 | | allocation between the parties, the
court shall consider, in |
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1 | | addition to the factors set forth in subsection (d) of
this |
2 | | Section, the following:
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3 | | (i) All circumstances underlying the grant of the stock |
4 | | option and restricted stock or similar form of benefit |
5 | | including
but not limited to the vesting schedule, whether |
6 | | the grant was for past, present, or future efforts, whether |
7 | | the grant is designed to promote future performance or |
8 | | employment,
or any combination thereof.
|
9 | | (ii) The length of time from the grant of the option to |
10 | | the time the
option is exercisable.
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11 | | (b-5) As to any existing policy of life insurance insuring |
12 | | the life of either spouse, or any interest in such policy, that |
13 | | constitutes marital property, whether whole life, term life, |
14 | | group term life, universal life, or other form of life
|
15 | | insurance policy, and whether or not the value is |
16 | | ascertainable, the court shall allocate ownership, death |
17 | | benefits or the
right to assign death benefits, and the |
18 | | obligation for premium payments, if any, equitably between the |
19 | | parties at the
time of the judgment for dissolution or |
20 | | declaration of invalidity of marriage. |
21 | | (c) Commingled marital and non-marital property shall be |
22 | | treated in
the following manner, unless otherwise agreed by the |
23 | | spouses:
|
24 | | (1)(A) If marital and non-marital property are |
25 | | commingled by one estate being contributed into the other, |
26 | | the following shall apply: |
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1 | | (i) If the contributed property loses its |
2 | | identity, the contributed property transmutes to the |
3 | | estate receiving the property, subject to the |
4 | | provisions of paragraph (2) of this subsection (c). |
5 | | (ii) If the contributed property retains its |
6 | | identity, it does not transmute and remains property of |
7 | | the contributing estate. |
8 | | (B) If marital and non-marital property are commingled |
9 | | into newly acquired property resulting in a loss of |
10 | | identity of the contributing estates, the commingled |
11 | | property shall be deemed transmuted to marital property, |
12 | | subject to the provisions of paragraph (2) of this |
13 | | subsection (c). |
14 | | (2)(A) When one estate of property makes a contribution |
15 | | to another estate of property, the contributing estate |
16 | | shall be reimbursed from the estate receiving the |
17 | | contribution notwithstanding any transmutation. No such |
18 | | reimbursement shall be made with respect to a contribution |
19 | | that is not traceable by clear and convincing evidence or |
20 | | that was a gift. The court may provide for reimbursement |
21 | | out of the marital property to be divided or by imposing a |
22 | | lien against the non-marital property that received the |
23 | | contribution. |
24 | | (B) When a spouse contributes personal effort to |
25 | | non-marital property, it shall be deemed a contribution |
26 | | from the marital estate, which shall receive reimbursement |
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1 | | for the efforts if the efforts are significant and result |
2 | | in substantial appreciation to the non-marital property |
3 | | except that if the marital estate reasonably has been |
4 | | compensated for his or her efforts, it shall not be deemed |
5 | | a contribution to the marital estate and there shall be no |
6 | | reimbursement to the marital estate. The court may provide |
7 | | for reimbursement out of the marital property to be divided |
8 | | or by imposing a lien against the non-marital property |
9 | | which received the contribution.
|
10 | | (1) When marital and non-marital property are |
11 | | commingled by contributing
one estate of property into |
12 | | another resulting in a loss of identity of the
contributed |
13 | | property, the classification of the contributed property |
14 | | is
transmuted to the estate receiving the contribution, |
15 | | subject to the provisions
of paragraph (2) of this |
16 | | subsection; provided that if marital and non-marital
|
17 | | property are commingled into newly acquired property |
18 | | resulting in a loss
of identity of the contributing |
19 | | estates, the commingled property shall be
deemed |
20 | | transmuted to marital property, subject to the provisions |
21 | | of paragraph
(2) of this subsection.
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22 | | (2) When one estate of property makes a contribution to |
23 | | another estate
of property, or when a spouse contributes |
24 | | personal effort to non-marital
property, the contributing |
25 | | estate shall be reimbursed from the estate receiving
the |
26 | | contribution notwithstanding any transmutation; provided, |
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1 | | that no such
reimbursement shall be made with respect to a |
2 | | contribution which is not
retraceable by clear and |
3 | | convincing evidence, or was a gift, or, in the
case of a |
4 | | contribution of personal effort of a spouse to non-marital |
5 | | property,
unless the effort is significant and results in |
6 | | substantial appreciation
of the non-marital property. |
7 | | Personal effort of a spouse shall be deemed
a contribution |
8 | | by the marital estate. The court may provide for |
9 | | reimbursement
out of the marital property to be divided or |
10 | | by imposing a lien against the
non-marital property which |
11 | | received the contribution.
|
12 | | (d) In a proceeding for dissolution of marriage or |
13 | | declaration of invalidity
of marriage, or in a proceeding for |
14 | | disposition of property following
dissolution of marriage by a |
15 | | court that which lacked personal jurisdiction over the
absent |
16 | | spouse or lacked jurisdiction to dispose of the property, the |
17 | | court
shall assign each spouse's non-marital property to that |
18 | | spouse. It also shall
divide the marital property without |
19 | | regard to marital misconduct in just
proportions considering |
20 | | all relevant factors, including:
|
21 | | (1) each party's the contribution of each party to the |
22 | | acquisition, preservation, or
increase or decrease in |
23 | | value of the marital or non-marital property, including
(i) |
24 | | any such decrease attributable to a payment deemed to have |
25 | | been an advance from the parties' marital estate under |
26 | | subsection (c-1)(2) of Section 501 ; and (ii) the |
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1 | | contribution of a spouse as a homemaker or to the family |
2 | | unit; and (iii) whether the contribution is after the |
3 | | commencement of a proceeding for dissolution of marriage or |
4 | | declaration of invalidity of marriage;
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5 | | (2) the dissipation by each party of the marital or |
6 | | non-marital property, provided that a party's claim of |
7 | | dissipation is subject to the following conditions:
|
8 | | (i) a notice of intent to claim dissipation shall |
9 | | be given no later than 60 days
before trial or 30 days |
10 | | after discovery closes, whichever is later; |
11 | | (ii) the notice of intent to claim dissipation |
12 | | shall contain, at a minimum, a date or period of time |
13 | | during which the marriage began undergoing an |
14 | | irretrievable breakdown, an identification of the |
15 | | property dissipated, and a date or period of time |
16 | | during which the dissipation occurred; |
17 | | (iii) a certificate or service of the notice of |
18 | | intent to claim dissipation shall be filed with the |
19 | | clerk of the court and be served pursuant to applicable |
20 | | rules; |
21 | | (iv) no dissipation shall be deemed to have |
22 | | occurred prior to 3 years after the party claiming |
23 | | dissipation knew or should have known of the |
24 | | dissipation, but in no event prior to 5 years before |
25 | | the filing of the petition for dissolution of marriage |
26 | | 5 years before the filing of the petition for |
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1 | | dissolution of marriage, or 3 years after the party
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2 | | claiming dissipation knew or should have known of the |
3 | | dissipation ;
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4 | | (3) the value of the property assigned to each spouse;
|
5 | | (4) the duration of the marriage;
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6 | | (5) the relevant economic circumstances of each spouse |
7 | | when the division
of property is to become effective, |
8 | | including the desirability of awarding
the family home, or |
9 | | the right to live therein for reasonable periods, to the
|
10 | | spouse having the primary residence custody of the |
11 | | children;
|
12 | | (6) any obligations and rights arising from a prior |
13 | | marriage
of either party;
|
14 | | (7) any prenuptial or postnuptial antenuptial |
15 | | agreement of the parties;
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16 | | (8) the age, health, station, occupation, amount and |
17 | | sources of income,
vocational skills, employability, |
18 | | estate, liabilities, and needs of each of the
parties;
|
19 | | (9) the custodial provisions for any children;
|
20 | | (10) whether the apportionment is in lieu of or in |
21 | | addition to
maintenance;
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22 | | (11) the reasonable opportunity of each spouse for |
23 | | future acquisition
of capital assets and income; and
|
24 | | (12) the tax consequences of the property division upon |
25 | | the
respective economic circumstances of the parties.
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26 | | (e) Each spouse has a species of common ownership in the |
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1 | | marital property
which vests at the time dissolution |
2 | | proceedings are commenced and continues
only during the |
3 | | pendency of the action. Any such interest in marital property
|
4 | | shall not encumber that property so as to restrict its |
5 | | transfer, assignment
or conveyance by the title holder unless |
6 | | such title holder is specifically
enjoined from making such |
7 | | transfer, assignment or conveyance.
|
8 | | (f) In a proceeding for dissolution of marriage or |
9 | | declaration of
invalidity of marriage or in a proceeding for |
10 | | disposition of property
following dissolution of marriage by a |
11 | | court that lacked personal
jurisdiction over the absent spouse |
12 | | or lacked jurisdiction to dispose of
the property, the court, |
13 | | in determining the value of the marital and
non-marital |
14 | | property for purposes of dividing the property, has the |
15 | | discretion to use the date of the trial or such other date as |
16 | | agreed upon by the parties, or ordered by the court within its |
17 | | discretion, for purposes of determining the value of assets or |
18 | | property shall value the
property as of the date of trial or |
19 | | some other date as close to the date
of trial as is |
20 | | practicable .
|
21 | | (g) The court if necessary to protect and promote the best |
22 | | interests of the
children may set aside a portion of the |
23 | | jointly or separately held
estates of the parties in a separate |
24 | | fund or trust for the support,
maintenance, education, physical |
25 | | and mental health, and general welfare of any minor, dependent,
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26 | | or incompetent child of the parties. In making a determination |
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1 | | under this
subsection, the court may consider, among other |
2 | | things, the conviction of a
party of any of the offenses set |
3 | | forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, |
4 | | 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, |
5 | | 12-15, or 12-16, or Section 12-3.05 except for subdivision |
6 | | (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal |
7 | | Code of 2012 if the
victim is a
child of one or both of the |
8 | | parties, and there is a need for, and cost of,
care, healing |
9 | | and counseling for the child who is the victim of the crime.
|
10 | | (h) Unless specifically directed by a reviewing court, or |
11 | | upon good
cause shown, the court shall not on remand consider |
12 | | any increase or
decrease in the value of any "marital" or |
13 | | "non-marital" property occurring
since the assessment of such |
14 | | property at the original trial or hearing, but
shall use only |
15 | | that assessment made at the original trial or hearing.
|
16 | | (i) The court may make such judgments affecting the marital |
17 | | property
as may be just and may enforce such judgments by |
18 | | ordering a sale of marital
property, with proceeds therefrom to |
19 | | be applied as determined by the court.
|
20 | | (j) After proofs have closed in the final hearing on all |
21 | | other issues
between the parties (or in conjunction with the |
22 | | final hearing, if all parties
so stipulate) and before judgment |
23 | | is entered, a party's petition for
contribution to fees and |
24 | | costs incurred in the proceeding shall be heard and
decided, in |
25 | | accordance with the following provisions:
|
26 | | (1) A petition for contribution, if not filed before |
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1 | | the final hearing
on other issues between the parties, |
2 | | shall be filed no later than 14 30 days after
the closing |
3 | | of proofs in the final hearing or within such other period |
4 | | as the
court orders.
|
5 | | (2) Any award of contribution to one party from the |
6 | | other party shall be
based on the criteria for division of |
7 | | marital property under this Section 503
and, if maintenance |
8 | | has been awarded, on the criteria for an award of
|
9 | | maintenance under Section 504.
|
10 | | (3) The filing of a petition for contribution shall not |
11 | | be deemed to
constitute a waiver of the attorney-client |
12 | | privilege between the petitioning
party and current or |
13 | | former counsel; and such a waiver shall not constitute a
|
14 | | prerequisite to a hearing for contribution. If either |
15 | | party's presentation on
contribution, however, includes |
16 | | evidence within the scope of the
attorney-client |
17 | | privilege, the disclosure or disclosures shall be narrowly
|
18 | | construed and shall not be deemed by the court to |
19 | | constitute a general waiver
of the privilege as to matters |
20 | | beyond the scope of the presentation.
|
21 | | (4) No finding on which a contribution award is based |
22 | | or denied shall be
asserted against counsel or former |
23 | | counsel for purposes of any hearing under
subsection (c) or |
24 | | (e) of Section 508.
|
25 | | (5) A contribution award (payable to either the |
26 | | petitioning
party or the party's counsel, or jointly, as |
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1 | | the court determines) may be in
the form of either a set |
2 | | dollar amount or a percentage of fees and costs (or a
|
3 | | portion of fees and costs) to be subsequently agreed upon |
4 | | by the petitioning
party and counsel or, alternatively, |
5 | | thereafter determined in a hearing
pursuant to subsection |
6 | | (c) of Section 508 or previously or thereafter
determined |
7 | | in an independent proceeding under subsection (e) of |
8 | | Section
508.
|
9 | | (6) The changes to this Section 503 made by this |
10 | | amendatory Act of 1996
apply to cases pending on or after |
11 | | June 1, 1997, except as otherwise provided
in Section 508.
|
12 | | (k) In determining the value of assets or property under |
13 | | this Section, the court shall employ a fair market value |
14 | | standard. The date of valuation for the purposes of division of |
15 | | assets shall be the date of trial or such other date as agreed |
16 | | by the parties or ordered by the court, within its discretion. |
17 | | If the court grants a petition brought under Section 2-1401 of |
18 | | the Code of Civil Procedure, then the court has the discretion |
19 | | to use the date of the trial or such other date as agreed upon |
20 | | by the parties, or ordered by the court within its discretion, |
21 | | for purposes of determining the value of assets or property. |
22 | | (l) The court may seek the advice of financial experts or |
23 | | other professionals, whether or not employed by the court on a |
24 | | regular basis. The advice given shall be in writing and made |
25 | | available by the court to counsel. Counsel may examine as a |
26 | | witness any professional consulted by the court designated as |
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1 | | the court's witness. Professional personnel consulted by the |
2 | | court are subject to subpoena for the purposes of discovery, |
3 | | trial, or both. The court shall allocate the costs and fees of |
4 | | those professional personnel between the parties based upon the |
5 | | financial ability of each party and any other criteria the |
6 | | court considers appropriate, and the allocation is subject to |
7 | | reallocation under subsection (a) of Section 508. Upon the |
8 | | request of any party or upon the court's own motion, the court |
9 | | may conduct a hearing as to the reasonableness of those fees |
10 | | and costs. |
11 | | (m) The changes made to this Section by Public Act 97-941 |
12 | | this amendatory Act of the 97th General Assembly apply only to |
13 | | petitions for dissolution of marriage filed on or after January |
14 | | 1, 2013 ( the effective date of Public Act 97-941) this |
15 | | amendatory Act of the 97th General Assembly . |
16 | | (Source: P.A. 96-583, eff. 1-1-10; 96-1551, Article 1, Section |
17 | | 985, eff. 7-1-11; 96-1551, Article 2, Section 1100, eff. |
18 | | 7-1-11; 97-608, eff. 1-1-12; 97-941, eff. 1-1-13; 97-1109, eff. |
19 | | 1-1-13; 97-1150, eff. 1-25-13; revised 12-10-14.)
|
20 | | (750 ILCS 5/504) (from Ch. 40, par. 504)
|
21 | | Sec. 504. Maintenance.
|
22 | | (a) Entitlement to maintenance. In a proceeding for |
23 | | dissolution of marriage or legal separation or
declaration of |
24 | | invalidity of marriage, or a proceeding for maintenance
|
25 | | following dissolution of the marriage by a court which lacked |
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1 | | personal
jurisdiction over the absent spouse, the court may |
2 | | grant a temporary or
permanent maintenance award for either |
3 | | spouse in amounts and for periods of
time as the court deems |
4 | | just, without regard to marital misconduct, in
gross or for |
5 | | fixed or indefinite periods of time, and the maintenance may
be |
6 | | paid from the income or property of the other spouse. The court |
7 | | shall first determine whether a maintenance award is |
8 | | appropriate, after consideration
of all relevant factors, |
9 | | including:
|
10 | | (1) the income and property of each party, including |
11 | | marital property
apportioned and non-marital property |
12 | | assigned to the party seeking maintenance as well as all |
13 | | financial obligations imposed on the parties as a result of |
14 | | the dissolution of marriage ;
|
15 | | (2) the needs of each party;
|
16 | | (3) the realistic present and future earning capacity |
17 | | of each party;
|
18 | | (4) any impairment of the present and future earning |
19 | | capacity of the
party seeking maintenance due to that party |
20 | | devoting time to domestic
duties or having forgone or |
21 | | delayed education, training,
employment, or
career |
22 | | opportunities due to the marriage;
|
23 | | (5) any impairment of the realistic present or future |
24 | | earning capacity of the party against whom maintenance is |
25 | | sought; |
26 | | (6) (5) the time necessary to enable the party seeking |
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1 | | maintenance to
acquire appropriate education, training, |
2 | | and employment, and whether that
party is able to support |
3 | | himself or herself through appropriate employment
or any |
4 | | parental responsibility arrangements and its effect on the |
5 | | party seeking is the custodian of a child making it |
6 | | appropriate that the custodian not
seek employment;
|
7 | | (7) (6) the standard of living established during the |
8 | | marriage;
|
9 | | (8) (7) the duration of the marriage;
|
10 | | (9) the age, health, station, occupation, amount and |
11 | | sources of income, vocational skills, employability, |
12 | | estate, liabilities, and the needs of each of the (8) the |
13 | | age and the physical and emotional condition of
both |
14 | | parties;
|
15 | | (10) all sources of public and private income |
16 | | including, without limitation, disability and retirement |
17 | | income; |
18 | | (11) (9) the tax consequences of the property division |
19 | | upon the respective
economic circumstances of the parties;
|
20 | | (12) (10) contributions and services by the party |
21 | | seeking maintenance to
the education, training, career or |
22 | | career potential, or license of the
other spouse;
|
23 | | (13) (11) any valid agreement of the parties; and
|
24 | | (14) (12) any other factor that the court expressly |
25 | | finds to be just and
equitable.
|
26 | | (b) (Blank).
|
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1 | | (b-1) Amount and duration of maintenance. If the court |
2 | | determines that a maintenance award is appropriate, the court |
3 | | shall order maintenance in accordance with either paragraph (1) |
4 | | or (2) of this subsection (b-1): |
5 | | (1) Maintenance award in accordance with guidelines. |
6 | | In situations when the combined gross income of the parties |
7 | | is less than $250,000 and the payor has no obligation to |
8 | | pay child support or maintenance or both from a prior |
9 | | relationship no multiple family situation exists , |
10 | | maintenance payable after the date the parties' marriage is |
11 | | dissolved shall be in accordance with subparagraphs (A) and |
12 | | (B) of this paragraph (1), unless the court makes a finding |
13 | | that the application of the guidelines would be |
14 | | inappropriate. |
15 | | (A) The amount of maintenance under this paragraph |
16 | | (1) shall be calculated by taking 30% of the payor's |
17 | | gross income minus 20% of the payee's gross income. The
|
18 | | amount calculated as maintenance, however, when added |
19 | | to the gross income of the payee, may not result in the |
20 | | payee receiving an amount that is in excess of 40% of |
21 | | the combined gross income
of the parties. |
22 | | (B) The duration of an award under this paragraph |
23 | | (1) shall be calculated by multiplying the length of |
24 | | the marriage at the time the action was commenced by |
25 | | whichever of
the following factors applies: 5 0-5 years |
26 | | or less (.20); more than 5 years but less than 10 5-10 |
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1 | | years (.40); 10 years or more but less than 15 10-15
|
2 | | years (.60); or 15 years or more but less than 20 15-20 |
3 | | years (.80). For a marriage of 20 or more years, the |
4 | | court, in its discretion, shall order either permanent |
5 | | maintenance or maintenance for a period equal to the |
6 | | length of the
marriage. |
7 | | (2) Maintenance award not in accordance with |
8 | | guidelines. Any non-guidelines award of maintenance shall |
9 | | be made after the court's consideration of all relevant |
10 | | factors set forth in subsection (a) of this Section. |
11 | | (b-2) Findings. In each case involving the issue of |
12 | | maintenance, the court shall make specific findings of fact, as |
13 | | follows: |
14 | | (1) the court shall state its reasoning for awarding or |
15 | | not awarding maintenance and shall include references to |
16 | | each relevant factor set forth in subsection (a) of this |
17 | | Section; and |
18 | | (2) if the court deviates from otherwise applicable |
19 | | guidelines under paragraph (1) of subsection (b-1), it |
20 | | shall state in its findings the amount of maintenance (if |
21 | | determinable) or duration that would have been required |
22 | | under the guidelines and the reasoning for any variance |
23 | | from the guidelines. |
24 | | (b-3) Gross income. For purposes of this Section, the term |
25 | | "gross income" means all income from all sources, within the |
26 | | scope of that phase in Section 505 of this Act. |
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1 | | (b-4) Unallocated maintenance. Unless the parties |
2 | | otherwise agree, the court may not order unallocated |
3 | | maintenance and child support in any dissolution judgment or in |
4 | | any post-dissolution order. In its discretion, the court may |
5 | | order unallocated maintenance and child support in any |
6 | | pre-dissolution temporary order. |
7 | | (b-4.5) Fixed-term maintenance in marriages of less than 10 |
8 | | years. If a court grants maintenance for a fixed period under |
9 | | subsection (a) of this Section at the conclusion of a case |
10 | | commenced before the tenth anniversary of the marriage, the |
11 | | court may also designate the termination of the period during |
12 | | which this maintenance is to be paid as a "permanent |
13 | | termination". The effect of this designation is that |
14 | | maintenance is barred after the ending date of the period |
15 | | during which maintenance is to be paid. |
16 | | (b-5) Interest on maintenance. Any maintenance obligation |
17 | | including any unallocated maintenance and child support |
18 | | obligation, or any portion of any support obligation, that |
19 | | becomes due and remains unpaid shall accrue simple interest as |
20 | | set forth in Section 505 of this Act.
|
21 | | (b-7) Maintenance judgments. Any new or existing |
22 | | maintenance order including any unallocated maintenance and |
23 | | child support order entered by the court under this Section |
24 | | shall be deemed to be a series of judgments against the person |
25 | | obligated to pay support thereunder. Each such judgment to be |
26 | | in the amount of each payment or installment of support and |
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1 | | each such judgment to be deemed entered as of the date the |
2 | | corresponding payment or installment becomes due under the |
3 | | terms of the support order, except no judgment shall arise as |
4 | | to any installment coming due after the termination of |
5 | | maintenance as provided by Section 510 of the Illinois Marriage |
6 | | and Dissolution of Marriage Act or the provisions of any order |
7 | | for maintenance. Each such judgment shall have the full force, |
8 | | effect and attributes of any other judgment of this State, |
9 | | including the ability to be enforced. Notwithstanding any other |
10 | | State or local law to the contrary, a lien arises by operation |
11 | | of law against the real and personal property of the obligor |
12 | | for each installment of overdue support owed by the obligor. |
13 | | (c) Maintenance during an appeal. The court may grant and |
14 | | enforce the payment of maintenance during
the pendency of an |
15 | | appeal as the court shall deem reasonable and proper.
|
16 | | (d) Maintenance during imprisonment. No maintenance shall |
17 | | accrue during the period in which a party is
imprisoned for |
18 | | failure to comply with the court's order for the payment of
|
19 | | such maintenance.
|
20 | | (e) Fees when maintenance is paid through the clerk. When |
21 | | maintenance is to be paid through the clerk of the court in a
|
22 | | county of 1,000,000 inhabitants or less, the order shall direct |
23 | | the obligor
to pay to the clerk, in addition to the maintenance |
24 | | payments, all fees
imposed by the county board under paragraph |
25 | | (3) of subsection (u) of
Section 27.1 of the Clerks of Courts |
26 | | Act. Unless paid in cash or pursuant
to an order for |
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1 | | withholding, the payment of the fee shall be by a separate
|
2 | | instrument from the support payment and shall be made to the |
3 | | order of
the Clerk.
|
4 | | (f) Maintenance secured by life insurance. An award ordered |
5 | | by a court upon entry of a dissolution judgment or upon entry |
6 | | of an award of maintenance following a reservation of |
7 | | maintenance in a dissolution judgment may be reasonably |
8 | | secured, in whole or in part, by life insurance on the
payor's |
9 | | life on terms as to which the parties agree, or, if they do not |
10 | | agree, on such terms determined by the court,
subject to the |
11 | | following: |
12 | | (1) With respect to existing life insurance, provided |
13 | | the court is apprised through evidence,
stipulation, or |
14 | | otherwise as to level of death benefits, premium, and other |
15 | | relevant
data and makes findings relative thereto, the |
16 | | court may allocate death benefits, the right
to assign |
17 | | death benefits, or the obligation for future premium |
18 | | payments between the
parties as it deems just. |
19 | | (2) To the extent the court determines that its award |
20 | | should be secured, in whole or in part,
by new life |
21 | | insurance on the payor's life, the court may only order: |
22 | | (i) that the payor cooperate on all appropriate |
23 | | steps for the payee to obtain
such new life insurance; |
24 | | and |
25 | | (ii) that the payee, at his or her sole option and |
26 | | expense, may obtain such new life
insurance on the |
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1 | | payor's life up to a maximum level of death benefit |
2 | | coverage,
or descending death benefit coverage, as is |
3 | | set by the court, such level not to exceed a reasonable
|
4 | | amount in light of the court's award, with the payee or |
5 | | the
payee's designee being the beneficiary of such life |
6 | | insurance. |
7 | | In determining the maximum level of death benefit coverage, |
8 | | the court shall take into account all relevant facts and |
9 | | circumstances, including the impact on access to life |
10 | | insurance by the maintenance payor. If in resolving any |
11 | | issues under paragraph (2) of this subsection (f) a court |
12 | | reviews any submitted or proposed application for new |
13 | | insurance on the life of a maintenance payor, the review |
14 | | shall be in camera. |
15 | | (3) A judgment shall expressly set forth that all death |
16 | | benefits paid under life insurance on
a payor's life |
17 | | maintained or obtained pursuant to this subsection to |
18 | | secure
maintenance are designated as excludable from the |
19 | | gross income of the
maintenance payee under Section |
20 | | 71(b)(1)(B) of the Internal Revenue Code, unless an
|
21 | | agreement or stipulation of the parties otherwise |
22 | | provides. |
23 | | (Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12; |
24 | | 97-813, eff. 7-13-12; 98-961, eff. 1-1-15 .)
|
25 | | (750 ILCS 5/505) (from Ch. 40, par. 505)
|
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1 | | Sec. 505. Child support; contempt; penalties.
|
2 | | (a) In a proceeding for dissolution of marriage, legal |
3 | | separation,
declaration of invalidity of marriage, a |
4 | | proceeding for child support
following dissolution of the |
5 | | marriage by a court that lacked personal
jurisdiction over the |
6 | | absent spouse, a proceeding for modification of a
previous |
7 | | order for child support under Section 510 of this Act, or any
|
8 | | proceeding authorized under Section 501 or 601 of this Act, the |
9 | | court may
order either or both parents owing a duty of support |
10 | | to a child of the
marriage to pay an amount reasonable and |
11 | | necessary for the support of the child, without
regard to |
12 | | marital misconduct. The duty of support owed to a child
|
13 | | includes the obligation to provide for the reasonable and |
14 | | necessary
educational, physical, mental and emotional health |
15 | | needs of the child.
For purposes of this Section, the term |
16 | | "child" shall include any child under
age 18 and
any child |
17 | | under age 19 who is still attending high school. For purposes |
18 | | of this Section, the term "supporting parent" means the parent |
19 | | obligated to pay support to the other parent.
|
20 | | (1) The Court shall determine the minimum amount of |
21 | | support by using the
following guidelines:
|
|
22 | | Number of Children |
Percent of Supporting Party's |
|
23 | | |
Net Income |
|
24 | | 1 |
20% |
|
25 | | 2 |
28% |
|
26 | | 3 |
32% |
|
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1 | | 4 |
40% |
|
2 | | 5 |
45% |
|
3 | | 6 or more |
50% |
|
4 | | (2) The above guidelines shall be applied in each case |
5 | | unless the court
finds that a deviation from the guidelines |
6 | | is appropriate after considering the best interest of the |
7 | | child in light of the evidence, including, but not limited |
8 | | to, one or more of the following relevant
factors:
|
9 | | (a) the financial resources and needs of the child;
|
10 | | (b) the financial resources and needs of the |
11 | | parents custodial parent ;
|
12 | | (c) the standard of living the child would have |
13 | | enjoyed had the
marriage not been dissolved;
|
14 | | (d) the physical, mental, and emotional needs of |
15 | | the child; and
|
16 | | (d-5) the educational needs of the child . ; and |
17 | | (e) the financial resources and needs of the |
18 | | non-custodial parent.
|
19 | | If the court deviates from the guidelines, the court's |
20 | | finding
shall state the amount of support that would have |
21 | | been required under the
guidelines, if determinable. The |
22 | | court shall include the reason or reasons for
the variance |
23 | | from the
guidelines.
|
24 | | (2.5) The court, in its discretion, in addition to |
25 | | setting child support pursuant to the guidelines and |
26 | | factors, may order either or both parents owing a duty of |
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1 | | support to a child of the marriage to contribute to the |
2 | | following expenses, if determined by the court to be |
3 | | reasonable: |
4 | | (a) health needs not covered by insurance; |
5 | | (b) child care; |
6 | | (c) education; and |
7 | | (d) extracurricular activities. |
8 | | (3) "Net income" is defined as the total of all income |
9 | | from all
sources, minus the following deductions:
|
10 | | (a) Federal income tax (properly calculated |
11 | | withholding or estimated
payments);
|
12 | | (b) State income tax (properly calculated |
13 | | withholding or estimated
payments);
|
14 | | (c) Social Security (FICA payments);
|
15 | | (d) Mandatory retirement contributions required by |
16 | | law or as a
condition of employment;
|
17 | | (e) Union dues;
|
18 | | (f) Dependent and individual |
19 | | health/hospitalization insurance premiums and premiums |
20 | | for life insurance ordered by the court to reasonably |
21 | | secure payment of ordered child support;
|
22 | | (g) Prior obligations of support or maintenance |
23 | | actually paid pursuant
to a court order;
|
24 | | (g-5) Obligations pursuant to a court order for |
25 | | maintenance in the pending proceeding actually paid or |
26 | | payable under Section 504 to the same party to whom |
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1 | | child support is to be payable; |
2 | | (h) Expenditures for repayment of debts that |
3 | | represent reasonable and
necessary expenses for the |
4 | | production of income including, but not limited to, |
5 | | student loans , medical expenditures
necessary to |
6 | | preserve life or health, reasonable expenditures for |
7 | | the
benefit of the child and the other parent, |
8 | | exclusive of gifts. The court
shall reduce net income |
9 | | in determining the minimum amount of support to be
|
10 | | ordered only for the period that such payments are due |
11 | | and shall enter an
order containing provisions for its |
12 | | self-executing modification upon
termination of such |
13 | | payment period;
|
14 | | (i) Foster care payments paid by the Department of |
15 | | Children and Family Services for providing licensed |
16 | | foster care to a foster child. |
17 | | (4) In cases where the court order provides for
|
18 | | health/hospitalization insurance coverage pursuant to |
19 | | Section 505.2 of
this Act, the premiums for that insurance, |
20 | | or that portion of the premiums
for which the supporting |
21 | | party is responsible in the case of insurance
provided |
22 | | through an employer's health insurance plan where
the |
23 | | employer pays a portion of the premiums, shall be |
24 | | subtracted
from net income in determining the minimum |
25 | | amount of support to be ordered.
|
26 | | (4.5) In a proceeding for child support following |
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1 | | dissolution of the
marriage by a court that lacked personal |
2 | | jurisdiction over the absent spouse,
and in which the court |
3 | | is requiring payment of support for the period before
the |
4 | | date an order for current support is entered, there is a |
5 | | rebuttable
presumption
that the supporting party's net |
6 | | income for the prior period was the same as his
or her net |
7 | | income at the time the order for current support is |
8 | | entered.
|
9 | | (5) If the net income cannot be determined because of |
10 | | default or any
other reason, the court shall order support |
11 | | in an amount considered
reasonable in the particular case. |
12 | | The final order in all cases shall
state the support level |
13 | | in dollar amounts.
However, if the
court finds that the |
14 | | child support amount cannot be expressed exclusively as a
|
15 | | dollar amount because all or a portion of the supporting |
16 | | parent's payor's net income is uncertain
as to source, time |
17 | | of payment, or amount, the court may order a percentage
|
18 | | amount of support in addition to a specific dollar amount |
19 | | and enter
such other orders as may be necessary to |
20 | | determine and enforce, on a timely
basis, the applicable |
21 | | support ordered.
|
22 | | (6) If (i) the supporting non-custodial parent was |
23 | | properly served with a request
for
discovery of financial |
24 | | information relating to the supporting non-custodial |
25 | | parent's
ability to
provide child support, (ii) the |
26 | | supporting non-custodial parent failed to comply with the
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1 | | request,
despite having been ordered to do so by the court, |
2 | | and (iii) the supporting non-custodial
parent is not |
3 | | present at the hearing to determine support despite having
|
4 | | received
proper notice, then any relevant financial |
5 | | information concerning the supporting
non-custodial |
6 | | parent's ability to provide child support that was obtained
|
7 | | pursuant to
subpoena and proper notice shall be admitted |
8 | | into evidence without the need to
establish any further |
9 | | foundation for its admission.
|
10 | | (a-5) In an action to enforce an order for support based on |
11 | | the
respondent's failure
to make support payments as required |
12 | | by the order, notice of proceedings to
hold the respondent in |
13 | | contempt for that failure may be served on the
respondent by |
14 | | personal service or by regular mail addressed to the |
15 | | respondent's
last known address. The respondent's last known |
16 | | address may be determined from
records of the clerk of the |
17 | | court, from the Federal Case Registry of Child
Support Orders, |
18 | | or by any other reasonable means.
|
19 | | (b) Failure of either parent to comply with an order to pay |
20 | | support shall
be punishable as in other cases of contempt. In |
21 | | addition to other
penalties provided by law the Court may, |
22 | | after finding the parent guilty
of contempt, order that the |
23 | | parent be:
|
24 | | (1) placed on probation with such conditions of |
25 | | probation as the Court
deems advisable;
|
26 | | (2) sentenced to periodic imprisonment for a period not |
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1 | | to exceed 6
months; provided, however, that the Court may |
2 | | permit the parent to be
released for periods of time during |
3 | | the day or night to:
|
4 | | (A) work; or
|
5 | | (B) conduct a business or other self-employed |
6 | | occupation.
|
7 | | The Court may further order any part or all of the earnings |
8 | | of a parent
during a sentence of periodic imprisonment paid to |
9 | | the Clerk of the Circuit
Court or to the parent receiving the |
10 | | support or to the guardian receiving the support having custody |
11 | | or to the guardian having custody
of the children of the |
12 | | sentenced parent for the support of said
children until further |
13 | | order of the Court.
|
14 | | If a parent who is found guilty of contempt for failure to |
15 | | comply with an order to pay support is a person who conducts a |
16 | | business or who is self-employed, the court in addition to |
17 | | other penalties provided by law may order that the parent do |
18 | | one or more of the following: (i) provide to the court monthly |
19 | | financial statements showing income and expenses from the |
20 | | business or the self-employment; (ii) seek employment and |
21 | | report periodically to the court with a diary, listing, or |
22 | | other memorandum of his or her employment search efforts; or |
23 | | (iii) report to the Department of Employment Security for job |
24 | | search services to find employment that will be subject to |
25 | | withholding for child support. |
26 | | If there is a unity of interest and ownership sufficient to |
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1 | | render no
financial separation between a supporting |
2 | | non-custodial parent and another person or
persons or business |
3 | | entity, the court may pierce the ownership veil of the
person, |
4 | | persons, or business entity to discover assets of the |
5 | | supporting non-custodial
parent held in the name of that |
6 | | person, those persons, or that business entity.
The following |
7 | | circumstances are sufficient to authorize a court to order
|
8 | | discovery of the assets of a person, persons, or business |
9 | | entity and to compel
the application of any discovered assets |
10 | | toward payment on the judgment for
support:
|
11 | | (1) the supporting non-custodial parent and the |
12 | | person, persons, or business entity
maintain records |
13 | | together.
|
14 | | (2) the supporting non-custodial parent and the |
15 | | person, persons, or business entity
fail to maintain an |
16 | | arm's length relationship between themselves with regard |
17 | | to
any assets.
|
18 | | (3) the supporting non-custodial parent transfers |
19 | | assets to the person, persons,
or business entity with the |
20 | | intent to perpetrate a fraud on the custodial
parent |
21 | | receiving the support .
|
22 | | With respect to assets which
are real property, no order |
23 | | entered under this paragraph shall affect the
rights of bona |
24 | | fide purchasers, mortgagees, judgment creditors, or other lien
|
25 | | holders who acquire their interests in the property prior to |
26 | | the time a notice
of lis pendens pursuant to the Code of Civil |
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1 | | Procedure or a copy of the order
is placed of record in the |
2 | | office of the recorder of deeds for the county in
which the |
3 | | real property is located.
|
4 | | The court may also order in cases where the parent is 90 |
5 | | days or more
delinquent in payment of support or has been |
6 | | adjudicated in arrears in an
amount equal to 90 days obligation |
7 | | or more, that the parent's Illinois driving
privileges be |
8 | | suspended until the court
determines that the parent is in |
9 | | compliance with the order of support.
The court may also order |
10 | | that the parent be issued a family financial
responsibility |
11 | | driving permit that would allow limited driving privileges for
|
12 | | employment and medical purposes in accordance with Section |
13 | | 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit |
14 | | court shall certify the order
suspending the driving privileges |
15 | | of the parent or granting the issuance of a
family financial |
16 | | responsibility driving permit to the Secretary of State on
|
17 | | forms prescribed by the Secretary. Upon receipt of the |
18 | | authenticated
documents, the Secretary of State shall suspend |
19 | | the parent's driving privileges
until further order of the |
20 | | court and shall, if ordered by the court, subject to
the |
21 | | provisions of Section 7-702.1 of the Illinois Vehicle Code, |
22 | | issue a family
financial responsibility driving permit to the |
23 | | parent.
|
24 | | In addition to the penalties or punishment that may be |
25 | | imposed under this
Section, any person whose conduct |
26 | | constitutes a violation of Section 15 of the
Non-Support |
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1 | | Punishment Act may be prosecuted under that Act, and a person
|
2 | | convicted under that Act may be sentenced in accordance with |
3 | | that Act. The
sentence may include but need not be limited to a |
4 | | requirement that the person
perform community service under |
5 | | Section 50 of that Act or participate in a work
alternative |
6 | | program under Section 50 of that Act. A person may not be |
7 | | required
to participate in a work alternative program under |
8 | | Section 50 of that Act if
the person is currently participating |
9 | | in a work program pursuant to Section
505.1 of this Act.
|
10 | | A support obligation, or any portion of a support |
11 | | obligation, which becomes
due and remains unpaid as of the end |
12 | | of each month, excluding the child support that was due for |
13 | | that month to the extent that it was not paid in that month, |
14 | | shall accrue simple interest as set forth in Section 12-109 of |
15 | | the Code of Civil Procedure.
An order for support entered or |
16 | | modified on or after January 1, 2006 shall
contain a statement |
17 | | that a support obligation required under the order, or any
|
18 | | portion of a support obligation required under the order, that |
19 | | becomes due and
remains unpaid as of the end of each month, |
20 | | excluding the child support that was due for that month to the |
21 | | extent that it was not paid in that month, shall accrue simple |
22 | | interest as set forth in Section 12-109 of the Code of Civil |
23 | | Procedure. Failure to include the statement in the order for |
24 | | support does
not affect the validity of the order or the |
25 | | accrual of interest as provided in
this Section.
|
26 | | (c) A one-time charge of 20% is imposable upon the amount |
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1 | | of
past-due child support owed on July 1, 1988 which has |
2 | | accrued under a
support order entered by the court. The charge |
3 | | shall be imposed in
accordance with the provisions of Section |
4 | | 10-21 of the Illinois Public Aid
Code and shall be enforced by |
5 | | the court upon petition.
|
6 | | (d) Any new or existing support order entered by the court
|
7 | | under this Section shall be deemed to be a series of judgments |
8 | | against the
person obligated to pay support thereunder, each |
9 | | such judgment to be in the
amount of each payment or |
10 | | installment of support and each such judgment to
be deemed |
11 | | entered as of the date the corresponding payment or installment
|
12 | | becomes due under the terms of the support order. Each such |
13 | | judgment shall
have the full force, effect and attributes of |
14 | | any other judgment of this
State, including the ability to be |
15 | | enforced.
Notwithstanding any other State or local law to the |
16 | | contrary, a lien arises by operation of law against the real |
17 | | and personal property of
the supporting noncustodial parent for |
18 | | each installment of overdue support owed by the supporting
|
19 | | noncustodial parent.
|
20 | | (e) When child support is to be paid through the clerk of |
21 | | the court in a
county of 1,000,000 inhabitants or less, the |
22 | | order shall direct the supporting parent obligor
to pay to the |
23 | | clerk, in addition to the child support payments, all fees
|
24 | | imposed by the county board under paragraph (3) of subsection |
25 | | (u) of
Section 27.1 of the Clerks of Courts Act. Unless paid in |
26 | | cash or pursuant to
an order for withholding, the payment of |
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1 | | the fee shall be by a separate
instrument from the support |
2 | | payment and shall be made to the order of the
Clerk.
|
3 | | (f) All orders for support, when entered or
modified, shall |
4 | | include a provision requiring the supporting parent obligor to |
5 | | notify
the court and, in cases in which a party is receiving |
6 | | child and spouse
services under Article X of the Illinois |
7 | | Public Aid Code, the
Department of Healthcare and Family |
8 | | Services, within 7 days, (i) of the name and address
of any new |
9 | | employer of the obligor, (ii) whether the supporting parent |
10 | | obligor has access to
health insurance coverage through the |
11 | | employer or other group coverage and,
if so, the policy name |
12 | | and number and the names of persons covered under
the policy , |
13 | | except only the initials of any covered minors shall be |
14 | | included , and (iii) of any new residential or mailing address |
15 | | or telephone
number of the supporting non-custodial parent. In |
16 | | any subsequent action to enforce a
support order, upon a |
17 | | sufficient showing that a diligent effort has been made
to |
18 | | ascertain the location of the supporting non-custodial parent, |
19 | | service of process or
provision of notice necessary in the case |
20 | | may be made at the last known
address of the supporting |
21 | | non-custodial parent in any manner expressly provided by the
|
22 | | Code of Civil Procedure or this Act, which service shall be |
23 | | sufficient for
purposes of due process.
|
24 | | (g) An order for support shall include a date on which the |
25 | | current
support obligation terminates. The termination date |
26 | | shall be no earlier than
the date on which the child covered by |
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1 | | the order will attain the age of
18. However, if the child will |
2 | | not graduate from high school until after
attaining the age of |
3 | | 18, then the termination date shall be no earlier than the
|
4 | | earlier of the date on which the child's high school graduation |
5 | | will occur or
the date on which the child will attain the age |
6 | | of 19. The order for support
shall state that the termination |
7 | | date does not apply to any arrearage that may
remain unpaid on |
8 | | that date. Nothing in this subsection shall be construed to
|
9 | | prevent the court from modifying the order or terminating the |
10 | | order in the
event the child is otherwise emancipated.
|
11 | | (g-5) If there is an unpaid arrearage or delinquency (as |
12 | | those terms are defined in the Income Withholding for Support |
13 | | Act) equal to at least one month's support obligation on the |
14 | | termination date stated in the order for support or, if there |
15 | | is no termination date stated in the order, on the date the |
16 | | child attains the age of majority or is otherwise emancipated, |
17 | | the periodic amount required to be paid for current support of |
18 | | that child immediately prior to that date shall automatically |
19 | | continue to be an obligation, not as current support but as |
20 | | periodic payment toward satisfaction of the unpaid arrearage or |
21 | | delinquency. That periodic payment shall be in addition to any |
22 | | periodic payment previously required for satisfaction of the |
23 | | arrearage or delinquency. The total periodic amount to be paid |
24 | | toward satisfaction of the arrearage or delinquency may be |
25 | | enforced and collected by any method provided by law for |
26 | | enforcement and collection of child support, including but not |
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1 | | limited to income withholding under the Income Withholding for |
2 | | Support Act. Each order for support entered or modified on or |
3 | | after the effective date of this amendatory Act of the 93rd |
4 | | General Assembly must contain a statement notifying the parties |
5 | | of the requirements of this subsection. Failure to include the |
6 | | statement in the order for support does not affect the validity |
7 | | of the order or the operation of the provisions of this |
8 | | subsection with regard to the order. This subsection shall not |
9 | | be construed to prevent or affect the establishment or |
10 | | modification of an order for support of a minor child or the |
11 | | establishment or modification of an order for support of a |
12 | | non-minor child or educational expenses under Section 513 of |
13 | | this Act.
|
14 | | (h) An order entered under this Section shall include a |
15 | | provision requiring
either parent to report to the other parent |
16 | | and to the clerk of court within 10 days each time either |
17 | | parent obtains new employment, and each time either parent's |
18 | | the obligor to report to the obligee and to the clerk of court |
19 | | within 10 days
each time the obligor obtains new employment, |
20 | | and each time the obligor's
employment is terminated for any |
21 | | reason. The report shall be in writing and
shall, in the case |
22 | | of new employment, include the name and address of the new
|
23 | | employer. Failure to report new employment or the termination |
24 | | of current
employment, if coupled with nonpayment of support |
25 | | for a period in excess of 60
days, is indirect criminal |
26 | | contempt. For either parent arrested for failure to report new |
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1 | | employment bond shall be set in the amount of the child support |
2 | | that should have been paid during the period of unreported |
3 | | employment. An order entered under this Section shall also |
4 | | include a provision requiring either parent to advise the any |
5 | | obligor arrested for failure to
report new employment bond |
6 | | shall be set in the amount of the child support that
should |
7 | | have been paid during the period of unreported employment. An |
8 | | order
entered under this Section shall also include a provision |
9 | | requiring the obligor
and obligee parents to advise each other |
10 | | of a change in residence within 5 days
of the change except |
11 | | when the court finds that the physical, mental, or
emotional |
12 | | health of a party or that of a child, or both, would be
|
13 | | seriously endangered by disclosure of the party's address.
|
14 | | (i) The court does not lose the powers of contempt, |
15 | | driver's license
suspension, or other child support |
16 | | enforcement mechanisms, including, but
not limited to, |
17 | | criminal prosecution as set forth in this Act, upon the
|
18 | | emancipation of the minor child or children.
|
19 | | (Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12; |
20 | | 97-813, eff. 7-13-12; 97-878, eff. 8-2-12; 97-941, eff. 1-1-13; |
21 | | 97-1029, eff. 1-1-13; 98-463, eff. 8-16-13; 98-961, eff. |
22 | | 1-1-15 .)
|
23 | | (750 ILCS 5/506) (from Ch. 40, par. 506)
|
24 | | Sec. 506. Representation of child.
|
25 | | (a) Duties. In any proceedings involving the support, |
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1 | | custody,
visitation, allocation of parental responsibilities, |
2 | | education, parentage, property interest, or general welfare of |
3 | | a
minor or dependent child, the court may, on its own motion or |
4 | | that of any
party, appoint
an attorney to serve in one of the |
5 | | following capacities to address the issues the court |
6 | | delineates:
|
7 | | (1) Attorney. The attorney shall provide independent |
8 | | legal counsel for the child and shall owe the same duties |
9 | | of undivided loyalty, confidentiality, and competent |
10 | | representation as are due an adult client.
|
11 | | (2) Guardian ad litem. The guardian ad litem shall |
12 | | testify or submit a written report to the court regarding |
13 | | his or her recommendations in accordance with the best |
14 | | interest of the child. The report shall be made available |
15 | | to all parties. The guardian ad litem may be called as a |
16 | | witness for purposes of cross-examination regarding the |
17 | | guardian ad litem's report or recommendations. The |
18 | | guardian ad litem shall investigate the facts of the case |
19 | | and interview the child and the parties.
|
20 | | (3) Child representative. The child representative |
21 | | shall advocate what the
child representative finds to be in |
22 | | the best interests of the child after reviewing
the facts |
23 | | and circumstances of the case. The child representative |
24 | | shall meet with the child and the parties, investigate the |
25 | | facts of the case, and encourage settlement and the use of |
26 | | alternative forms of dispute resolution. The child |
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1 | | representative shall have
the same authority and |
2 | | obligation to participate in the litigation as
does an |
3 | | attorney for a party and shall possess all the powers of |
4 | | investigation
as does a guardian ad litem. The child |
5 | | representative
shall consider, but not be bound by, the |
6 | | expressed wishes of the child. A
child representative shall |
7 | | have received training in child advocacy or shall
possess |
8 | | such experience as determined to be equivalent to such |
9 | | training by the
chief judge of the circuit where the child |
10 | | representative has been appointed.
The
child |
11 | | representative shall not disclose confidential |
12 | | communications made
by the child, except as required by law |
13 | | or by the Rules of Professional
Conduct. The child |
14 | | representative shall not render an opinion, |
15 | | recommendation, or report to the court and shall not be |
16 | | called as a witness, but shall offer evidence-based legal |
17 | | arguments. The child representative shall disclose the |
18 | | position as to what the child representative intends to |
19 | | advocate in a pre-trial memorandum that shall be served |
20 | | upon all counsel of record prior to the trial. The position |
21 | | disclosed in the pre-trial memorandum shall not be |
22 | | considered evidence. The court and the parties may consider |
23 | | the position of the child representative for purposes of a |
24 | | settlement conference.
|
25 | | (a-3) Additional appointments. During the proceedings the |
26 | | court may appoint an additional attorney to
serve in the |
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1 | | capacity described in subdivision (a)(1) or an additional |
2 | | attorney to serve in another of the capacities described in |
3 | | subdivision (a)(2) or
(a)(3) on
the court's own motion or that |
4 | | of a party only for good cause shown and when the
reasons for |
5 | | the additional appointment are set forth in specific findings.
|
6 | | (a-5) Appointment considerations. In deciding whether to |
7 | | make an appointment of an attorney for the minor child, a |
8 | | guardian ad litem, or a child representative, the court shall |
9 | | consider the nature and adequacy of the evidence to be |
10 | | presented by the parties and the availability of other methods |
11 | | of obtaining information, including social service |
12 | | organizations and evaluations by mental health professions, as |
13 | | well as resources for payment.
|
14 | | In no event is this Section intended to or designed to |
15 | | abrogate the decision making power of the trier of fact. Any |
16 | | appointment made under this Section is not intended to nor |
17 | | should it serve to place any appointed individual in the role |
18 | | of a surrogate judge.
|
19 | | (b) Fees and costs. The court shall enter an order as |
20 | | appropriate for
costs, fees, and disbursements, including a |
21 | | retainer, when the attorney,
guardian ad litem, or child's |
22 | | representative is appointed. Any person appointed under this |
23 | | Section shall file with the court within 90 days of his or her |
24 | | appointment, and every subsequent 90-day period thereafter |
25 | | during the course of his or her representation, a detailed |
26 | | invoice for services rendered with a copy being sent to each |
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1 | | party. The court shall review the invoice submitted and approve |
2 | | the fees, if they are reasonable and necessary. Any order |
3 | | approving the fees shall require payment by either or both |
4 | | parents, by any
other party or source, or from the marital |
5 | | estate or the child's separate
estate.
The court may not order |
6 | | payment by the Department of Healthcare and Family Services
in |
7 | | cases in which the Department is providing child support
|
8 | | enforcement services
under Article X of the Illinois Public Aid |
9 | | Code. Unless otherwise ordered by
the
court at the time fees |
10 | | and costs are
approved, all fees and costs payable to an |
11 | | attorney, guardian ad litem, or
child representative under this |
12 | | Section are by implication deemed to be in
the nature of |
13 | | support of the child and are within the exceptions to discharge
|
14 | | in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections |
15 | | 501 and 508 of
this Act shall apply to fees and costs for |
16 | | attorneys appointed under this
Section.
|
17 | | (Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)
|
18 | | (750 ILCS 5/508) (from Ch. 40, par. 508)
|
19 | | Sec. 508. Attorney's Fees; Client's Rights and |
20 | | Responsibilities Respecting
Fees and
Costs. |
21 | | (a) The court from time to time, after due notice and |
22 | | hearing, and after
considering the financial resources of the |
23 | | parties, may order any party to
pay a reasonable amount for his |
24 | | own or the other party's costs and
attorney's fees. Interim |
25 | | attorney's fees and costs may be awarded from the
opposing |
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1 | | party, in a pre-judgment dissolution proceeding in accordance |
2 | | with subsection (c-1) of Section 501 and in any other |
3 | | proceeding under this subsection. At the
conclusion of any |
4 | | pre-judgment dissolution proceeding under this subsection, |
5 | | contribution to attorney's fees and costs may be
awarded from |
6 | | the opposing party in accordance with subsection (j) of Section
|
7 | | 503 and in any other proceeding under this subsection. Fees and |
8 | | costs may be awarded in any proceeding to counsel from a former |
9 | | client in
accordance with subsection (c) of
this Section.
|
10 | | Awards may be made in connection with the following:
|
11 | | (1) The maintenance or defense of any proceeding under |
12 | | this Act.
|
13 | | (2) The enforcement or modification of any order or |
14 | | judgment
under this Act.
|
15 | | (3) The defense of an appeal of any order or judgment |
16 | | under
this Act, including the defense of appeals of |
17 | | post-judgment orders.
|
18 | | (3.1) The prosecution of any claim on appeal (if the |
19 | | prosecuting party
has
substantially prevailed).
|
20 | | (4) The maintenance or defense of a petition brought |
21 | | under
Section 2-1401 of the Code of Civil Procedure seeking |
22 | | relief from a
final order or judgment under this Act. Fees |
23 | | incurred with respect to motions under
Section 2-1401 of |
24 | | the Code of Civil Procedure may be granted only to the |
25 | | party who substantially prevails.
|
26 | | (5) The costs and legal services of an attorney |
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1 | | rendered in
preparation of the commencement of the |
2 | | proceeding brought under this Act.
|
3 | | (6) Ancillary litigation incident to, or reasonably |
4 | | connected with, a
proceeding under this Act.
|
5 | | (7) Costs and attorney's fees incurred in an action |
6 | | under the Hague Convention on the Civil Aspects of |
7 | | International Child Abduction. |
8 | | All petitions for or relating to interim fees and costs |
9 | | under this subsection shall be accompanied by an affidavit as |
10 | | to the factual basis for the relief requested and all hearings |
11 | | relative to any such petition shall be scheduled expeditiously |
12 | | by the court. All provisions for contribution under this |
13 | | subsection shall also be subject to paragraphs (3), (4), and |
14 | | (5) of subsection (j) of Section 503. |
15 | | The court may order that the award of attorney's fees and |
16 | | costs
(including an interim or contribution award) shall be |
17 | | paid directly to the
attorney, who may enforce the order in his |
18 | | or her name, or that it shall be
paid to
the appropriate party. |
19 | | Judgment may be entered and enforcement had
accordingly. Except |
20 | | as otherwise provided in subdivision (e)(1) of this
Section, |
21 | | subsection (c) of this Section
is exclusive as to the right of |
22 | | any counsel
(or
former counsel) of record to petition a court |
23 | | for an award and judgment for
final fees and costs during the |
24 | | pendency of a proceeding under this Act.
|
25 | | A petition for temporary attorney's fees in a post-judgment |
26 | | case may be heard on a non-evidentiary,
summary basis. |
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1 | | (b) In every proceeding for the enforcement of an order or |
2 | | judgment
when the court finds that the failure to comply with |
3 | | the order or judgment
was without compelling cause or |
4 | | justification, the court shall order the
party against
whom the |
5 | | proceeding is brought to pay promptly the costs and reasonable
|
6 | | attorney's
fees of the prevailing party.
If non-compliance is |
7 | | with respect to a discovery order, the non-compliance is
|
8 | | presumptively without compelling cause or justification, and |
9 | | the presumption
may only be rebutted by clear and convincing |
10 | | evidence. If at any time a court
finds that a hearing under |
11 | | this Act was precipitated or conducted for any
improper |
12 | | purpose, the court shall allocate fees and costs of all parties |
13 | | for
the hearing to the party or counsel found to have acted |
14 | | improperly. Improper
purposes include, but are not limited to, |
15 | | harassment, unnecessary
delay, or other acts needlessly |
16 | | increasing the cost of litigation.
|
17 | | (c) Final hearings for attorney's fees and costs against an |
18 | | attorney's own
client, pursuant to a Petition for Setting Final |
19 | | Fees and Costs of either a
counsel or a client, shall be |
20 | | governed by the following:
|
21 | | (1) No petition of a counsel of record may be filed |
22 | | against a client
unless the filing counsel previously has |
23 | | been granted leave to withdraw as
counsel of record or has |
24 | | filed a motion for leave to withdraw as counsel. On
receipt
|
25 | | of a petition of a client under this subsection (c), the |
26 | | counsel of record
shall promptly file a motion for leave to |
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1 | | withdraw as counsel. If the client
and the counsel of
|
2 | | record agree, however, a hearing on the motion for leave to |
3 | | withdraw as counsel
filed pursuant to this
subdivision |
4 | | (c)(1) may be deferred until completion of any alternative |
5 | | dispute
resolution procedure under subdivision (c)(4). As |
6 | | to any
Petition for Setting Final Fees and Costs against a |
7 | | client or counsel over whom
the court has not obtained
|
8 | | jurisdiction, a separate summons shall issue. Whenever a |
9 | | separate summons is
not required, original notice as to a |
10 | | Petition for Setting Final Fees and Costs
may be given, and |
11 | | documents
served, in accordance with Illinois Supreme |
12 | | Court Rules 11 and 12.
|
13 | | (2) No final hearing under this subsection (c) is |
14 | | permitted
unless: (i) the
counsel and the client had |
15 | | entered into a written engagement agreement at the
time the |
16 | | client retained the counsel (or reasonably soon |
17 | | thereafter) and the
agreement
meets the requirements of |
18 | | subsection (f); (ii) the written engagement agreement
is |
19 | | attached to an affidavit of counsel that is filed with the |
20 | | petition or with
the
counsel's response to a client's |
21 | | petition; (iii) judgment in any contribution
hearing on |
22 | | behalf of the client has been entered or the right to a |
23 | | contribution
hearing under subsection (j) of Section 503 |
24 | | has been waived; (iv) the counsel
has withdrawn as
counsel |
25 | | of record; and (v) the petition seeks adjudication of all |
26 | | unresolved
claims for fees and costs between the counsel |
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1 | | and the client. Irrespective of a
Petition for Setting |
2 | | Final Fees and Costs being heard in conjunction with an
|
3 | | original proceeding under this Act, the relief requested |
4 | | under a Petition for
Setting Final Fees and Costs |
5 | | constitutes a distinct cause of action. A pending
but |
6 | | undetermined
Petition for Setting Final Fees and Costs |
7 | | shall not affect appealability or enforceability of
any |
8 | | judgment or other adjudication in the original proceeding.
|
9 | | (3) The determination of reasonable attorney's fees |
10 | | and costs either under
this
subsection (c), whether |
11 | | initiated by a counsel or a client, or in an
independent |
12 | | proceeding for services within the scope of subdivisions |
13 | | (1)
through (5) of subsection (a), is within the sound |
14 | | discretion of the trial
court. The court shall first |
15 | | consider the written engagement agreement and, if
the court |
16 | | finds that the former client and the filing counsel, |
17 | | pursuant to
their written engagement agreement, entered |
18 | | into a contract which meets
applicable requirements of |
19 | | court rules and addresses all material terms, then
the |
20 | | contract shall be enforceable in accordance with its terms, |
21 | | subject to the
further requirements of this subdivision |
22 | | (c)(3). Before ordering enforcement,
however, the court
|
23 | | shall consider the performance pursuant to the contract. |
24 | | Any amount awarded
by the court must be found to be fair |
25 | | compensation for the services, pursuant
to the contract, |
26 | | that the court finds were reasonable and necessary. Quantum
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1 | | meruit principles shall govern any award for legal services |
2 | | performed that is
not based on the terms of the written |
3 | | engagement agreement (except that, if a
court expressly |
4 | | finds in a particular case that aggregate billings to a |
5 | | client
were unconscionably excessive, the court in its |
6 | | discretion may reduce the award
otherwise determined |
7 | | appropriate or deny fees altogether).
|
8 | | (4) No final hearing under this subsection (c) is |
9 | | permitted unless any
controversy
over fees and costs (that |
10 | | is not otherwise subject to some form of alternative
|
11 | | dispute resolution) has first been submitted to mediation, |
12 | | arbitration, or any
other court approved alternative |
13 | | dispute resolution procedure, except as
follows:
|
14 | | (A) In any circuit court for a single county with a |
15 | | population in excess
of
1,000,000, the requirement of |
16 | | the controversy being submitted to an alternative
|
17 | | dispute resolution procedure is mandatory unless the |
18 | | client and the counsel
both affirmatively opt out of |
19 | | such procedures; or
|
20 | | (B) In any other circuit court, the requirement of |
21 | | the controversy being
submitted to an alternative |
22 | | dispute resolution procedure is mandatory only if
|
23 | | neither the client nor the counsel affirmatively opts |
24 | | out of such
procedures.
|
25 | | After completion of any such procedure (or after one or |
26 | | both sides has
opted
out of such procedures), if the |
|
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1 | | dispute is unresolved, any pending motion
for leave to |
2 | | withdraw as counsel shall be promptly granted and a final |
3 | | hearing
under this subsection
(c) shall be expeditiously |
4 | | set and completed.
|
5 | | (5) A petition (or a praecipe for fee hearing without |
6 | | the petition) shall
be
filed no later than the end of the |
7 | | period in which it is permissible to file a
motion pursuant |
8 | | to Section 2-1203 of the Code of Civil Procedure. A |
9 | | praecipe
for fee hearing shall be dismissed if a Petition |
10 | | for Setting Final Fees and
Costs is not filed within 60 |
11 | | days after the filing of the praecipe. A counsel
who |
12 | | becomes a party by filing a Petition for Setting Final Fees |
13 | | and Costs, or
as a result of the client
filing a Petition |
14 | | for Setting Final Fees and Costs, shall not be entitled to
|
15 | | exercise the right to a
substitution of a judge without |
16 | | cause under subdivision (a)(2) of Section
2-1001 of the |
17 | | Code of Civil Procedure. Each of the foregoing deadlines |
18 | | for the filing of a praecipe or a petition shall be:
|
19 | | (A) tolled if a motion is filed under Section 2-1203 of |
20 | | the Code of Civil Procedure, in which instance a petition |
21 | | (or a praecipe) shall be filed no later than 30 days |
22 | | following disposition of all Section 2-1203 motions; or |
23 | | (B) tolled if a notice of appeal is filed, in which |
24 | | instance a petition (or praecipe) shall be filed no later |
25 | | than 30 days following the date jurisdiction on the issue |
26 | | appealed is returned to the trial court. |
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1 | | If a praecipe has been timely filed, then by timely filed |
2 | | written stipulation between counsel and client (or former |
3 | | client), the deadline for the filing of a petition may be |
4 | | extended for a period of up to one year. |
5 | | (d) A consent judgment, in favor of a current counsel of |
6 | | record against his
or her own client for a specific amount in a |
7 | | marital settlement agreement,
dissolution judgment, or any |
8 | | other instrument involving the other litigant, is
prohibited. A |
9 | | consent judgment between client and counsel, however, is
|
10 | | permissible if it is entered pursuant to a verified petition |
11 | | for entry of
consent judgment, supported by an affidavit of the |
12 | | counsel of record that
includes the counsel's representation |
13 | | that the client has been provided an itemization of the billing |
14 | | or billings to the client, detailing
hourly costs, time spent, |
15 | | and tasks performed, and by an affidavit of the
client |
16 | | acknowledging receipt of that documentation, awareness
of the |
17 | | right to a hearing, the right to be represented by counsel |
18 | | (other than
counsel to whom the consent judgment is in favor), |
19 | | and the right to be present
at
the time of presentation of the |
20 | | petition, and agreement to the terms of the
judgment. The |
21 | | petition may be filed at any time during which it is |
22 | | permissible
for counsel of record to file a petition (or a |
23 | | praecipe) for a final fee
hearing, except that no such petition |
24 | | for entry of consent judgment may be
filed before adjudication |
25 | | (or waiver) of the client's right to contribution
under |
26 | | subsection (j) of Section 503 or filed after the filing of a
|
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1 | | petition (or a praecipe) by counsel of record for a fee hearing |
2 | | under
subsection (c) if the petition (or praecipe) remains |
3 | | pending. No consent
security arrangement between a client and a |
4 | | counsel of record, pursuant to
which assets of a client are |
5 | | collateralized to secure payment of legal fees or
costs, is |
6 | | permissible unless approved in advance by the court as being
|
7 | | reasonable under the circumstances.
|
8 | | (e) Counsel may pursue an award and judgment against a |
9 | | former client for
legal
fees and costs in an independent |
10 | | proceeding in the following circumstances:
|
11 | | (1) While a case under this Act is still pending, a |
12 | | former counsel may pursue
such an award and judgment at any |
13 | | time subsequent to 90 days after the entry of
an order |
14 | | granting counsel leave to withdraw; and
|
15 | | (2) After the close of the period during which a |
16 | | petition (or praecipe)
may be filed under subdivision |
17 | | (c)(5), if no such petition (or praecipe) for
the
counsel |
18 | | remains pending, any counsel or former counsel may pursue |
19 | | such an award
and judgment in an independent proceeding.
|
20 | | In an independent proceeding, the prior applicability of this |
21 | | Section
shall in no way be deemed to have diminished any other |
22 | | right of any counsel (or
former counsel) to pursue an award and |
23 | | judgment for legal fees and costs on the
basis of remedies that |
24 | | may otherwise exist under applicable law; and the limitations |
25 | | period for breach of contract shall apply. In an
independent |
26 | | proceeding under subdivision (e)(1) in which the former counsel |
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1 | | had
represented a former client in a dissolution case that is |
2 | | still pending, the former
client may bring
in his or her spouse |
3 | | as a third-party defendant, provided on or before the
final |
4 | | date for filing a petition (or praecipe) under subsection (c), |
5 | | the party
files an appropriate third-party complaint under |
6 | | Section 2-406 of the Code of
Civil Procedure. In any such case, |
7 | | any judgment later obtained by the
former counsel shall be |
8 | | against both spouses or ex-spouses, jointly and
severally |
9 | | (except that, if a hearing under subsection (j) of Section 503 |
10 | | has
already been concluded and the court hearing the |
11 | | contribution issue has imposed
a percentage allocation between |
12 | | the parties as to
fees and costs otherwise being adjudicated in |
13 | | the independent proceeding, the
allocation
shall be applied |
14 | | without deviation by the court in the independent proceeding
|
15 | | and a separate judgment shall be entered against each spouse |
16 | | for the
appropriate
amount). After the period for the |
17 | | commencement of a proceeding under
subsection (c), the |
18 | | provisions of this Section (other than the standard set
forth |
19 | | in subdivision (c)(3) and the terms respecting consent security
|
20 | | arrangements in subsection (d) of this Section 508) shall be |
21 | | inapplicable.
|
22 | | The changes made by this amendatory Act of the 94th General |
23 | | Assembly are declarative of existing law.
|
24 | | (f) Unless the Supreme Court by rule addresses the matters |
25 | | set out in this
subsection (f), a written engagement agreement |
26 | | within the scope
of subdivision (c)(2) shall have appended to |
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1 | | it verbatim the following
Statement:
|
2 | | "STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
|
3 | | (1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement |
4 | | agreement, prepared
by the counsel, shall clearly address the |
5 | | objectives of representation and
detail the fee arrangement, |
6 | | including all material terms. If fees are to be
based on |
7 | | criteria apart from, or in addition to, hourly rates, such |
8 | | criteria
(e.g., unique time demands and/or utilization of |
9 | | unique expertise) shall be
delineated. The client shall receive |
10 | | a copy of the written engagement
agreement and any additional |
11 | | clarification requested and is advised not to
sign any such |
12 | | agreement which the client finds to be unsatisfactory or does
|
13 | | not understand.
|
14 | | (2) REPRESENTATION. Representation will commence upon the |
15 | | signing of the
written engagement agreement. The counsel will |
16 | | provide competent
representation, which requires legal |
17 | | knowledge, skill, thoroughness and
preparation to handle those |
18 | | matters set forth in the written engagement
agreement. Once |
19 | | employed, the counsel will act with reasonable diligence and
|
20 | | promptness, as well as use his best efforts on behalf of the |
21 | | client, but he
cannot guarantee results. The counsel will abide |
22 | | by the client's decision
concerning the objectives of |
23 | | representation, including whether or not to accept
an offer of |
24 | | settlement, and will endeavor to explain any matter to the |
25 | | extent
reasonably necessary to permit the client to make |
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1 | | informed decisions regarding
representation. During the course |
2 | | of representation and afterwards, the
counsel
may not use or |
3 | | reveal a client's confidence or secrets, except as required or
|
4 | | permitted by law.
|
5 | | (3) COMMUNICATION. The counsel will keep the client |
6 | | reasonably informed
about the status of representation and will |
7 | | promptly respond to reasonable
requests for information, |
8 | | including any reasonable request for an estimate
respecting |
9 | | future costs of the representation or an appropriate portion of |
10 | | it.
The client shall be truthful in all discussions with the |
11 | | counsel and provide
all information or documentation required |
12 | | to enable the counsel to provide
competent representation. |
13 | | During representation, the client is entitled to
receive all |
14 | | pleadings and substantive documents prepared on behalf of the
|
15 | | client and every document received from any other counsel of |
16 | | record. At the
end of the representation and on written request |
17 | | from the client, the counsel
will return to the client all |
18 | | original documents and exhibits. In the event
that the counsel |
19 | | withdraws from representation, or is discharged by the client,
|
20 | | the counsel will turn over to the substituting counsel (or, if |
21 | | no
substitutions, to the client) all original documents and |
22 | | exhibits together with
complete copies of all pleadings and |
23 | | discovery within thirty (30) days of the
counsel's withdrawal |
24 | | or discharge.
|
25 | | (4) ETHICAL CONDUCT. The counsel cannot be required to |
26 | | engage in conduct
which is illegal, unethical, or fraudulent. |
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1 | | In matters involving minor
children, the counsel may refuse to |
2 | | engage in conduct which, in the counsel's
professional |
3 | | judgment, would be contrary to the best interest of the |
4 | | client's
minor child or children. A counsel who cannot |
5 | | ethically abide by his client's
directions shall be allowed to |
6 | | withdraw from representation.
|
7 | | (5) FEES. The counsel's fee for services may not be |
8 | | contingent upon the
securing of a dissolution of marriage or , |
9 | | upon being allocated parental responsibility obtaining |
10 | | custody, or be based upon
the amount of maintenance, child |
11 | | support, or property settlement received,
except as |
12 | | specifically permitted under Supreme Court rules. The
counsel |
13 | | may not require a non-refundable retainer fee, but must remit |
14 | | back any
overpayment at the end of the representation. The |
15 | | counsel may enter into a
consensual security arrangement with |
16 | | the client whereby assets of the client
are pledged to secure |
17 | | payment of legal fees or costs, but only if the counsel
first |
18 | | obtains approval of the Court. The counsel will prepare and |
19 | | provide the
client with an itemized billing statement detailing |
20 | | hourly rates (and/or other
criteria), time spent, tasks |
21 | | performed, and costs incurred on a regular basis,
at least |
22 | | quarterly. The client should review each billing statement |
23 | | promptly
and address any objection or error in a timely manner. |
24 | | The client will not be
billed for time spent to explain or |
25 | | correct a billing statement. If an
appropriately detailed |
26 | | written estimate is submitted to a client as to future
costs |
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1 | | for a counsel's representation or a portion of the contemplated |
2 | | services
(i.e., relative to specific steps recommended by the |
3 | | counsel in the estimate)
and, without objection from the |
4 | | client, the counsel then performs the
contemplated services, |
5 | | all such services are presumptively reasonable and
necessary, |
6 | | as well as to be deemed pursuant to the client's direction. In |
7 | | an
appropriate case, the client may pursue contribution to his |
8 | | or her fees and
costs from the other party.
|
9 | | (6) DISPUTES. The counsel-client relationship is regulated |
10 | | by the Illinois
Rules of Professional Conduct (Article VIII of |
11 | | the Illinois Supreme Court
Rules), and any dispute shall be |
12 | | reviewed under the terms of such Rules."
|
13 | | (g) The changes to this Section 508 made by this amendatory |
14 | | Act of 1996
apply to cases pending on or after June 1, 1997, |
15 | | except as follows:
|
16 | | (1) Subdivisions (c)(1) and (c)(2) of this Section 508, |
17 | | as well as
provisions of subdivision (c)(3) of this Section |
18 | | 508 pertaining to written
engagement agreements, apply |
19 | | only to
cases filed on or after June 1, 1997.
|
20 | | (2) The following do not apply in the case of a hearing |
21 | | under this Section
that began before June 1, 1997:
|
22 | | (A) Subsection (c-1) of Section 501.
|
23 | | (B) Subsection (j) of Section 503.
|
24 | | (C) The changes to this Section 508 made by this |
25 | | amendatory Act of 1996
pertaining to the final setting |
26 | | of fees.
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1 | | (Source: P.A. 96-583, eff. 1-1-10.)
|
2 | | (750 ILCS 5/509) (from Ch. 40, par. 509)
|
3 | | Sec. 509. Independence of Provisions of Judgment or
|
4 | | Temporary Order. ) If a party fails to comply with a provision
|
5 | | of a judgment, order or injunction, the obligation of the other
|
6 | | party to make payments for support or maintenance or to permit
|
7 | | visitation or parenting time is not suspended; but he may move |
8 | | the court to grant
an appropriate order.
|
9 | | (Source: P.A. 80-923.)
|
10 | | (750 ILCS 5/510) (from Ch. 40, par. 510)
|
11 | | Sec. 510. Modification and termination of provisions for
|
12 | | maintenance, support, educational expenses, and property |
13 | | disposition. |
14 | | (a) Except as otherwise provided in paragraph (f) of |
15 | | Section 502 and
in subsection (b), clause (3) of Section 505.2, |
16 | | the provisions of any
judgment respecting maintenance or |
17 | | support may be modified only as to
installments accruing |
18 | | subsequent to due notice by the moving party of the
filing of |
19 | | the motion for modification. An order for child
support may be |
20 | | modified as follows:
|
21 | | (1) upon a showing of a substantial change in |
22 | | circumstances; 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
|
17 | | in cases in which a party is receiving child support
|
18 | | enforcement services from the Department of Healthcare and |
19 | | Family Services under
Article X of the Illinois Public Aid |
20 | | Code, and only when at least 36
months have elapsed since the |
21 | | order for child support was entered or last
modified.
|
22 | | (a-5) An order for maintenance may be modified or |
23 | | terminated only upon a
showing of a substantial change in |
24 | | circumstances. In all such proceedings, as
well as in |
25 | | proceedings in which maintenance is being reviewed, the court |
26 | | shall
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 | | (a-6) In a review under subsection (b-4.5) of Section 504 |
3 | | of this Act, the court may enter a fixed-term maintenance award |
4 | | that bars future maintenance only if, at the time of the entry |
5 | | of the award, the marriage had lasted 10 years or less at the |
6 | | time the original action was commenced. |
7 | | (b) The provisions as to property disposition may not be |
8 | | revoked or
modified,
unless the court finds the existence of |
9 | | conditions that justify the
reopening of a judgment under the |
10 | | laws of this State.
|
11 | | (c) Unless otherwise agreed by the parties in a written |
12 | | agreement
set forth in the judgment or otherwise approved by |
13 | | the court, the obligation
to pay future maintenance is |
14 | | terminated upon the death of either party, or
the remarriage of |
15 | | the party receiving maintenance, or if the party
receiving |
16 | | maintenance cohabits with another person on a resident,
|
17 | | continuing conjugal basis. A payor's obligation to pay |
18 | | maintenance or unallocated maintenance terminates by operation |
19 | | of law on the date the recipient remarries or the date the |
20 | | court finds cohabitation began. The payor is entitled to |
21 | | reimbursement for all maintenance paid from that date forward. |
22 | | Any obligation of a payor party for premium payments respecting |
23 | | insurance on such party's life imposed under subsection (f) of |
24 | | Section 504 is also terminated on the occurrence of any of the |
25 | | foregoing events, unless otherwise agreed by the parties. Any |
26 | | termination of an obligation for maintenance as a result of the |
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1 | | death of the payor party, however, shall be inapplicable to any |
2 | | right of the other party or such other party's designee to |
3 | | receive a death benefit under such insurance on the payor |
4 | | party's life. A party receiving maintenance must advise the |
5 | | payor of his or her intention to marry at least 30 days before |
6 | | the remarriage, unless the decision is made within this time |
7 | | period. In that event, he or she must notify the other party |
8 | | within 72 hours of getting married. |
9 | | (c-5) In an adjudicated case, the court shall make specific |
10 | | factual findings as to the reason for the modification as well |
11 | | as the amount, nature, and duration of the modified maintenance |
12 | | award.
|
13 | | (d) Unless otherwise provided in this Act, or as agreed in |
14 | | writing or
expressly
provided in the
judgment, provisions for |
15 | | the support of a child are terminated by emancipation
of the
|
16 | | child, or if the child has attained the age of 18 and is still |
17 | | attending
high school,
provisions for the support of the child |
18 | | are terminated upon the date that the
child
graduates from high |
19 | | school or the date the child attains the age of 19,
whichever |
20 | | is
earlier, but not by the death of a parent obligated to |
21 | | support or educate the
child.
An existing obligation to pay for |
22 | | support
or educational expenses, or both, is not terminated by |
23 | | the death of a
parent. When a parent obligated to pay support |
24 | | or educational
expenses, or both, dies, the amount of support |
25 | | or educational expenses, or
both, may be enforced, modified, |
26 | | revoked or commuted to a lump sum payment,
as equity may |
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1 | | require, and that determination may be provided for at the
time |
2 | | of the dissolution of the marriage or thereafter.
|
3 | | (e) The right to petition for support or educational |
4 | | expenses, or both,
under Sections 505 and 513 is not |
5 | | extinguished by the death of a parent.
Upon a petition filed |
6 | | before or after a parent's death, the court may award
sums of |
7 | | money out of the decedent's estate for the child's support or
|
8 | | educational expenses, or both, as equity may require. The time |
9 | | within
which a claim may be filed against the estate of a |
10 | | decedent under Sections
505 and 513 and subsection (d) and this |
11 | | subsection shall be governed by the
provisions of the Probate |
12 | | Act of 1975, as a barrable, noncontingent claim.
|
13 | | (f) A petition to modify or terminate child support or |
14 | | allocation of parental responsibilities , custody, or
|
15 | | visitation shall not delay any child support enforcement |
16 | | litigation or
supplementary proceeding on behalf of the |
17 | | obligee, including, but not limited
to, a petition for a rule |
18 | | to show cause, for non-wage garnishment, or for a
restraining |
19 | | order.
|
20 | | (Source: P.A. 97-608, eff. 1-1-12.)
|
21 | | (750 ILCS 5/512) (from Ch. 40, par. 512)
|
22 | | Sec. 512. Post-Judgment Venue. ) After 30 days from the |
23 | | entry
of a judgment of dissolution of marriage or legal |
24 | | separation or the last modification
thereof, any further |
25 | | proceedings to enforce or modify the judgment
shall be as |
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1 | | follows:
|
2 | | (a) If the respondent does not then reside within this |
3 | | State,
further proceedings shall be had either in the judicial |
4 | | circuit
wherein the moving party resides or where the judgment |
5 | | was
entered or last modified.
|
6 | | (b) If one or both of the parties then resides in the |
7 | | judicial
circuit wherein the judgment was entered or last |
8 | | modified, further
proceedings shall be had in the judicial |
9 | | circuit that last
exercised jurisdiction in the matter; |
10 | | provided, however, that
the court may in its discretion, |
11 | | transfer matters involving a
change in the allocation of |
12 | | parental responsibility child custody to the judicial circuit |
13 | | where the minor
or dependent child resides.
|
14 | | (c) If neither party then resides in the judicial circuit
|
15 | | wherein the judgment was entered or last modified, further
|
16 | | proceedings shall be had in that circuit or in the judicial
|
17 | | circuit wherein either party resides or where the respondent
is |
18 | | actively employed ; provided, however, that the court may,
in |
19 | | its discretion, transfer matters involving a change in the |
20 | | allocation of parental responsibility child
custody to the |
21 | | judicial circuit where the minor or dependent child resides.
|
22 | | (d) Objection to venue is waived if not made within such |
23 | | time
as the respondent's answer is due. Counter relief shall be |
24 | | heard
and determined by the court hearing any matter already |
25 | | pending.
|
26 | | (Source: P.A. 80-923.)
|
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1 | | (750 ILCS 5/513) (from Ch. 40, par. 513)
|
2 | | Sec. 513. Educational Expenses Support for a Non-minor |
3 | | Child Children and Educational Expenses .
|
4 | | (a) The court may award sums of money out of the property |
5 | | and income of
either or both parties or the estate of a |
6 | | deceased parent, as equity may
require, for the educational |
7 | | expenses support of any the child or children of the parties . |
8 | | Unless otherwise agreed to by the parties, all educational |
9 | | expenses which are the subject of a petition brought pursuant |
10 | | to this Section shall be incurred no later than the student's |
11 | | 23rd birthday, except for good cause shown, but in no event |
12 | | later than the child's 25th birthday. |
13 | | (b) Regardless of whether an award has been made under |
14 | | subsection (a), the court may require both parties and the |
15 | | child to complete the Free Application for Federal Student Aid |
16 | | (FAFSA) and other financial aid forms and to submit any form of |
17 | | that type prior to the designated submission deadline for the |
18 | | form. The court may require either or both parties to provide |
19 | | funds for the child so as to pay for the cost of up to 5 college |
20 | | applications, the cost of 2 standardized college entrance |
21 | | examinations, and the cost of one standardized college entrance |
22 | | examination preparatory course. |
23 | | (c) The authority under this Section to make provision for |
24 | | educational expenses extends not only to periods of college |
25 | | education or vocational or professional or other training after |
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1 | | graduation from high school, but also to any period during |
2 | | which the child of the parties is still attending high school, |
3 | | even though he or she attained the age of 19. |
4 | | (d) Educational expenses may include, but shall not be |
5 | | limited to, the following: |
6 | | (1) except for good cause shown, the actual cost of the |
7 | | child's post-secondary expenses, including tuition and |
8 | | fees, provided that the cost for tuition and fees does not |
9 | | exceed the amount of tuition and fees paid by a student at |
10 | | the University of Illinois at Urbana-Champaign for the same |
11 | | academic year; |
12 | | (2) except for good cause shown, the actual costs of |
13 | | the child's housing expenses, whether on-campus or |
14 | | off-campus, provided that the housing expenses do not |
15 | | exceed the cost for the same academic year of a |
16 | | double-occupancy student room, with a standard meal plan, |
17 | | in a residence hall operated by the University of Illinois |
18 | | at Urbana-Champaign; |
19 | | (3) the actual costs of the child's medical expenses, |
20 | | including medical insurance, and dental expenses; |
21 | | (4) the reasonable living expenses of the child during |
22 | | the academic year and periods of recess: |
23 | | (A) if the child is a resident student attending a |
24 | | post-secondary educational program; or |
25 | | (B) if the child is living with one party at that |
26 | | party's home and attending a post-secondary |
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1 | | educational program as a non-resident student, in |
2 | | which case the living expenses include an amount that |
3 | | pays for the reasonable cost of the child's food, |
4 | | utilities, and transportation; and |
5 | | (5) the cost of books and other supplies necessary to |
6 | | attend college. |
7 | | (e) Sums may be ordered payable to the child, to either |
8 | | party, or to the educational institution, directly or through a |
9 | | special account or trust created for that purpose, as the court |
10 | | sees fit. |
11 | | (f) If educational expenses are ordered payable, each party |
12 | | and the child shall sign any consent necessary for the |
13 | | educational institution to provide a supporting party with |
14 | | access to the child's academic transcripts, records, and grade |
15 | | reports. The consent shall not apply to any non-academic |
16 | | records. Failure to execute the required consent may be a basis |
17 | | for a modification or termination of any order entered under |
18 | | this Section. Unless the court specifically finds that the |
19 | | child's safety would be jeopardized, each party is entitled to |
20 | | know the name of the educational institution the child attends. |
21 | | (g) The authority under this Section to make provision for |
22 | | educational expenses terminates when the child either: fails to |
23 | | maintain a cumulative "C" grade point average, except in the |
24 | | event of illness or other good cause shown; attains the age of |
25 | | 23; receives a baccalaureate degree; or marries. A child's |
26 | | enlisting in the armed forces, being incarcerated, or becoming |
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1 | | pregnant does not terminate the court's authority to make |
2 | | provisions for the educational expenses for the child under |
3 | | this Section. |
4 | | (h) An account established prior to the dissolution that is |
5 | | to be used for the child's post-secondary education, that is an |
6 | | account in a state tuition program under Section 529 of the |
7 | | Internal Revenue Code, or that is some other college savings |
8 | | plan, is to be considered by the court to be a resource of the |
9 | | child, provided that any post-judgment contribution made by a |
10 | | party to such an account is to be considered a contribution |
11 | | from that party. |
12 | | (i) The child is not a third party beneficiary to the |
13 | | settlement agreement or judgment between the parties after |
14 | | trial and is not entitled to file a petition for contribution. |
15 | | If the parties' settlement agreement describes the manner in |
16 | | which a child's educational expenses will be paid, or if the |
17 | | court makes an award pursuant to this Section, then the parties |
18 | | are responsible pursuant to that agreement or award for the |
19 | | child's educational expenses, but in no event shall the court |
20 | | consider the child a third party beneficiary of that provision. |
21 | | In the event of the death or legal disability of a party who |
22 | | would have the right to file a petition for contribution, the |
23 | | child of the party may file a petition for contribution. |
24 | | who have
attained majority in the following instances:
|
25 | | (1) When the child is mentally or physically disabled |
26 | | and not otherwise
emancipated, an application for support |
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1 | | may be made before or after the child
has attained |
2 | | majority.
|
3 | | (2) The court may also make provision for the |
4 | | educational expenses of the
child or children of the |
5 | | parties, whether of minor or majority age, and an
|
6 | | application for educational expenses may be made before or |
7 | | after the child has
attained majority, or after the death |
8 | | of either parent. The authority under
this Section to make |
9 | | provision for educational expenses extends not only to
|
10 | | periods of college education or professional or other |
11 | | training after graduation
from high school, but also to any |
12 | | period during which the child of the parties
is still |
13 | | attending high school, even though he or she attained the |
14 | | age of
19.
The educational expenses may include, but shall |
15 | | not be limited to, room, board,
dues, tuition, |
16 | | transportation, books, fees, registration and application |
17 | | costs,
medical expenses including medical insurance, |
18 | | dental expenses, and living
expenses during the school year |
19 | | and periods of recess, which sums may be
ordered payable to |
20 | | the child, to either parent, or to the educational
|
21 | | institution, directly or through a special account or trust |
22 | | created for
that purpose, as the court sees fit.
|
23 | | If educational expenses are ordered payable, each |
24 | | parent and the child
shall
sign any consents necessary for |
25 | | the educational institution to provide the
supporting |
26 | | parent with access to the child's academic transcripts, |
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1 | | records, and
grade reports. The consents shall not apply to |
2 | | any non-academic records.
Failure to execute the required |
3 | | consent may be a basis for a modification or
termination of |
4 | | any order entered under this Section. Unless the court |
5 | | specifically finds that the child's safety would be |
6 | | jeopardized, each parent is entitled to know the name of |
7 | | the educational institution the child attends. This |
8 | | amendatory Act of the 95th General Assembly applies to all |
9 | | orders entered under this paragraph (2) on or after the |
10 | | effective date of this amendatory Act of the 95th General |
11 | | Assembly.
|
12 | | The authority under this Section to make provision for |
13 | | educational
expenses, except where the child is mentally or |
14 | | physically disabled and not
otherwise emancipated, |
15 | | terminates when the child receives
a baccalaureate degree.
|
16 | | (j) (b) In making awards under this Section paragraph (1) |
17 | | or (2) of subsection (a) , or
pursuant to a petition or motion |
18 | | to decrease, modify, or terminate any such
award, the court |
19 | | shall consider all relevant factors that appear reasonable
and |
20 | | necessary, including:
|
21 | | (1) The present and future financial resources of both |
22 | | parties to meet their needs, including, but not limited to, |
23 | | savings for retirement The financial resources of both |
24 | | parents .
|
25 | | (2) The standard of living the child would have enjoyed |
26 | | had the marriage not been dissolved.
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1 | | (3) The financial resources of the child.
|
2 | | (4) The child's academic performance.
|
3 | | (k) The establishment of an obligation to pay under this |
4 | | Section is retroactive only to the date of filing a petition. |
5 | | The right to enforce a prior obligation to pay may be enforced |
6 | | either before or after the obligation is incurred. |
7 | | (Source: P.A. 95-954, eff. 8-29-08.)
|
8 | | (750 ILCS 5/513.5 new) |
9 | | Sec. 513.5. Support for a non-minor child with a |
10 | | disability. |
11 | | (a) The court may award sums of money out of the property |
12 | | and income of either or both parties or the estate of a |
13 | | deceased parent, as equity may require, for the support of a |
14 | | child of the parties who has attained majority when the child |
15 | | is mentally or physically disabled and not otherwise |
16 | | emancipated. The sums awarded may be paid to one of the |
17 | | parents, to a trust created by the parties for the benefit of |
18 | | the non-minor child with a disability, or irrevocably to a |
19 | | special needs trust, established by the parties and for the |
20 | | sole benefit of the non-minor child with a disability, pursuant |
21 | | to subdivisions (d)(4)(A) or (d)(4)(C) of 42 U.S.C. 1396p, |
22 | | Section 15.1 of the Trusts and Trustees Act, and applicable |
23 | | provisions of the Social Security Administration Program |
24 | | Operating Manual System. An application for support for a |
25 | | non-minor disabled child may be made before or after the child |
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1 | | has attained majority. Unless an application for educational |
2 | | expenses is made for a mentally or physically disabled child |
3 | | under Section 513, the disability that is the basis for the |
4 | | application for support must have arisen while the child was |
5 | | eligible for support under Section 505 or 513 of this Act. |
6 | | (b) In making awards under this Section, or pursuant to a |
7 | | petition or motion to decrease, modify, or terminate any such |
8 | | award, the court shall consider all relevant factors that |
9 | | appear reasonable and necessary, including: |
10 | | (1) the present and future financial resources of both |
11 | | parties to meet their needs, including, but not limited to, |
12 | | savings for retirement; |
13 | | (2) the standard of living the child would have enjoyed |
14 | | had the marriage not been dissolved. The court may consider |
15 | | factors that are just and equitable; |
16 | | (3) the financial resources of the child; and |
17 | | (4) any financial or other resource provided to or for |
18 | | the child including, but not limited to, any Supplemental |
19 | | Security Income, any home-based support provided pursuant |
20 | | to the Home-Based Support Services Law for Mentally |
21 | | Disabled Adults, and any other State, federal, or local |
22 | | benefit available to the non-minor disabled child. |
23 | | (c) As used in this Section: |
24 | | A "disabled" individual means an individual who has a |
25 | | physical or
mental impairment that substantially limits a major |
26 | | life activity, has a record
of such an impairment, or is |
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1 | | regarded as having such an impairment. |
2 | | "Disability" means a mental or physical impairment that |
3 | | substantially limits a major life activity. |
4 | | (750 ILCS 5/Pt. VI heading) |
5 | | PART VI
|
6 | | ALLOCATION OF PARENTAL RESPONSIBILITIES
CUSTODY
|
7 | | (750 ILCS 5/600 new) |
8 | | Sec. 600. Definitions. For purposes of this Part VI: |
9 | | (a) "Abuse" has the meaning ascribed to that term in |
10 | | Section 103 of the Illinois Domestic Violence Act of 1986. |
11 | | (b) "Allocation judgment" means a judgment allocating |
12 | | parental responsibilities. |
13 | | (c) "Caretaking functions" means tasks that involve |
14 | | interaction with a child or that direct, arrange, and supervise |
15 | | the interaction with and care of a child provided by others, or |
16 | | for obtaining the resources allowing for the provision of these |
17 | | functions. The term includes, but is not limited to, the |
18 | | following: |
19 | | (1) satisfying a child's nutritional needs; managing a |
20 | | child's bedtime and wake-up routines; caring for a child |
21 | | when the child is sick or injured; being attentive to a |
22 | | child's personal hygiene needs, including washing, |
23 | | grooming, and dressing; playing with a child and ensuring |
24 | | the child attends scheduled extracurricular activities; |
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1 | | protecting a child's physical safety; and providing |
2 | | transportation for a child; |
3 | | (2) directing a child's various developmental needs, |
4 | | including the acquisition of motor and language skills, |
5 | | toilet training, self-confidence, and maturation; |
6 | | (3) providing discipline, giving instruction in |
7 | | manners, assigning and supervising chores, and performing |
8 | | other tasks that attend to a child's needs for behavioral |
9 | | control and self-restraint; |
10 | | (4) ensuring the child attends school, including |
11 | | remedial and special services appropriate to the child's |
12 | | needs and interests, communicating with teachers and |
13 | | counselors, and supervising homework; |
14 | | (5) helping a child develop and maintain appropriate |
15 | | interpersonal relationships with peers, siblings, and |
16 | | other family members; |
17 | | (6) ensuring the child attends medical appointments |
18 | | and is available for medical follow-up and meeting the |
19 | | medical needs of the child in the home; |
20 | | (7) providing moral and ethical guidance for a child; |
21 | | and |
22 | | (8) arranging alternative care for a child by a family |
23 | | member, babysitter, or other child care provider or |
24 | | facility, including investigating such alternatives, |
25 | | communicating with providers, and supervising such care. |
26 | | (d) "Parental responsibilities" means both parenting time |
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1 | | and significant decision-making responsibilities with respect |
2 | | to a child. |
3 | | (e) "Parenting time" means the time during which a parent |
4 | | is responsible for exercising caretaking functions and |
5 | | non-significant decision-making responsibilities with respect |
6 | | to the child. |
7 | | (f) "Parenting plan" means a written agreement that |
8 | | allocates significant decision-making responsibilities, |
9 | | parenting time, or both. |
10 | | (g) "Relocation" means: |
11 | | (1) a change of residence from the child's current |
12 | | primary residence located in the county of Cook, DuPage, |
13 | | Kane, Lake, McHenry, or Will to a new residence within this |
14 | | State that is more than 25 miles from the child's current |
15 | | residence; |
16 | | (2) a change of residence from the child's current |
17 | | primary residence located in a county not listed in |
18 | | paragraph (1) to a new residence within this State that is |
19 | | more than 50 miles from the child's current primary |
20 | | residence; or |
21 | | (3)
a change of residence from the child's current |
22 | | primary residence to a residence outside the borders of |
23 | | this State that is more than 25 miles from the current |
24 | | primary residence. |
25 | | (h) "Religious upbringing" means the choice of religion or |
26 | | denomination of a religion, religious schooling, religious |
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1 | | training, or participation in religious customs or practices. |
2 | | (i) "Restriction of parenting time" means any limitation or |
3 | | condition placed on parenting time, including supervision. |
4 | | (j) "Right of first refusal" has the meaning provided in |
5 | | subsection (b) of Section 602.3 of this Act. |
6 | | (k) "Significant decision-making" means deciding issues of |
7 | | long-term importance in the life of a child. |
8 | | (l) "Step-parent" means a person married to a child's |
9 | | parent, including a person married to the child's parent |
10 | | immediately prior to the parent's death. |
11 | | (m) "Supervision" means the presence of a third party |
12 | | during a parent's exercise of parenting time. |
13 | | (750 ILCS 5/601.2 new) |
14 | | Sec. 601.2. Jurisdiction; commencement of proceeding.
|
15 | | (a) A court of this State that is competent to allocate |
16 | | parental responsibilities has jurisdiction to make such an |
17 | | allocation in original or modification proceedings as provided |
18 | | in Section 201 of the Uniform Child-Custody Jurisdiction and |
19 | | Enforcement Act as adopted by this State. |
20 | | (b) A proceeding for allocation of parental |
21 | | responsibilities with respect to a child is commenced in the |
22 | | court: |
23 | | (1) by filing a petition for dissolution of marriage or |
24 | | legal separation or declaration of invalidity of marriage; |
25 | | (2) by filing a petition for allocation of parental |
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1 | | responsibilities with respect to the child in the county in |
2 | | which the child resides; |
3 | | (3) by a person other than a parent, by filing a |
4 | | petition for
allocation of parental responsibilities in |
5 | | the county in which the child is permanently resident
or |
6 | | found, but only if he or she is not in the physical custody |
7 | | of one of his
or her parents;
|
8 | | (4) by a step-parent, by filing a petition, if all of |
9 | | the following
circumstances are met:
|
10 | | (A) the parent having the majority of parenting |
11 | | time is deceased or is disabled and cannot perform
the |
12 | | duties of a parent to the child;
|
13 | | (B) the step-parent provided for the care, |
14 | | control, and welfare of the
child prior to the |
15 | | initiation of proceedings for allocation of parental |
16 | | responsibilities;
|
17 | | (C) the child wishes to live with the step-parent; |
18 | | and
|
19 | | (D) it is alleged to be in the best interests and |
20 | | welfare of the
child to live with the step-parent as |
21 | | provided in Section 602.5 of this Act; or |
22 | | (5) when one of the parents is deceased, by a |
23 | | grandparent who is a parent or step-parent of a deceased |
24 | | parent, by filing a petition, if one or more of the |
25 | | following existed at the time of the parent's death: |
26 | | (A) the surviving parent had been absent from the |
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1 | | marital abode for more than one month without the |
2 | | spouse knowing his or her whereabouts; |
3 | | (B) the surviving parent was in State or federal |
4 | | custody; or |
5 | | (C) the surviving parent had: (i) received |
6 | | supervision for or been convicted of any violation of |
7 | | Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, |
8 | | 11-1.70, 12C-5, 12C-10, 12C-35, 12C-40, 12C-45, 18-6, |
9 | | 19-6, or Article 12 of the Criminal Code of 1961 or the |
10 | | Criminal Code of 2012 directed towards the deceased |
11 | | parent or the child; or (ii) received supervision or |
12 | | been convicted of violating an order of protection |
13 | | entered under Section 217, 218, or 219 of the Illinois |
14 | | Domestic Violence Act of 1986 for the protection of the |
15 | | deceased parent or the child.
|
16 | | (c) When a proceeding for allocation of parental |
17 | | responsibilities is commenced, the party commencing the action |
18 | | must, at least 30 days before any hearing on the petition, |
19 | | serve a written notice and a copy of the petition on the |
20 | | child's parent, guardian, person currently allocated parental |
21 | | responsibilities pursuant to subdivision (b)(4) or (b)(5) of |
22 | | Section 601.2, and any person with a pending motion for |
23 | | allocation of parental responsibilities with respect to the |
24 | | child. Nothing in this Section shall preclude a party in a |
25 | | proceeding for allocation of parental responsibilities from |
26 | | moving for a temporary order under Section 603.5. |
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1 | | (750 ILCS 5/602.3) |
2 | | Sec. 602.3. Care of minor children; right of first refusal. |
3 | | (a) If the court awards parenting time to both parents |
4 | | joint custody under Section 602.1 or visitation rights under |
5 | | Section 607 602.7 or 602.8 , the court may consider, consistent |
6 | | with the
best interests interest of the child as defined in |
7 | | Section 602.7 Section 602 , whether to award to
one or both of |
8 | | the parties the right of first refusal to provide child care |
9 | | for
the minor child or children during the other parent's |
10 | | normal parenting
time, unless the need for child care is |
11 | | attributable to an emergency. |
12 | | (b) As used in this Section, "right of first refusal" means |
13 | | that if a party
intends to leave the minor child or children |
14 | | with a substitute child-care provider for
a significant period |
15 | | of time, that party must first offer the other party an
|
16 | | opportunity to personally care for the minor child or children. |
17 | | The parties
may agree to a right of first refusal that is |
18 | | consistent with the best interests
interest of the minor child |
19 | | or children. If there is no agreement and
the court determines |
20 | | that a right of first refusal is in the best interests interest |
21 | | of
the minor child or children, the court shall consider and |
22 | | make
provisions in its order for: |
23 | | (1) the length and kind of child-care requirements |
24 | | invoking the right
of first refusal; |
25 | | (2) notification to the other parent and for his or her
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1 | | response; |
2 | | (3) transportation requirements; and |
3 | | (4) any other action necessary to protect and promote |
4 | | the best
interest of the minor child or children. |
5 | | (c) The right of first refusal may be enforced under |
6 | | Section 607.5 607.1 of this Act. |
7 | | (d) The right of first refusal is terminated upon the |
8 | | termination of the allocation of parental responsibilities or |
9 | | parenting time custody or visitation rights .
|
10 | | (Source: P.A. 98-462, eff. 1-1-14.) |
11 | | (750 ILCS 5/602.5 new) |
12 | | Sec. 602.5. Allocation of parental responsibilities: |
13 | | decision-making. |
14 | | (a) Generally. The court shall allocate decision-making |
15 | | responsibilities according to the child's best interests. |
16 | | Nothing in this Act requires that each parent be allocated |
17 | | decision-making responsibilities. |
18 | | (b) Allocation of significant decision-making |
19 | | responsibilities. Unless the parents otherwise agree in |
20 | | writing on an allocation of significant decision-making |
21 | | responsibilities, or the issue of the allocation of parental |
22 | | responsibilities has been reserved under Section 401, the court |
23 | | shall make the determination. The court shall allocate to one |
24 | | or both of the parents the significant decision-making |
25 | | responsibility for each significant issue affecting the child. |
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1 | | Those significant issues shall include, without limitation, |
2 | | the following: |
3 | | (1) Education, including the choice of schools and |
4 | | tutors. |
5 | | (2) Health, including all decisions relating to the |
6 | | medical, dental, and psychological needs of the child and |
7 | | to the treatments arising or resulting from those needs. |
8 | | (3) Religion, subject to the following provisions: |
9 | | (A) The court shall allocate decision-making |
10 | | responsibility for the child's religious upbringing in |
11 | | accordance with any express or implied agreement |
12 | | between the parents. |
13 | | (B) The court shall consider evidence of the |
14 | | parents' past conduct as to the child's religious |
15 | | upbringing in allocating decision-making |
16 | | responsibilities consistent with demonstrated past |
17 | | conduct in the absence of an express or implied |
18 | | agreement between the parents. |
19 | | (C) The court shall not allocate any aspect of the |
20 | | child's religious upbringing if it determines that the |
21 | | parents do not or did not have an express or implied |
22 | | agreement for such religious upbringing or that there |
23 | | is insufficient evidence to demonstrate a course of |
24 | | conduct regarding the child's religious upbringing |
25 | | that could serve as a basis for any such order. |
26 | | (4) Extracurricular activities. |
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1 | | (c) Determination of child's best interests. In |
2 | | determining the child's best interests for purposes of |
3 | | allocating significant decision-making responsibilities, the |
4 | | court shall consider all relevant factors, including, without |
5 | | limitation, the following: |
6 | | (1) the wishes of the child, taking into account the |
7 | | child's maturity and ability to express reasoned and |
8 | | independent preferences as to decision-making; |
9 | | (2) the child's adjustment to his or her home, school, |
10 | | and community; |
11 | | (3) the mental and physical health of all individuals |
12 | | involved; |
13 | | (4) the ability of the parents to cooperate to make |
14 | | decisions, or the level of conflict between the parties |
15 | | that may affect their ability to share decision-making; |
16 | | (5) the level of each parent's participation in past |
17 | | significant decision-making with respect to the child; |
18 | | (6) any prior agreement or course of conduct between |
19 | | the parents relating to decision-making with respect to the |
20 | | child;
|
21 | | (7) the wishes of the parents; |
22 | | (8) the child's needs; |
23 | | (9) the distance between the parents' residences, the |
24 | | cost and difficulty of transporting the child, each |
25 | | parent's and the child's daily schedules, and the ability |
26 | | of the parents to cooperate in the arrangement; |
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1 | | (10) whether a restriction on decision-making is |
2 | | appropriate under Section 603.10;
|
3 | | (11) the willingness and ability of each parent to |
4 | | facilitate and encourage a close and continuing |
5 | | relationship between the other parent and the child; |
6 | | (12) the physical violence or threat of physical |
7 | | violence by the child's parent directed against the child; |
8 | | (13) the occurrence of abuse against the child or other |
9 | | member of the child's household; |
10 | | (14) whether one of the parents is a sex offender, and |
11 | | if so, the exact nature of the offense and what, if any, |
12 | | treatment in which the parent has successfully |
13 | | participated; and
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14 | | (15) any other factor that the court expressly finds to |
15 | | be relevant.
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16 | | (d) A parent shall have sole responsibility for making |
17 | | routine decisions with respect to the child and for emergency |
18 | | decisions affecting the child's health and safety during that |
19 | | parent's parenting time. |
20 | | (e) In allocating significant decision-making |
21 | | responsibilities, the court shall not consider conduct of a |
22 | | parent that does not affect that parent's relationship to the |
23 | | child. |
24 | | (750 ILCS 5/602.7 new)
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25 | | Sec. 602.7. Allocation of parental responsibilities: |
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1 | | parenting time. |
2 | | (a) Best interests. The court shall allocate parenting time |
3 | | according to the child's best interests.
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4 | | (b) Allocation of parenting time. Unless the parents |
5 | | present a mutually agreed written parenting plan and that plan |
6 | | is approved by the court, the court shall allocate parenting |
7 | | time. It is presumed both parents are fit and the court shall |
8 | | not place any restrictions on parenting time as defined in |
9 | | Section 600 and described in Section 603.10, unless it finds by |
10 | | a preponderance of the evidence that a parent's exercise of |
11 | | parenting time would seriously endanger the child's physical, |
12 | | mental, moral, or emotional health. |
13 | | In determining the child's best interests for purposes of |
14 | | allocating parenting time, the court shall consider all |
15 | | relevant factors, including, without limitation, the |
16 | | following: |
17 | | (1) the wishes of each parent seeking parenting time; |
18 | | (2) the wishes of the child, taking into account the |
19 | | child's maturity and ability to express reasoned and |
20 | | independent preferences as to parenting time; |
21 | | (3) the amount of time each parent spent performing |
22 | | caretaking functions with respect to the child in the 24 |
23 | | months preceding the filing of any petition for allocation |
24 | | of parental responsibilities or, if the child is under 2 |
25 | | years of age, since the child's birth; |
26 | | (4) any prior agreement or course of conduct between |
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1 | | the parents relating to caretaking functions with respect |
2 | | to the child; |
3 | | (5) the interaction and interrelationship of the child |
4 | | with his or her parents and siblings and with any other |
5 | | person who may significantly affect the child's best |
6 | | interests; |
7 | | (6) the child's adjustment to his or her home, school, |
8 | | and community; |
9 | | (7) the mental and physical health of all individuals |
10 | | involved; |
11 | | (8) the child's needs; |
12 | | (9) the distance between the parents' residences, the |
13 | | cost and difficulty of transporting the child, each |
14 | | parent's and the child's daily schedules, and the ability |
15 | | of the parents to cooperate in the arrangement; |
16 | | (10) whether a restriction on parenting time is |
17 | | appropriate; |
18 | | (11) the physical violence or threat of physical |
19 | | violence by the child's parent directed against the child |
20 | | or other member of the child's household; |
21 | | (12) the willingness and ability of each parent to |
22 | | place the needs of the child ahead of his or her own needs; |
23 | | (13) the willingness and ability of each parent to |
24 | | facilitate and encourage a close and continuing |
25 | | relationship between the other parent and the child; |
26 | | (14) the occurrence of abuse against the child or other |
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1 | | member of the child's household; |
2 | | (15) whether one of the parents is a convicted sex |
3 | | offender or lives with a convicted sex offender and, if so, |
4 | | the exact nature of the offense and what if any treatment |
5 | | the offender has successfully participated in; the parties |
6 | | are entitled to a hearing on the issues raised in this |
7 | | paragraph (15); |
8 | | (16) the terms of a parent's military family-care plan |
9 | | that a parent must complete before deployment if a parent |
10 | | is a member of the United States Armed Forces who is being |
11 | | deployed; and |
12 | | (17) any other factor that the court expressly finds to |
13 | | be relevant. |
14 | | (c) In allocating parenting time, the court shall not |
15 | | consider conduct of a parent that does not affect that parent's |
16 | | relationship to the child.
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17 | | (d) Upon motion, the court may allow a parent who is |
18 | | deployed or who has orders to be deployed as a member of the |
19 | | United States Armed Forces to designate a person known to the |
20 | | child to exercise reasonable substitute visitation on behalf of |
21 | | the deployed parent, if the court determines that substitute |
22 | | visitation is in the best interests of the child. In |
23 | | determining whether substitute visitation is in the best |
24 | | interests of the child, the court shall consider all of the |
25 | | relevant factors listed in subsection (b) of this Section and |
26 | | apply those factors to the person designated as a substitute |
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1 | | for the deployed parent for visitation purposes. Visitation |
2 | | orders entered under this subsection are subject to subsections |
3 | | (e) and (f) of Section 602.9 and subsections (c) and (d) of |
4 | | Section 603.10. |
5 | | (e) If the street address of a parent is not identified |
6 | | pursuant to Section 708 of this Act, the court shall require |
7 | | the parties to identify reasonable alternative arrangements |
8 | | for parenting time by the other parent including, but not |
9 | | limited to, parenting time of the minor child at the residence |
10 | | of another person or at a local public or private facility. |
11 | | (750 ILCS 5/602.8 new) |
12 | | Sec. 602.8. Parenting time by parents not allocated |
13 | | significant decision-making responsibilities. |
14 | | (a) A parent who has established parentage under the laws |
15 | | of this State and who is not granted significant |
16 | | decision-making responsibilities for a child is entitled to |
17 | | reasonable parenting time with the child, subject to |
18 | | subsections (d) and (e) of Section 603.10 of this Act, unless |
19 | | the court finds, after a hearing, that the parenting time would |
20 | | seriously endanger the child's mental, moral, or physical |
21 | | health or significantly impair the child's emotional |
22 | | development. The order setting forth parenting time shall be in |
23 | | the child's best interests pursuant to the factors set forth in |
24 | | subsection (b) of Section 602.7 of this Act. |
25 | | (b) The court may modify an order granting or denying |
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1 | | parenting time pursuant to Section 610.5 of this Act. The court |
2 | | may restrict parenting time, and modify an order restricting |
3 | | parenting time, pursuant to Section 603.10 of this Act. |
4 | | (c) If the street address of the parent allocated parental |
5 | | responsibilities is not identified, pursuant to Section 708 of |
6 | | this Act, the court shall require the parties to identify |
7 | | reasonable alternative arrangements for parenting time by a |
8 | | parent not allocated parental responsibilities, including but |
9 | | not limited to parenting time of the minor child at the |
10 | | residence of another person or at a local public or private |
11 | | facility. |
12 | | (750 ILCS 5/602.9 new) |
13 | | Sec. 602.9. Visitation by certain non-parents. |
14 | | (a) As used in this Section: |
15 | | (1) "electronic communication" means time that a |
16 | | grandparent, great-grandparent, sibling, or step-parent |
17 | | spends with a child during which the child is not in the |
18 | | person's actual physical custody, but which is facilitated |
19 | | by the use of communication tools such as the telephone, |
20 | | electronic mail, instant messaging, video conferencing or |
21 | | other wired or wireless technologies via the Internet, or |
22 | | another medium of communication; |
23 | | (2) "sibling" means a brother or sister either of the |
24 | | whole blood or the half blood, stepbrother, or stepsister |
25 | | of the minor child; |
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1 | | (3) "step-parent" means a person married to a child's |
2 | | parent, including a person married to the child's parent |
3 | | immediately prior to the parent's death; and |
4 | | (4) "visitation" means in-person time spent between a |
5 | | child and the child's grandparent, great-grandparent, |
6 | | sibling, step-parent, or any person designated under |
7 | | subsection (d) of Section 602.7. In appropriate |
8 | | circumstances, visitation may include electronic |
9 | | communication under conditions and at times determined by |
10 | | the court. |
11 | | (b) General provisions. |
12 | | (1) An appropriate person, as identified in subsection |
13 | | (c) of this Section, may bring an action in circuit court |
14 | | by petition, or by filing a petition in a pending |
15 | | dissolution proceeding or any other proceeding that |
16 | | involves parental responsibilities or visitation issues |
17 | | regarding the child, requesting visitation with the child |
18 | | pursuant to this Section. If there is not a pending |
19 | | proceeding involving parental responsibilities or |
20 | | visitation with the child, the petition for visitation with |
21 | | the child must be filed in the county in which the child |
22 | | resides. Notice of the petition shall be given as provided |
23 | | in subsection (c) of Section 601.2 of this Act. |
24 | | (2) This Section does not apply to a child: |
25 | | (A) in whose interests a petition is pending under |
26 | | Section 2-13 of the Juvenile Court Act of 1987; or |
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1 | | (B) in whose interests a petition to adopt by an |
2 | | unrelated person is pending under the Adoption Act; or |
3 | | (C) who has been voluntarily surrendered by the |
4 | | parent or parents, except for a surrender to the |
5 | | Department of Children and Family Services or a foster |
6 | | care facility; or |
7 | | (D) who has been previously adopted by an |
8 | | individual or individuals who are not related to the |
9 | | biological parents of the child or who is the subject |
10 | | of a pending adoption petition by an individual or |
11 | | individuals who are not related to the biological |
12 | | parents of the child; or |
13 | | (E) who has been relinquished pursuant to the |
14 | | Abandoned Newborn Infant Protection Act. |
15 | | (3) A petition for visitation may be filed under this |
16 | | Section only if there has been an unreasonable denial of |
17 | | visitation by a parent and the denial has caused the child |
18 | | undue mental, physical, or emotional harm. |
19 | | (4) There is a rebuttable presumption that a fit |
20 | | parent's actions and decisions regarding grandparent, |
21 | | great-grandparent, sibling, or step-parent visitation are |
22 | | not harmful to the child's mental, physical, or emotional |
23 | | health. The burden is on the party filing a petition under |
24 | | this Section to prove that the parent's actions and |
25 | | decisions regarding visitation will cause undue harm to the |
26 | | child's mental, physical, or emotional health. |
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1 | | (5) In determining whether to grant visitation, the |
2 | | court shall consider the following: |
3 | | (A) the wishes of the child, taking into account |
4 | | the child's maturity and ability to express reasoned |
5 | | and independent preferences as to visitation; |
6 | | (B) the mental and physical health of the child; |
7 | | (C) the mental and physical health of the |
8 | | grandparent, great-grandparent, sibling, or |
9 | | step-parent; |
10 | | (D) the length and quality of the prior |
11 | | relationship between the child and the grandparent, |
12 | | great-grandparent, sibling, or step-parent; |
13 | | (E) the good faith of the party in filing the |
14 | | petition; |
15 | | (F) the good faith of the person denying |
16 | | visitation; |
17 | | (G) the quantity of the visitation time requested |
18 | | and the potential adverse impact that visitation would |
19 | | have on the child's customary activities; |
20 | | (H) any other fact that establishes that the loss |
21 | | of the relationship between the petitioner and the |
22 | | child is likely to unduly harm the child's mental, |
23 | | physical, or emotional health; and |
24 | | (I) whether visitation can be structured in a way |
25 | | to minimize the child's exposure to conflicts between |
26 | | the adults. |
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1 | | (6) Any visitation rights granted under this Section |
2 | | before the filing of a petition for adoption of the child |
3 | | shall automatically terminate by operation of law upon the |
4 | | entry of an order terminating parental rights or granting |
5 | | the adoption of the child, whichever is earlier. If the |
6 | | person or persons who adopted the child are related to the |
7 | | child, as defined by Section 1 of the Adoption Act, any |
8 | | person who was related to the child as grandparent, |
9 | | great-grandparent, or sibling prior to the adoption shall |
10 | | have standing to bring an action under this Section |
11 | | requesting visitation with the child. |
12 | | (7) The court may order visitation rights for the |
13 | | grandparent, great-grandparent, sibling, or step-parent |
14 | | that include reasonable access without requiring overnight |
15 | | or possessory visitation. |
16 | | (c) Visitation by grandparents, great-grandparents, |
17 | | step-parents, and siblings. |
18 | | (1) Grandparents, great-grandparents, step-parents, |
19 | | and siblings of a minor child who is one year old or older |
20 | | may bring a petition for visitation and electronic |
21 | | communication under this Section if there is an |
22 | | unreasonable denial of visitation by a parent that causes |
23 | | undue mental, physical, or emotional harm to the child and |
24 | | if at least one of the following conditions exists: |
25 | | (A) the child's other parent is deceased or has |
26 | | been missing for at least 90 days. For the purposes of |
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1 | | this subsection a parent is considered to be missing if |
2 | | the parent's location has not been determined and the |
3 | | parent has been reported as missing to a law |
4 | | enforcement agency; or |
5 | | (B) a parent of the child is incompetent as a |
6 | | matter of law; or |
7 | | (C) a parent has been incarcerated in jail or |
8 | | prison for a period in excess of 90 days immediately |
9 | | prior to the filing of the petition; or |
10 | | (D) the child's parents have been granted a |
11 | | dissolution of marriage or have been legally separated |
12 | | from each other or there is pending a dissolution |
13 | | proceeding involving a parent of the child or another |
14 | | court proceeding involving parental responsibilities |
15 | | or visitation of the child (other than an adoption |
16 | | proceeding of an unrelated child, a proceeding under |
17 | | Article II of the Juvenile Court Act of 1987, or an |
18 | | action for an order of protection under the Illinois |
19 | | Domestic Violence Act of 1986 or Article 112A of the |
20 | | Code of Criminal Procedure of 1963) and at least one |
21 | | parent does not object to the grandparent, |
22 | | great-grandparent, step-parent, or sibling having |
23 | | visitation with the child. The visitation of the |
24 | | grandparent, great-grandparent, step-parent, or |
25 | | sibling must not diminish the parenting time of the |
26 | | parent who is not related to the grandparent, |
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1 | | great-grandparent, step-parent, or sibling seeking |
2 | | visitation; or |
3 | | (E) the child is born to parents who are not |
4 | | married to each other, the parents are not living |
5 | | together, and the petitioner is a grandparent, |
6 | | great-grandparent, step-parent, or sibling of the |
7 | | child, and parentage has been established by a court of |
8 | | competent jurisdiction. |
9 | | (2) In addition to the factors set forth in subdivision |
10 | | (b)(5) of this Section, the court should consider: |
11 | | (A) whether the child resided with the petitioner |
12 | | for at least 6 consecutive months with or without a |
13 | | parent present; |
14 | | (B) whether the child had frequent and regular |
15 | | contact or visitation with the petitioner for at least |
16 | | 12 consecutive months; and |
17 | | (C) whether the grandparent, great-grandparent, |
18 | | sibling, or step-parent was a primary caretaker of the |
19 | | child for a period of not less than 6 consecutive |
20 | | months within the 24-month period immediately |
21 | | preceding the commencement of the proceeding. |
22 | | (3) An order granting visitation privileges under this |
23 | | Section is subject to subsections (c) and (d) of Section |
24 | | 603.10. |
25 | | (4) A petition for visitation privileges may not be |
26 | | filed pursuant to this subsection (c) by the parents or |
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1 | | grandparents of a parent of the child if parentage between |
2 | | the child and the related parent has not been legally |
3 | | established. |
4 | | (d) Modification of visitation orders. |
5 | | (1) Unless by stipulation of the parties, no motion to |
6 | | modify a grandparent, great-grandparent, sibling, or |
7 | | step-parent visitation order may be made earlier than 2 |
8 | | years after the date the order was filed, unless the court |
9 | | permits it to be made on the basis of affidavits that there |
10 | | is reason to believe the child's present environment may |
11 | | endanger seriously the child's mental, physical, or |
12 | | emotional health. |
13 | | (2) The court shall not modify an order that grants |
14 | | visitation to a grandparent, great-grandparent, sibling, |
15 | | or step-parent unless it finds by clear and convincing |
16 | | evidence, upon the basis of facts that have arisen since |
17 | | the prior visitation order or that were unknown to the |
18 | | court at the time of entry of the prior visitation order, |
19 | | that a change has occurred in the circumstances of the |
20 | | child or his or her parent, and that the modification is |
21 | | necessary to protect the mental, physical, or emotional |
22 | | health of the child. The court shall state in its decision |
23 | | specific findings of fact in support of its modification or |
24 | | termination of the grandparent, great-grandparent, |
25 | | sibling, or step-parent visitation. A child's parent may |
26 | | always petition to modify visitation upon changed |
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1 | | circumstances when necessary to promote the child's best |
2 | | interests. |
3 | | (3) Notice of a motion requesting modification of a |
4 | | visitation order shall be provided as set forth in |
5 | | subsection (c) of Section 601.2 of this Act. |
6 | | (4) Attorney's fees and costs shall be assessed against |
7 | | a party seeking modification of the visitation order if the |
8 | | court finds that the modification action is vexatious and |
9 | | constitutes harassment. |
10 | | (e) No child's grandparent, great-grandparent, sibling, or |
11 | | step-parent, or any person to whom the court is considering |
12 | | granting visitation privileges pursuant to subsection (d) of |
13 | | Section 602.7, who was convicted of any offense involving an |
14 | | illegal sex act perpetrated upon a victim less than 18 years of |
15 | | age including, but not limited to, offenses for violations of |
16 | | Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, |
17 | | or Article 12 of the Criminal Code of 1961 or the Criminal Code |
18 | | of 2012, is entitled to visitation while incarcerated or while |
19 | | on parole, probation, conditional discharge, periodic |
20 | | imprisonment, or mandatory supervised release for that |
21 | | offense, and upon discharge from incarceration for a |
22 | | misdemeanor offense or upon discharge from parole, probation, |
23 | | conditional discharge, periodic imprisonment, or mandatory |
24 | | supervised release for a felony offense. Visitation shall be |
25 | | denied until the person successfully completes a treatment |
26 | | program approved by the court. Upon completion of treatment, |
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1 | | the court may deny visitation based on the factors listed in |
2 | | subdivision (b)(5) of Section 607 of this Act. |
3 | | (f) No child's grandparent, great-grandparent, sibling, or |
4 | | step-parent, or any person to whom the court is considering |
5 | | granting visitation privileges pursuant to subsection (d) of |
6 | | Section 602.7, may be granted visitation if he or she has been |
7 | | convicted of first degree murder of a parent, grandparent, |
8 | | great-grandparent, or sibling of the child who is the subject |
9 | | of the visitation request. Pursuant to a motion to modify |
10 | | visitation, the court shall revoke visitation rights |
11 | | previously granted to any person who would otherwise be |
12 | | entitled to petition for visitation rights under this Section |
13 | | or granted visitation under subsection (d) of Section 602.7, if |
14 | | the person has been convicted of first degree murder of a |
15 | | parent, grandparent, great-grandparent, or sibling of the |
16 | | child who is the subject of the visitation order. Until an |
17 | | order is entered pursuant to this subsection, no person may |
18 | | visit, with the child present, a person who has been convicted |
19 | | of first degree murder of the parent, grandparent, |
20 | | great-grandparent, or sibling of the child without the consent |
21 | | of the child's parent, other than a parent convicted of first |
22 | | degree murder as set forth herein, or legal guardian. |
23 | | (750 ILCS 5/602.10 new) |
24 | | Sec. 602.10. Parenting plan. |
25 | | (a) Filing of parenting plan. All parents, within 120 days |
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1 | | after service or filing of any petition for allocation of |
2 | | parental responsibilities, must file with the court, either |
3 | | jointly or separately, a proposed parenting plan. The time |
4 | | period for filing a parenting plan may be extended by the court |
5 | | for good cause shown. |
6 | | (b) No parenting plan filed. In the absence of filing of |
7 | | one or more parenting plans, the court must conduct an |
8 | | evidentiary hearing to allocate parental responsibilities.
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9 | | (c) Mediation. The court shall order mediation to assist |
10 | | the parents in formulating or modifying a parenting plan or in |
11 | | implementing a parenting plan unless the court determines that |
12 | | impediments to mediation exist. Costs under this subsection |
13 | | shall be allocated between the parties pursuant to the |
14 | | applicable statute or Supreme Court Rule.
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15 | | (d) Parents' agreement on parenting plan. The parenting |
16 | | plan must be in writing and signed by both parents. The parents |
17 | | must submit the parenting plan to the court for approval within |
18 | | 120 days after service of a petition for allocation of parental |
19 | | responsibilities or the filing of an appearance, except for |
20 | | good cause shown. Notwithstanding the provisions above, the |
21 | | parents may agree upon and submit a parenting plan at any time |
22 | | after the commencement of a proceeding until prior to the entry |
23 | | of a judgment of dissolution of marriage. The agreement is |
24 | | binding upon the court unless it finds, after considering the |
25 | | circumstances of the parties and any other relevant evidence |
26 | | produced by the parties, that the agreement is unconscionable. |
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1 | | If the court does not approve the parenting plan, the court |
2 | | shall make express findings of the reason or reasons for its |
3 | | refusal to approve the plan. The court, on its own motion, may |
4 | | conduct an evidentiary hearing to determine whether the |
5 | | parenting plan is in the child's best interests.
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6 | | (e) Parents cannot agree on parenting plan. When parents |
7 | | fail to submit an agreed parenting plan, each parent must file |
8 | | and submit a written, signed parenting plan to the court within |
9 | | 120 days after the filing of an appearance, except for good |
10 | | cause shown. The court's determination of parenting time should |
11 | | be based on the child's best interests. The filing of the plan |
12 | | may be excused by the court if: |
13 | | (1) the parties have commenced mediation for the |
14 | | purpose of formulating a parenting plan; or |
15 | | (2) the parents have agreed in writing to extend the |
16 | | time for filing a proposed plan and the court has approved |
17 | | such an extension; or |
18 | | (3) the court orders otherwise for good cause shown.
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19 | | (f) Parenting plan contents. At a minimum, a parenting plan |
20 | | must set forth the following: |
21 | | (1) an allocation of significant decision-making |
22 | | responsibilities; |
23 | | (2) provisions for the child's living arrangements and |
24 | | for each parent's parenting time, including either: |
25 | | (A) a schedule that designates in which parent's |
26 | | home the minor child will reside on given days; or |
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1 | | (B) a formula or method for determining such a |
2 | | schedule in sufficient detail to be enforced in a |
3 | | subsequent proceeding; |
4 | | (3) a mediation provision addressing any proposed |
5 | | reallocation of parenting time or regarding the terms of |
6 | | allocation of parental responsibilities, except that this |
7 | | provision is not required if one parent is allocated all |
8 | | significant decision-making responsibilities; |
9 | | (4) each parent's right of access to medical, dental, |
10 | | and psychological records (subject to the Mental Health and |
11 | | Developmental Disabilities Confidentiality Act), child |
12 | | care records, and school and extracurricular records, |
13 | | reports, and schedules, unless expressly denied by a court |
14 | | order or denied under subsection (g) of Section 602.5; |
15 | | (5) a designation of the parent who will be denominated |
16 | | as the parent with the majority of parenting time for |
17 | | purposes of Section 606.10;
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18 | | (6) the child's residential address for school |
19 | | enrollment purposes only; |
20 | | (7) each parent's residence address and phone number, |
21 | | and each parent's place of employment and employment |
22 | | address and phone number; |
23 | | (8) a requirement that a parent changing his or her |
24 | | residence provide at least 60 days prior written notice of |
25 | | the change to any other parent under the parenting plan or |
26 | | allocation judgment, unless such notice is impracticable |
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1 | | or unless otherwise ordered by the court. If such notice is |
2 | | impracticable, written notice shall be given at the |
3 | | earliest date practicable. At a minimum, the notice shall |
4 | | set forth the following: |
5 | | (A) the intended date of the change of residence; |
6 | | and |
7 | | (B) the address of the new residence; |
8 | | (9) provisions requiring each parent to notify the |
9 | | other of emergencies, health care, travel plans, or other |
10 | | significant child-related issues; |
11 | | (10) transportation arrangements between the parents; |
12 | | (11) provisions for communications, including |
13 | | electronic communications, with the child during the other |
14 | | parent's parenting time; |
15 | | (12) provisions for resolving issues arising from a |
16 | | parent's future relocation, if applicable; |
17 | | (13) provisions for future modifications of the |
18 | | parenting plan, if specified events occur; |
19 | | (14) provisions for the exercise of the right of first |
20 | | refusal, if so desired, that are consistent with the best |
21 | | interests of the minor child; provisions in the plan for |
22 | | the exercise of the right of first refusal must include: |
23 | | (i) the length and kind of child-care requirements |
24 | | invoking the right of first refusal; |
25 | | (ii) notification to the other parent and for his |
26 | | or her response; |
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1 | | (iii) transportation requirements; and |
2 | | (iv) any other provision related to the exercise of |
3 | | the right of first refusal necessary to protect and |
4 | | promote the best interests of the minor child; and |
5 | | (15) any other provision that addresses the child's |
6 | | best interests or that will otherwise facilitate |
7 | | cooperation between the parents. |
8 | | The personal information under items (6), (7), and (8) of |
9 | | this subsection is not required if there is evidence of or the |
10 | | parenting plan states that there is a history of domestic |
11 | | violence or abuse, or it is shown that the release of the |
12 | | information is not in the child's or parent's best interests. |
13 | | (g) The court shall conduct a trial or hearing to determine |
14 | | a plan which maximizes the child's relationship and access to |
15 | | both parents and shall ensure that the access and the overall |
16 | | plan are in the best interests of the child. The court shall |
17 | | take the parenting plans into consideration when determining |
18 | | parenting time and responsibilities at trial or hearing. |
19 | | (h) The court may consider, consistent with the best |
20 | | interests of the child as defined in Section 602.7 of this Act, |
21 | | whether to award to one or both of the parties the right of |
22 | | first refusal in accordance with Section 602.3 of this Act. |
23 | | (750 ILCS 5/602.11 new) |
24 | | Sec. 602.11. Access to health care, child care, and school |
25 | | records by parents. |
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1 | | (a) Notwithstanding any other provision of law, access to |
2 | | records and information pertaining to a child including, but |
3 | | not limited to, medical, dental, child care, and school records |
4 | | shall not be denied to a parent for the reason that such parent |
5 | | has not been allocated parental responsibility. A parent who is |
6 | | not allocated parenting time (not denied parental |
7 | | responsibility) is not entitled to access to the child's school |
8 | | or health care records unless a court finds that it is in the |
9 | | child's best interests to provide those records to the parent. |
10 | | (b) Health care professionals and health care providers |
11 | | shall grant access to health care records and information |
12 | | pertaining to a child to both parents, unless the health care |
13 | | professional or health care provider receives a court order or |
14 | | judgment that denies access to a specific individual. Except as |
15 | | may be provided by court order, no parent who is a named |
16 | | respondent in an order of protection issued pursuant to the |
17 | | Illinois Domestic Violence Act of 1986 or the Code of Criminal |
18 | | Procedure of 1963 shall have access to the health care records |
19 | | of a child who is a protected person under the order of |
20 | | protection provided the health care professional or health care |
21 | | provider has received a copy of the order of protection. Access |
22 | | to health care records is denied under this Section for as long |
23 | | as the order of protection remains in effect as specified in |
24 | | the order of protection or as otherwise determined by court |
25 | | order. |
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1 | | (750 ILCS 5/603.5 new) |
2 | | Sec. 603.5. Temporary orders. |
3 | | (a) A court may order a temporary allocation of parental |
4 | | responsibilities in the child's best interests before the entry |
5 | | of a final allocation judgment. Any temporary allocation shall |
6 | | be made in accordance with the standards set forth in Sections |
7 | | 602.5 and 602.7: (i) after a hearing; or (ii) if there is no |
8 | | objection, on the basis of a parenting plan that, at a minimum, |
9 | | complies with subsection (f) of Section 602.10. |
10 | | (b) A temporary order allocating parental responsibilities |
11 | | shall be deemed vacated when the action in which it was granted |
12 | | is dismissed, unless a parent moves to continue the action for |
13 | | allocation of parental responsibilities filed under Section |
14 | | 601.5. |
15 | | (750 ILCS 5/603.10 new) |
16 | | Sec. 603.10. Restriction of parental responsibilities. |
17 | | (a) After a hearing, if the court finds by a preponderance |
18 | | of the evidence that a parent engaged in any conduct that |
19 | | seriously endangered the child's mental, moral, or physical |
20 | | health or that significantly impaired the child's emotional |
21 | | development, the court shall enter orders as necessary to |
22 | | protect the child. Such orders may include, but are not limited |
23 | | to, orders for one or more of the following: |
24 | | (1) a reduction, elimination, or other adjustment of |
25 | | the parent's decision-making responsibilities or parenting |
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1 | | time, or both decision-making responsibilities and |
2 | | parenting time; |
3 | | (2) supervision, including ordering the Department of |
4 | | Children and Family Services to exercise continuing |
5 | | supervision under Section 5 of the Children and Family |
6 | | Services Act; |
7 | | (3) requiring the exchange of the child between the |
8 | | parents through an intermediary or in a protected setting; |
9 | | (4) restraining a parent's communication with or |
10 | | proximity to the other parent or the child; |
11 | | (5) requiring a parent to abstain from possessing or |
12 | | consuming alcohol or non-prescribed drugs while exercising |
13 | | parenting time with the child and within a specified period |
14 | | immediately preceding the exercise of parenting time; |
15 | | (6) restricting the presence of specific persons while |
16 | | a parent is exercising parenting time with the child; |
17 | | (7) requiring a parent to post a bond to secure the |
18 | | return of the child following the parent's exercise of |
19 | | parenting time or to secure other performance required by |
20 | | the court; |
21 | | (8) requiring a parent to complete a treatment program |
22 | | for perpetrators of abuse, for drug or alcohol abuse, or |
23 | | for other behavior that is the basis for restricting |
24 | | parental responsibilities under this Section; and |
25 | | (9) any other constraints or conditions that the court |
26 | | deems necessary to provide for the child's safety or |
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1 | | welfare. |
2 | | (b) The court may modify an order restricting parental |
3 | | responsibilities if, after a hearing, the court finds by a |
4 | | preponderance of the evidence that a modification is in the |
5 | | child's best interests based on (i) a change of circumstances |
6 | | that occurred after the entry of an order restricting parental |
7 | | responsibilities; or (ii) conduct of which the court was |
8 | | previously unaware that seriously endangers the child. In |
9 | | determining whether to modify an order under this subsection, |
10 | | the court must consider factors that include, but need not be |
11 | | limited to, the following: |
12 | | (1) abuse, neglect, or abandonment of the child; |
13 | | (2) abusing or allowing abuse of another person that |
14 | | had an impact upon the child; |
15 | | (3) use of drugs, alcohol, or any other substance in a |
16 | | way that interferes with the parent's ability to perform |
17 | | caretaking functions with respect to the child; and |
18 | | (4) persistent continuing interference with the other |
19 | | parent's access to the child, except for actions taken with |
20 | | a reasonable, good-faith belief that they are necessary to |
21 | | protect the child's safety pending adjudication of the |
22 | | facts underlying that belief, provided that the |
23 | | interfering parent initiates a proceeding to determine |
24 | | those facts as soon as practicable. |
25 | | (c) An order granting parenting time to a parent or |
26 | | visitation to another person may be revoked by the court if |
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1 | | that parent or other person is found to have knowingly used his |
2 | | or her parenting time or visitation to facilitate contact |
3 | | between the child and a parent who has been barred from contact |
4 | | with the child or to have knowingly used his or her parenting |
5 | | time or visitation to facilitate contact with the child that |
6 | | violates any restrictions imposed on a parent's parenting time |
7 | | by a court of competent jurisdiction. Nothing in this |
8 | | subsection limits a court's authority to enforce its orders in |
9 | | any other manner authorized by law. |
10 | | (d) If parenting time of a parent is restricted, an order |
11 | | granting visitation to a non-parent with a child or an order |
12 | | granting parenting time to the other parent shall contain the |
13 | | following language: |
14 | | "If a person granted parenting time or visitation under |
15 | | this order uses that time to facilitate contact between the |
16 | | child and a parent whose parenting time is restricted, or |
17 | | if such a person violates any restrictions placed on |
18 | | parenting time or visitation by the court, the parenting |
19 | | time or visitation granted under this order shall be |
20 | | revoked until further order of court." |
21 | | (e) A parent who, after a hearing, is determined by the |
22 | | court to have been convicted of any offense involving an |
23 | | illegal sex act perpetrated upon a victim less than 18 years of |
24 | | age, including but not limited to an offense under Article 11 |
25 | | of the Criminal Code of 2012, is not entitled to parenting time |
26 | | while incarcerated or while on parole, probation, conditional |
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1 | | discharge, periodic imprisonment, or mandatory supervised |
2 | | release for a felony offense, until the parent complies with |
3 | | such terms and conditions as the court determines are in the |
4 | | child's best interests, taking into account the exact nature of |
5 | | the offense and what, if any, treatment in which the parent |
6 | | successfully participated. |
7 | | (f) A parent may not, while the child is present, visit any |
8 | | person granted visitation or parenting time who has been |
9 | | convicted of first degree murder, unless the court finds, after |
10 | | considering all relevant factors, including those set forth in |
11 | | subsection (b) of Section 602.7, that it would be in the |
12 | | child's best interests to allow the child to be present during |
13 | | such a visit. |
14 | | (750 ILCS 5/604.10 new) |
15 | | Sec. 604.10. Interviews; evaluations; investigation. |
16 | | (a) Court's interview of child. The court may interview the |
17 | | child in chambers to ascertain the child's wishes as to the |
18 | | allocation of parental responsibilities. Counsel shall be |
19 | | present at the interview unless otherwise agreed upon by the |
20 | | parties. The entire interview shall be recorded by a court |
21 | | reporter. The transcript of the interview shall be filed under |
22 | | seal and released only upon order of the court. The cost of the |
23 | | court reporter and transcript shall be paid by the court. |
24 | | (b) Court's professional. The court may seek the advice of |
25 | | any professional, whether or not regularly employed by the |
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1 | | court, to assist the court in determining the child's best |
2 | | interests. The advice to the court shall be in writing and sent |
3 | | by the professional to counsel for the parties and to the |
4 | | court, under seal. The writing may be admitted into evidence |
5 | | without testimony from its author, unless a party objects. A |
6 | | professional consulted by the court shall testify as the |
7 | | court's witness and be subject to cross-examination. The court |
8 | | shall order all costs and fees of the professional to be paid |
9 | | by one or more of the parties, subject to reallocation in |
10 | | accordance with subsection (a) of Section 508. |
11 | | The professional's report must, at a minimum, set forth the |
12 | | following: |
13 | | (1) a description of the procedures employed during the |
14 | | evaluation; |
15 | | (2) a report of the data collected; |
16 | | (3) all test results; |
17 | | (4) any conclusions of the professional relating to the |
18 | | allocation of parental responsibilities under Sections |
19 | | 602.5 and 602.7; |
20 | | (5) any recommendations of the professional concerning |
21 | | the allocation of parental responsibilities or the child's |
22 | | relocation; and |
23 | | (6) an explanation of any limitations in the evaluation |
24 | | or any reservations of the professional regarding the |
25 | | resulting recommendations. |
26 | | The professional shall send his or her report to all |
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1 | | attorneys of record, and to any party not represented, at least |
2 | | 60 days before the hearing on the allocation of parental |
3 | | responsibilities. The court shall examine and consider the |
4 | | professional's report only after it has been admitted into |
5 | | evidence or after the parties have waived their right to |
6 | | cross-examine the professional. |
7 | | (c) Evaluation by a party's retained professional. In a |
8 | | proceeding to allocate parental responsibilities or to |
9 | | relocate a child, upon notice and motion made by a parent or |
10 | | any party to the litigation within a reasonable time before |
11 | | trial, the court shall order an evaluation to assist the court |
12 | | in determining the child's best interests unless the court |
13 | | finds that an evaluation under this Section is untimely or not |
14 | | in the best interests of the child. The evaluation may be in |
15 | | place of or in addition to any advice given to the court by a |
16 | | professional under subsection (b). A motion for an evaluation |
17 | | under this subsection must, at a minimum, identify the proposed |
18 | | evaluator and the evaluator's specialty or discipline. An order |
19 | | for an evaluation under this subsection must set forth the |
20 | | evaluator's name, address, and telephone number and the time, |
21 | | place, conditions, and scope of the evaluation. No person shall |
22 | | be required to travel an unreasonable distance for the |
23 | | evaluation. The party requesting the evaluation shall pay the |
24 | | evaluator's fees and costs unless otherwise ordered by the |
25 | | court. |
26 | | The evaluator's report must, at a minimum, set forth the |
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1 | | following: |
2 | | (1) a description of the procedures employed during the |
3 | | evaluation; |
4 | | (2) a report of the data collected; |
5 | | (3) all test results; |
6 | | (4) any conclusions of the evaluator relating to the |
7 | | allocation of parental responsibilities under Sections |
8 | | 602.5 and 602.7; |
9 | | (5) any recommendations of the evaluator concerning |
10 | | the allocation of parental responsibilities or the child's |
11 | | relocation; and |
12 | | (6) an explanation of any limitations in the evaluation |
13 | | or any reservations of the evaluator regarding the |
14 | | resulting recommendations. |
15 | | A party who retains a professional to conduct an evaluation |
16 | | under this subsection shall cause the evaluator's written |
17 | | report to be sent to the attorneys of record no less than 60 |
18 | | days before the hearing on the allocation of parental |
19 | | responsibilities, unless otherwise ordered by the court; if a |
20 | | party fails to comply with this provision, the court may not |
21 | | admit the evaluator's report into evidence and may not allow |
22 | | the evaluator to testify. |
23 | | The party calling an evaluator to testify at trial shall |
24 | | disclose the evaluator as a controlled expert witness in |
25 | | accordance with the Supreme Court Rules. |
26 | | Any party to the litigation may call the evaluator as a |
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1 | | witness. That party shall pay the evaluator's fees and costs |
2 | | for testifying, unless otherwise ordered by the court. |
3 | | (d) Investigation. Upon notice and a motion by a parent or |
4 | | any party to the litigation, or upon the court's own motion, |
5 | | the court may order an investigation and report to assist the |
6 | | court in allocating parental responsibilities. The
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7 | | investigation may be made by any agency, private entity, or |
8 | | individual deemed appropriate by the court. The agency, private |
9 | | entity, or individual appointed by the court must have |
10 | | expertise in the area of allocation of parental |
11 | | responsibilities. The court shall specify the purpose and scope |
12 | | of the investigation. |
13 | | The investigator's report must, at a minimum, set forth the |
14 | | following: |
15 | | (1) a description of the procedures employed during the |
16 | | investigation; |
17 | | (2) a report of the data collected; |
18 | | (3) all test results; |
19 | | (4) any conclusions of the investigator relating to the |
20 | | allocation of parental responsibilities under Sections |
21 | | 602.5 and 602.7; |
22 | | (5) any recommendations of the investigator concerning |
23 | | the allocation of parental responsibilities or the child's |
24 | | relocation; and |
25 | | (6) an explanation of any limitations in the |
26 | | investigation or any reservations of the investigator |
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1 | | regarding the resulting recommendations. |
2 | | The investigator shall send his or her report to all |
3 | | attorneys of record, and to any party not represented, at least |
4 | | 60 days before the hearing on the allocation of parental |
5 | | responsibilities. The court shall examine and consider the |
6 | | investigator's report only after it has been admitted into |
7 | | evidence or after the parties have waived their right to |
8 | | cross-examine the investigator. |
9 | | The investigator shall make available to all attorneys of |
10 | | record, and to any party not represented, the investigator's |
11 | | file, and the names and addresses of all persons whom the |
12 | | investigator has consulted, except that if such disclosure |
13 | | would risk abuse to the party or any member of the party's |
14 | | immediate family or household or reveal the confidential |
15 | | address of a shelter for domestic violence victims, that |
16 | | address may be omitted from the report. Any party to the |
17 | | proceeding may call the investigator, or any person consulted |
18 | | by the investigator as a court's witness, for |
19 | | cross-examination. No fees shall be paid for any investigation |
20 | | by a governmental agency. The fees incurred by any other |
21 | | investigator shall be allocated in accordance with Section 508. |
22 | | (750 ILCS 5/606.5 new) |
23 | | Sec. 606.5. Hearings. |
24 | | (a) Proceedings to allocate parental responsibilities |
25 | | shall receive priority in being set for hearing. |
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1 | | (b) The court, without a jury, shall determine questions of |
2 | | law and fact. |
3 | | (c) Previous statements made by the child relating to any |
4 | | allegations that the child is an abused or neglected child |
5 | | within the meaning of the Abused and Neglected Child Reporting |
6 | | Act, or an abused or neglected minor within the meaning of the |
7 | | Juvenile Court Act of 1987, shall be admissible in evidence in |
8 | | a hearing concerning allocation of parental responsibilities |
9 | | in accordance with Section 11.1 of the Abused and Neglected |
10 | | Child Reporting Act. No such statement, however, if |
11 | | uncorroborated and not subject to cross-examination, shall be |
12 | | sufficient in itself to support a finding of abuse or neglect.
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13 | | (d) If the court finds that a public hearing may be |
14 | | detrimental to the child's best interests, the court shall |
15 | | exclude the public from the hearing, but the court may admit |
16 | | any person having: |
17 | | (1) a direct and legitimate interest in the case; or |
18 | | (2) a legitimate educational or research interest in |
19 | | the work of the court, but only with the permission of both |
20 | | parties and subject to court approval. |
21 | | (e) The court may make an appropriate order sealing the |
22 | | records of any interview, report, investigation, or testimony.
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23 | | (750 ILCS 5/606.10 new) |
24 | | Sec. 606.10. Designation of custodian for purposes of other |
25 | | statutes. Solely for the purposes of all State and federal |
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1 | | statutes that require a designation or determination of custody |
2 | | or a custodian, a parenting plan shall designate the parent who |
3 | | is allocated the majority of parenting time. This designation |
4 | | shall not affect parents' rights and responsibilities under the |
5 | | parenting plan. For purposes of Section 10-20.12b of the School |
6 | | Code only, the parent with the majority of parenting time is |
7 | | considered to have legal custody. |
8 | | (750 ILCS 5/607.5 new)
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9 | | Sec. 607.5. Abuse of allocated parenting time. |
10 | | (a) The court shall provide an expedited procedure for the |
11 | | enforcement of allocated parenting time. |
12 | | (b) An action for the enforcement of allocated parenting |
13 | | time may be commenced by a parent or a person appointed under |
14 | | Section 506 by filing a petition setting forth: (i) the |
15 | | petitioner's name and residence address or mailing address, |
16 | | except that if the petition states that disclosure of |
17 | | petitioner's address would risk abuse of petitioner or any |
18 | | member of petitioner's family or household or reveal the |
19 | | confidential address of a shelter for domestic violence |
20 | | victims, that address may be omitted from the petition; (ii) |
21 | | the respondent's name and place of residence, place of |
22 | | employment, or mailing address; (iii) the terms of the |
23 | | parenting plan or allocation judgment then in effect; (iv) the |
24 | | nature of the violation of the allocation of parenting time, |
25 | | giving dates and other relevant information; and (v) that a |
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1 | | reasonable attempt was made to resolve the dispute. |
2 | | (c) If the court finds by a preponderance of the evidence |
3 | | that a parent has not complied with allocated parenting time |
4 | | according to an approved parenting plan or a court order, the |
5 | | court, in the child's best interests, shall issue an order that |
6 | | may include one or more of the following: |
7 | | (1) an imposition of additional terms and conditions |
8 | | consistent with the court's previous allocation of |
9 | | parenting time or other order; |
10 | | (2) a requirement that either or both of the parties |
11 | | attend a parental education program at the expense of the |
12 | | non-complying parent; |
13 | | (3) upon consideration of all relevant factors, |
14 | | particularly a history or possibility of domestic |
15 | | violence, a requirement that the parties participate in |
16 | | family or individual counseling, the expense of which shall |
17 | | be allocated by the court; |
18 | | (4) a requirement that the non-complying parent post a |
19 | | cash bond or other security to ensure future compliance, |
20 | | including a provision that the bond or other security may |
21 | | be forfeited to the other parent for payment of expenses on |
22 | | behalf of the child as the court shall direct; |
23 | | (5) a requirement that makeup parenting time be |
24 | | provided for the aggrieved parent or child under the |
25 | | following conditions: |
26 | | (A) that the parenting time is of the same type and |
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1 | | duration as the parenting time that was denied, |
2 | | including but not limited to parenting time during |
3 | | weekends, on holidays, and on weekdays and during times |
4 | | when the child is not in school; |
5 | | (B) that the parenting time is made up within 6 |
6 | | months after the noncompliance occurs, unless the |
7 | | period of time or holiday cannot be made up within 6 |
8 | | months, in which case the parenting time shall be made |
9 | | up within one year after the noncompliance occurs; |
10 | | (6) a finding that the non-complying parent is in |
11 | | contempt of court; |
12 | | (7) an imposition on the non-complying parent of an |
13 | | appropriate civil fine per incident of denied parenting |
14 | | time; |
15 | | (8) a requirement that the non-complying parent |
16 | | reimburse the other parent for all reasonable expenses |
17 | | incurred as a result of the violation of the parenting plan |
18 | | or court order; and |
19 | | (9) any other provision that may promote the child's |
20 | | best interests. |
21 | | (d) In addition to any other order entered under subsection |
22 | | (c), except for good cause shown, the court shall order a |
23 | | parent who has failed to provide allocated parenting time or to |
24 | | exercise allocated parenting time to pay the aggrieved party |
25 | | his or her reasonable attorney's fees, court costs, and |
26 | | expenses associated with an action brought under this Section. |
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1 | | If the court finds that the respondent in an action brought |
2 | | under this Section has not violated the allocated parenting |
3 | | time, the court may order the petitioner to pay the |
4 | | respondent's reasonable attorney's fees, court costs, and |
5 | | expenses incurred in the action. |
6 | | (e) Nothing in this Section precludes a party from |
7 | | maintaining any other action as provided by law. |
8 | | (f) When the court issues an order holding a party in |
9 | | contempt for violation of a parenting time order and finds that |
10 | | the party engaged in parenting time abuse, the court may order |
11 | | one or more of the following: |
12 | | (1) Suspension of a party's Illinois driving |
13 | | privileges pursuant to Section 7-703 of the Illinois |
14 | | Vehicle Code until the court determines that the party is |
15 | | in compliance with the parenting time order. The court may |
16 | | also order that a party be issued a family financial |
17 | | responsibility driving permit that would allow limited |
18 | | driving privileges for employment, for medical purposes, |
19 | | and to transport a child to or from scheduled parenting |
20 | | time in order to comply with a parenting time order in |
21 | | accordance with subsection (a-1) of Section 7-702.1 of the |
22 | | Illinois Vehicle Code. |
23 | | (2) Placement of a party on probation with such |
24 | | conditions of probation as the court deems advisable. |
25 | | (3) Sentencing of a party to periodic imprisonment for |
26 | | a period not to exceed 6 months; provided, that the court |
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1 | | may permit the party to be released for periods of time |
2 | | during the day or night to: |
3 | | (A) work; or |
4 | | (B) conduct a business or other self-employed |
5 | | occupation. |
6 | | (4) Find that a party in engaging in parenting time |
7 | | abuse is guilty of a petty offense and should be fined an |
8 | | amount of no more than $500 for each finding of parenting |
9 | | time abuse. |
10 | | (g) When the court issues an order holding a party in |
11 | | contempt of court for violation of a parenting order, the clerk |
12 | | shall transmit a copy of the contempt order to the sheriff of |
13 | | the county. The sheriff shall furnish a copy of each contempt |
14 | | order to the Department of State Police on a daily basis in the |
15 | | form and manner required by the Department. The Department |
16 | | shall maintain a complete record and index of the contempt |
17 | | orders and make this data available to all local law |
18 | | enforcement agencies. |
19 | | (h) Nothing contained in this Section shall be construed to |
20 | | limit the court's contempt power. |
21 | | (750 ILCS 5/609.2 new) |
22 | | Sec. 609.2. Parent's relocation.
|
23 | | (a) A parent's relocation constitutes a substantial change |
24 | | in circumstances for purposes of Section 610.5. |
25 | | (b) A parent who has been allocated a majority of parenting |
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1 | | time or either parent who has been allocated equal parenting |
2 | | time may seek to relocate with a child. |
3 | | (c) A parent intending a relocation, as that term is |
4 | | defined in paragraph (1), (2), or (3) of subsection (g) of |
5 | | Section 600 of this Act, must provide written notice of the |
6 | | relocation to the other parent under the parenting plan or |
7 | | allocation judgment. A copy of the notice required under this |
8 | | Section shall be filed with the clerk of the circuit court. The |
9 | | court may waive or seal some or all of the information required |
10 | | in the notice if there is a history of domestic violence. |
11 | | (d) The notice must provide at least 60 days' written |
12 | | notice before the relocation unless such notice is |
13 | | impracticable (in which case written notice shall be given at |
14 | | the earliest date practicable) or unless otherwise ordered by |
15 | | the court. At a minimum, the notice must set forth the |
16 | | following: |
17 | | (1) the intended date of the parent's relocation; |
18 | | (2) the address of the parent's intended new residence, |
19 | | if known; and |
20 | | (3) the length of time the relocation will last, if the |
21 | | relocation is not for an indefinite or permanent period. |
22 | | The court may consider a parent's failure to comply with |
23 | | the notice requirements of this Section without good cause (i) |
24 | | as a factor in determining whether the parent's relocation is |
25 | | in good faith; and (ii) as a basis for awarding reasonable |
26 | | attorney's fees and costs resulting from the parent's failure |
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1 | | to comply with these provisions. |
2 | | (e) If the non-relocating parent signs the notice that was |
3 | | provided pursuant to subsection (c) and the relocating parent |
4 | | files the notice with the court, relocation shall be allowed |
5 | | without any further court action. The court shall modify the |
6 | | parenting plan or allocation judgment to accommodate a parent's |
7 | | relocation as agreed by the parents, as long as the agreed |
8 | | modification is in the child's best interests. |
9 | | (f) If the non-relocating parent objects to the relocation, |
10 | | fails to sign the notice provided under subsection (c), or the |
11 | | parents cannot agree on modification of the parenting plan or |
12 | | allocation judgment, the parent seeking relocation must file a |
13 | | petition seeking permission to relocate. |
14 | | (g) The court shall modify the parenting plan or allocation |
15 | | judgment in accordance with the child's best interests. The |
16 | | court shall consider the following factors: |
17 | | (1) the circumstances and reasons for the intended |
18 | | relocation; |
19 | | (2) the reasons, if any, why a parent is objecting to |
20 | | the
intended relocation; |
21 | | (3) the history and quality of each parent's |
22 | | relationship with the child and specifically whether a |
23 | | parent has substantially failed or refused to exercise the |
24 | | parental responsibilities allocated to him or her under the |
25 | | parenting plan or allocation judgment; |
26 | | (4) the educational opportunities for the child at the |
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1 | | existing location and at the proposed new location; |
2 | | (5) the presence or absence of extended family at the |
3 | | existing location and at the proposed new location; |
4 | | (6) the anticipated impact of the relocation on the |
5 | | child; |
6 | | (7) whether the court will be able to fashion a |
7 | | reasonable allocation of parental responsibilities between |
8 | | all parents if the relocation occurs; |
9 | | (8) the wishes of the child, taking into account the |
10 | | child's maturity and ability to express reasoned and |
11 | | independent preferences as to relocation; |
12 | | (9) possible arrangements for the exercise of parental |
13 | | responsibilities appropriate to the parents' resources and |
14 | | circumstances and the developmental level of the child; |
15 | | (10) minimization of the impairment to a parent-child |
16 | | relationship caused by a parent's relocation; and |
17 | | (11) any other relevant factors bearing on the child's |
18 | | best interests. |
19 | | (h) If a parent moves with the child 25 miles or less from |
20 | | the child's current primary residence to a new primary |
21 | | residence outside Illinois, Illinois continues to be the home |
22 | | state of the child under subsection (c) of Section 202 of the |
23 | | Uniform Child-Custody Jurisdiction and Enforcement Act. Any |
24 | | subsequent move from the new primary residence outside Illinois |
25 | | greater than 25 miles from the child's original primary |
26 | | residence in Illinois must be in compliance with the provisions |
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1 | | of this Section. |
2 | | (750 ILCS 5/610.5 new) |
3 | | Sec. 610.5. Modification. |
4 | | (a) Unless by stipulation of the parties or except as |
5 | | provided in subsection (b) of this Section or Section 603.10 of |
6 | | this Act, no motion to modify an order allocating parental |
7 | | responsibilities may be made earlier than 2 years after its |
8 | | date, unless the court permits it to be made on the basis of |
9 | | affidavits that there is reason to believe the child's present |
10 | | environment may endanger seriously his or her mental, moral, or |
11 | | physical health or significantly impair the child's emotional |
12 | | development. |
13 | | (b) A motion to modify an order allocating parental |
14 | | responsibilities may be made at any time by a party who has |
15 | | been informed of the existence of facts requiring notice to be |
16 | | given under Section 609.5 of this Act. |
17 | | (c) Except in a case concerning the modification of any |
18 | | restriction of parental responsibilities under Section 603.10,
|
19 | | the court shall modify a parenting plan or allocation judgment |
20 | | when necessary to serve the child's best interests if the court |
21 | | finds, by a preponderance of the evidence, that on the basis of |
22 | | facts that have arisen since the entry of the existing |
23 | | parenting plan or allocation judgment or were not anticipated |
24 | | therein, a substantial change has occurred in the circumstances |
25 | | of the child or of either parent and that a modification is |
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1 | | necessary to serve the child's best interests. |
2 | | (d) The court shall modify a parenting plan or allocation |
3 | | judgment in accordance with a parental agreement, unless it |
4 | | finds that the modification is not in the child's best |
5 | | interests. |
6 | | (e) The court may modify a parenting plan or allocation |
7 | | judgment without a showing of changed circumstances if (i) the |
8 | | modification is in the child's best interests; and (ii) any of |
9 | | the following are proven as to the modification: |
10 | | (1) the modification reflects the actual arrangement |
11 | | under which the child has been receiving care, without |
12 | | parental objection, for the 6 months preceding the filing |
13 | | of the petition for modification, provided that the |
14 | | arrangement is not the result of a parent's acquiescence |
15 | | resulting from circumstances that negated the parent's |
16 | | ability to give meaningful consent; |
17 | | (2) the modification constitutes a minor modification |
18 | | in the parenting plan or allocation judgment; |
19 | | (3) the modification is necessary to modify an agreed |
20 | | parenting plan or allocation judgment that the court would |
21 | | not have ordered or approved under Section 602.5 or 602.7 |
22 | | had the court been aware of the circumstances at the time |
23 | | of the order or approval; or |
24 | | (4) the parties agree to the modification. |
25 | | (f) Attorney's fees and costs shall be assessed against a |
26 | | party seeking
modification if the court finds that the |
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1 | | modification action is vexatious or constitutes harassment. If |
2 | | the court finds that a parent has repeatedly filed frivolous |
3 | | motions for modification, the court may bar the parent from |
4 | | filing a motion for modification for a period of time.
|
5 | | (750 ILCS 5/801) (from Ch. 40, par. 801)
|
6 | | Sec. 801. Application. ) |
7 | | (a) This Act applies to all proceedings commenced on or
|
8 | | after its effective date.
|
9 | | (b) This Act applies to all pending actions and proceedings |
10 | | commenced prior to its
effective date with respect to issues on |
11 | | which a judgment has not been entered.
Evidence adduced after |
12 | | the effective date of this Act shall be in compliance
with this |
13 | | Act.
|
14 | | (c) This Act applies to all proceedings commenced after its |
15 | | effective
date for the modification
of a judgment or order |
16 | | entered prior to the effective date of this Act.
Alimony in |
17 | | gross or settlements in lieu of alimony provided for in |
18 | | judgments
entered prior to October 1, 1977 shall not be |
19 | | modifiable or terminable as
maintenance thereafter.
|
20 | | (d) In any action or proceeding in which an appeal was |
21 | | pending or a new trial was
ordered prior to the effective date |
22 | | of this Act, the law in effect at the
time of the order
|
23 | | sustaining the appeal or the new trial governs the appeal, the |
24 | | new trial,
and any subsequent trial or appeal. |
25 | | (e) On and after the effective date of this amendatory Act |
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1 | | of the 99th General Assembly, the term "parenting time" is used |
2 | | in place of "visitation" with respect to time during which a |
3 | | parent is responsible for exercising caretaking functions and |
4 | | non-significant decision-making responsibilities concerning |
5 | | the child. On and after the effective date of this amendatory |
6 | | Act of the 99th General Assembly, the term "parental |
7 | | responsibility" is used in place of "custody" and related terms |
8 | | such as "custodial" and "custodian". It is not the intent of |
9 | | the General Assembly to modify or change the rights arising |
10 | | under any order entered concerning custody or visitation prior |
11 | | to the effective date of this amendatory Act of the 99th |
12 | | General Assembly.
|
13 | | (Source: P.A. 82-566.)
|
14 | | (750 ILCS 5/406 rep.)
|
15 | | (750 ILCS 5/407 rep.)
|
16 | | (750 ILCS 5/408 rep.)
|
17 | | (750 ILCS 5/412 rep.)
|
18 | | (750 ILCS 5/514 rep.)
|
19 | | (750 ILCS 5/515 rep.)
|
20 | | (750 ILCS 5/516 rep.)
|
21 | | (750 ILCS 5/517 rep.)
|
22 | | (750 ILCS 5/601 rep.)
|
23 | | (750 ILCS 5/601.5 rep.)
|
24 | | (750 ILCS 5/602 rep.)
|
25 | | (750 ILCS 5/602.1 rep.)
|
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1 | | (750 ILCS 5/603 rep.)
|
2 | | (750 ILCS 5/604 rep.)
|
3 | | (750 ILCS 5/604.5 rep.)
|
4 | | (750 ILCS 5/605 rep.)
|
5 | | (750 ILCS 5/606 rep.)
|
6 | | (750 ILCS 5/607 rep.)
|
7 | | (750 ILCS 5/607.1 rep.)
|
8 | | (750 ILCS 5/608 rep.)
|
9 | | (750 ILCS 5/609 rep.)
|
10 | | (750 ILCS 5/610 rep.)
|
11 | | (750 ILCS 5/611 rep.)
|
12 | | (750 ILCS 5/701 rep.)
|
13 | | (750 ILCS 5/703 rep.)
|
14 | | Section 5-20. The Illinois Marriage and Dissolution of |
15 | | Marriage Act is amended by repealing Sections 406, 407, 408, |
16 | | 412, 514, 515, 516, 517, 601, 601.5, 602, 602.1, 603, 604, |
17 | | 604.5, 605, 606, 607, 607.1, 608, 609, 610, 611, 701, and 703. |
18 | | Section 5-23. The Uniform Child-Custody Jurisdiction and |
19 | | Enforcement Act is amended by changing Section 202 as follows:
|
20 | | (750 ILCS 36/202)
|
21 | | Sec. 202. Exclusive, Continuing Jurisdiction.
|
22 | | (a) Except as otherwise provided in Section 204, a court of |
23 | | this State which
has made a child-custody determination |
24 | | consistent with Section 201 or 203 has
exclusive, continuing |
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1 | | jurisdiction over the determination until:
|
2 | | (1) a court of this State determines that neither the |
3 | | child, the child's
parents, and any person acting as a |
4 | | parent do not have a significant connection
with
this State |
5 | | and that substantial evidence is no longer available in |
6 | | this State
concerning the child's care, protection, |
7 | | training, and personal relationships;
or
|
8 | | (2) a court of this State or a court of another state |
9 | | determines that the
child, the child's parents, and any |
10 | | person acting as a parent do not presently
reside
in this |
11 | | State.
|
12 | | (b) A court of this State which has made a child-custody |
13 | | determination and
does not have exclusive, continuing |
14 | | jurisdiction under this Section may modify
that
determination |
15 | | only if it has jurisdiction to make an initial determination
|
16 | | under Section 201.
|
17 | | (c) A court of this State shall continue to exercise |
18 | | exclusive jurisdiction and be considered the home state of a |
19 | | child if a parent moves with a child under subsection (h) of |
20 | | Section 609.2 of the Illinois Marriage and Dissolution of |
21 | | Marriage Act. |
22 | | (Source: P.A. 93-108, eff. 1-1-04.)
|
23 | | Section 5-25. The Illinois Domestic Violence Act of 1986 is |
24 | | amended by changing Sections 214 and 223 as follows:
|
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1 | | (750 ILCS 60/214) (from Ch. 40, par. 2312-14)
|
2 | | Sec. 214. Order of protection; remedies.
|
3 | | (a) Issuance of order. If the court finds that petitioner |
4 | | has been
abused by a family or household member or that |
5 | | petitioner is a high-risk
adult who has been abused, neglected, |
6 | | or exploited, as defined in this Act,
an order of protection |
7 | | prohibiting the abuse, neglect, or exploitation
shall issue; |
8 | | provided that petitioner must also satisfy the requirements of
|
9 | | one of the following Sections, as appropriate: Section 217 on |
10 | | emergency
orders, Section 218 on interim orders, or Section 219 |
11 | | on plenary orders.
Petitioner shall not be denied an order of |
12 | | protection because petitioner or
respondent is a minor. The |
13 | | court, when determining whether or not to issue
an order of |
14 | | protection, shall not require physical manifestations of abuse
|
15 | | on the person of the victim. Modification and extension of |
16 | | prior
orders of protection shall be in accordance with this |
17 | | Act.
|
18 | | (b) Remedies and standards. The remedies to be included in |
19 | | an order of
protection shall be determined in accordance with |
20 | | this Section and one of
the following Sections, as appropriate: |
21 | | Section 217 on emergency orders,
Section 218 on interim orders, |
22 | | and Section 219 on plenary orders. The
remedies listed in this |
23 | | subsection shall be in addition to other civil or
criminal |
24 | | remedies available to petitioner.
|
25 | | (1) Prohibition of abuse, neglect, or exploitation. |
26 | | Prohibit
respondent's harassment, interference with |
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1 | | personal liberty, intimidation
of a dependent, physical |
2 | | abuse, or willful deprivation, neglect or
exploitation, as |
3 | | defined in this Act, or stalking of the petitioner, as |
4 | | defined
in Section 12-7.3 of the Criminal Code of 2012, if |
5 | | such abuse, neglect,
exploitation, or stalking has |
6 | | occurred or otherwise appears likely to occur if
not |
7 | | prohibited.
|
8 | | (2) Grant of exclusive possession of residence. |
9 | | Prohibit respondent from
entering or remaining in any |
10 | | residence, household, or premises of the petitioner,
|
11 | | including one owned or leased by respondent, if petitioner |
12 | | has a right to
occupancy thereof. The grant of exclusive |
13 | | possession of the residence, household, or premises shall |
14 | | not
affect title to real property, nor shall the court be |
15 | | limited by the standard
set forth in Section 701 of the |
16 | | Illinois Marriage and Dissolution of Marriage
Act.
|
17 | | (A) Right to occupancy. A party has a right to |
18 | | occupancy of a
residence or household if it is solely |
19 | | or jointly owned or leased by that
party, that party's |
20 | | spouse, a person with a legal duty to support that |
21 | | party or
a minor child in that party's care, or by any |
22 | | person or entity other than the
opposing party that |
23 | | authorizes that party's occupancy (e.g., a domestic
|
24 | | violence shelter). Standards set forth in subparagraph |
25 | | (B) shall not preclude
equitable relief.
|
26 | | (B) Presumption of hardships. If petitioner and |
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1 | | respondent
each has the right to occupancy of a |
2 | | residence or household, the court
shall balance (i) the |
3 | | hardships to respondent and any minor child or
|
4 | | dependent adult in respondent's care resulting from |
5 | | entry of this remedy with
(ii) the hardships to |
6 | | petitioner and any minor child or dependent adult in
|
7 | | petitioner's care resulting from continued exposure to |
8 | | the risk of abuse
(should petitioner remain at the |
9 | | residence or household) or from loss of
possession of |
10 | | the residence or household (should petitioner leave to |
11 | | avoid the
risk of abuse). When determining the balance |
12 | | of hardships, the court shall
also take into account |
13 | | the accessibility of the residence or household.
|
14 | | Hardships need not be balanced if respondent does not |
15 | | have a right to
occupancy.
|
16 | | The balance of hardships is presumed to favor |
17 | | possession by
petitioner unless the presumption is |
18 | | rebutted by a preponderance of the
evidence, showing |
19 | | that the hardships to respondent substantially |
20 | | outweigh
the hardships to petitioner and any minor |
21 | | child or dependent adult in
petitioner's care. The |
22 | | court, on the request of petitioner or on its own
|
23 | | motion, may order respondent to provide suitable, |
24 | | accessible, alternate housing
for petitioner instead |
25 | | of excluding respondent from a mutual residence or
|
26 | | household.
|
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1 | | (3) Stay away order and additional prohibitions.
Order |
2 | | respondent to stay away from petitioner or any other person
|
3 | | protected by the order of protection, or prohibit |
4 | | respondent from entering
or remaining present at |
5 | | petitioner's school, place of employment, or other
|
6 | | specified places at times when petitioner is present, or |
7 | | both, if
reasonable, given the balance of hardships. |
8 | | Hardships need not be balanced for
the court to enter a |
9 | | stay away order or prohibit entry if respondent has no
|
10 | | right to enter the premises.
|
11 | | (A) If an order of protection grants petitioner |
12 | | exclusive possession
of the residence, or prohibits |
13 | | respondent from entering the residence,
or orders |
14 | | respondent to stay away from petitioner or other
|
15 | | protected persons, then the court may allow respondent |
16 | | access to the
residence to remove items of clothing and |
17 | | personal adornment
used exclusively by respondent, |
18 | | medications, and other items as the court
directs. The |
19 | | right to access shall be exercised on only one occasion |
20 | | as the
court directs and in the presence of an |
21 | | agreed-upon adult third party or law
enforcement |
22 | | officer.
|
23 | | (B) When the petitioner and the respondent attend |
24 | | the same public, private, or non-public elementary, |
25 | | middle, or high school, the court when issuing an order |
26 | | of protection and providing relief shall consider the |
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1 | | severity of the act, any continuing physical danger or |
2 | | emotional distress to the petitioner, the educational |
3 | | rights guaranteed to the petitioner and respondent |
4 | | under federal and State law, the availability of a |
5 | | transfer of the respondent to another school, a change |
6 | | of placement or a change of program of the respondent, |
7 | | the expense, difficulty, and educational disruption |
8 | | that would be caused by a transfer of the respondent to |
9 | | another school, and any other relevant facts of the |
10 | | case. The court may order that the respondent not |
11 | | attend the public, private, or non-public elementary, |
12 | | middle, or high school attended by the petitioner, |
13 | | order that the respondent accept a change of placement |
14 | | or change of program, as determined by the school |
15 | | district or private or non-public school, or place |
16 | | restrictions on the respondent's movements within the |
17 | | school attended by the petitioner.
The respondent |
18 | | bears the burden of proving by a preponderance of the |
19 | | evidence that a transfer, change of placement, or |
20 | | change of program of the respondent is not available. |
21 | | The respondent also bears the burden of production with |
22 | | respect to the expense, difficulty, and educational |
23 | | disruption that would be caused by a transfer of the |
24 | | respondent to another school. A transfer, change of |
25 | | placement, or change of program is not unavailable to |
26 | | the respondent solely on the ground that the respondent |
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1 | | does not agree with the school district's or private or |
2 | | non-public school's transfer, change of placement, or |
3 | | change of program or solely on the ground that the |
4 | | respondent fails or refuses to consent or otherwise |
5 | | does not take an action required to effectuate a |
6 | | transfer, change of placement, or change of program.
|
7 | | When a court orders a respondent to stay away from the |
8 | | public, private, or non-public school attended by the |
9 | | petitioner and the respondent requests a transfer to |
10 | | another attendance center within the respondent's |
11 | | school district or private or non-public school, the |
12 | | school district or private or non-public school shall |
13 | | have sole discretion to determine the attendance |
14 | | center to which the respondent is transferred.
In the |
15 | | event the court order results in a transfer of the |
16 | | minor respondent to another attendance center, a |
17 | | change in the respondent's placement, or a change of |
18 | | the respondent's program, the parents, guardian, or |
19 | | legal custodian of the respondent is responsible for |
20 | | transportation and other costs associated with the |
21 | | transfer or change. |
22 | | (C) The court may order the parents, guardian, or |
23 | | legal custodian of a minor respondent to take certain |
24 | | actions or to refrain from taking certain actions to |
25 | | ensure that the respondent complies with the order. In |
26 | | the event the court orders a transfer of the respondent |
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1 | | to another school, the parents, guardian, or legal |
2 | | custodian of the respondent is responsible for |
3 | | transportation and other costs associated with the |
4 | | change of school by the respondent.
|
5 | | (4) Counseling. Require or recommend the respondent to |
6 | | undergo
counseling for a specified duration with a social |
7 | | worker, psychologist,
clinical psychologist, psychiatrist, |
8 | | family service agency, alcohol or
substance abuse program, |
9 | | mental health center guidance counselor, agency
providing |
10 | | services to elders, program designed for domestic violence
|
11 | | abusers or any other guidance service the court deems |
12 | | appropriate. The Court may order the respondent in any |
13 | | intimate partner relationship to report to an Illinois |
14 | | Department of Human Services protocol approved partner |
15 | | abuse intervention program for an assessment and to follow |
16 | | all recommended treatment.
|
17 | | (5) Physical care and possession of the minor child. In |
18 | | order to protect
the minor child from abuse, neglect, or |
19 | | unwarranted separation from the person
who has been the |
20 | | minor child's primary caretaker, or to otherwise protect |
21 | | the
well-being of the minor child, the court may do either |
22 | | or both of the
following: (i) grant petitioner physical |
23 | | care or possession of the minor child,
or both, or (ii) |
24 | | order respondent to return a minor child to, or not remove |
25 | | a
minor child from, the physical care of a parent or person |
26 | | in loco parentis.
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1 | | If a court finds, after a hearing, that respondent has |
2 | | committed abuse
(as defined in Section 103) of a minor |
3 | | child, there shall be a
rebuttable presumption that |
4 | | awarding physical care to respondent would not
be in the |
5 | | minor child's best interest.
|
6 | | (6) Temporary allocation of parental responsibilities: |
7 | | significant decision-making legal custody . Award temporary |
8 | | decision-making responsibility legal custody to petitioner
|
9 | | in accordance with this Section, the Illinois Marriage and |
10 | | Dissolution of
Marriage Act, the Illinois Parentage Act of |
11 | | 1984, and this State's Uniform
Child-Custody Jurisdiction |
12 | | and Enforcement Act.
|
13 | | If a court finds, after a hearing, that respondent has |
14 | | committed abuse (as
defined in Section 103) of a minor |
15 | | child, there shall be a rebuttable
presumption that |
16 | | awarding temporary significant decision-making |
17 | | responsibility legal custody to respondent would not be in
|
18 | | the child's best interest.
|
19 | | (7) Parenting time Visitation . Determine the parenting |
20 | | time visitation rights , if any, of respondent in
any case |
21 | | in which the court awards physical care or allocates |
22 | | temporary significant decision-making responsibility legal |
23 | | custody of
a minor child to petitioner. The court shall |
24 | | restrict or deny respondent's parenting time
visitation |
25 | | with a minor child if the court finds that respondent has |
26 | | done or is
likely to do any of the following: (i) abuse or |
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1 | | endanger the minor child during parenting time
visitation ; |
2 | | (ii) use the parenting time visitation as an opportunity to |
3 | | abuse or harass
petitioner or petitioner's family or |
4 | | household members; (iii) improperly
conceal or detain the |
5 | | minor child; or (iv) otherwise act in a manner that is
not |
6 | | in the best interests of the minor child. The court shall |
7 | | not be limited
by the standards set forth in Section 603.10 |
8 | | 607.1 of the Illinois Marriage and
Dissolution of Marriage |
9 | | Act. If the court grants parenting time visitation , the |
10 | | order shall
specify dates and times for the parenting time |
11 | | visitation to take place or other specific
parameters or |
12 | | conditions that are appropriate. No order for parenting |
13 | | time visitation shall
refer merely to the term "reasonable |
14 | | parenting time visitation ".
|
15 | | Petitioner may deny respondent access to the minor |
16 | | child if, when
respondent arrives for parenting time |
17 | | visitation , respondent is under the influence of drugs
or |
18 | | alcohol and constitutes a threat to the safety and |
19 | | well-being of
petitioner or petitioner's minor children or |
20 | | is behaving in a violent or
abusive manner.
|
21 | | If necessary to protect any member of petitioner's |
22 | | family or
household from future abuse, respondent shall be |
23 | | prohibited from coming to
petitioner's residence to meet |
24 | | the minor child for parenting time visitation , and the
|
25 | | parties shall submit to the court their recommendations for |
26 | | reasonable
alternative arrangements for parenting time |
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1 | | visitation . A person may be approved to
supervise parenting |
2 | | time visitation only after filing an affidavit accepting
|
3 | | that responsibility and acknowledging accountability to |
4 | | the court.
|
5 | | (8) Removal or concealment of minor child. Prohibit |
6 | | respondent from
removing a minor child from the State or |
7 | | concealing the child within the State.
|
8 | | (9) Order to appear. Order the respondent to appear in |
9 | | court, alone
or with a minor child, to prevent abuse, |
10 | | neglect, removal or concealment of
the child, to return the |
11 | | child to the custody or care of the petitioner or
to permit |
12 | | any court-ordered interview or examination of the child or |
13 | | the
respondent.
|
14 | | (10) Possession of personal property. Grant petitioner |
15 | | exclusive
possession of personal property and, if |
16 | | respondent has possession or
control, direct respondent to |
17 | | promptly make it available to petitioner, if:
|
18 | | (i) petitioner, but not respondent, owns the |
19 | | property; or
|
20 | | (ii) the parties own the property jointly; sharing |
21 | | it would risk
abuse of petitioner by respondent or is |
22 | | impracticable; and the balance of
hardships favors |
23 | | temporary possession by petitioner.
|
24 | | If petitioner's sole claim to ownership of the property |
25 | | is that it is
marital property, the court may award |
26 | | petitioner temporary possession
thereof under the |
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1 | | standards of subparagraph (ii) of this paragraph only if
a |
2 | | proper proceeding has been filed under the Illinois |
3 | | Marriage and
Dissolution of Marriage Act, as now or |
4 | | hereafter amended.
|
5 | | No order under this provision shall affect title to |
6 | | property.
|
7 | | (11) Protection of property. Forbid the respondent |
8 | | from taking,
transferring, encumbering, concealing, |
9 | | damaging or otherwise disposing of
any real or personal |
10 | | property, except as explicitly authorized by the
court, if:
|
11 | | (i) petitioner, but not respondent, owns the |
12 | | property; or
|
13 | | (ii) the parties own the property jointly,
and the |
14 | | balance of hardships favors granting this remedy.
|
15 | | If petitioner's sole claim to ownership of the property |
16 | | is that it is
marital property, the court may grant |
17 | | petitioner relief under subparagraph
(ii) of this |
18 | | paragraph only if a proper proceeding has been filed under |
19 | | the
Illinois Marriage and Dissolution of Marriage Act, as |
20 | | now or hereafter amended.
|
21 | | The court may further prohibit respondent from |
22 | | improperly using the
financial or other resources of an |
23 | | aged member of the family or household
for the profit or |
24 | | advantage of respondent or of any other person.
|
25 | | (11.5) Protection of animals. Grant the petitioner the |
26 | | exclusive care, custody, or control of any animal owned, |
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1 | | possessed, leased, kept, or held by either the petitioner |
2 | | or the respondent or a minor child residing in the |
3 | | residence or household of either the petitioner or the |
4 | | respondent and order the respondent to stay away from the |
5 | | animal and forbid the respondent from taking, |
6 | | transferring, encumbering, concealing, harming, or |
7 | | otherwise disposing of the animal.
|
8 | | (12) Order for payment of support. Order respondent to |
9 | | pay temporary
support for the petitioner or any child in |
10 | | the petitioner's care or over whom the petitioner has been |
11 | | allocated parental responsibility
custody , when the |
12 | | respondent has a legal obligation to support that person,
|
13 | | in accordance with the Illinois Marriage and Dissolution
of |
14 | | Marriage Act, which shall govern, among other matters, the |
15 | | amount of
support, payment through the clerk and |
16 | | withholding of income to secure
payment. An order for child |
17 | | support may be granted to a petitioner with
lawful physical |
18 | | care or custody of a child, or an order or agreement for
|
19 | | physical care of a child or custody , prior to entry of an |
20 | | order allocating significant decision-making |
21 | | responsibility for legal custody .
Such a support order |
22 | | shall expire upon entry of a valid order allocating |
23 | | parental responsibility differently and vacating the |
24 | | petitioner's significant decision-making authority |
25 | | granting
legal custody to another , unless otherwise |
26 | | provided in the custody order.
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1 | | (13) Order for payment of losses. Order respondent to |
2 | | pay petitioner for
losses suffered as a direct result of |
3 | | the abuse, neglect, or exploitation.
Such losses shall |
4 | | include, but not be limited to, medical expenses, lost
|
5 | | earnings or other support, repair or replacement of |
6 | | property damaged or taken,
reasonable attorney's fees, |
7 | | court costs and moving or other travel expenses,
including |
8 | | additional reasonable expenses for temporary shelter and |
9 | | restaurant
meals.
|
10 | | (i) Losses affecting family needs. If a party is |
11 | | entitled to seek
maintenance, child support or |
12 | | property distribution from the other party
under the |
13 | | Illinois Marriage and Dissolution of Marriage Act, as |
14 | | now or
hereafter amended, the court may order |
15 | | respondent to reimburse petitioner's
actual losses, to |
16 | | the extent that such reimbursement would be |
17 | | "appropriate
temporary relief", as authorized by |
18 | | subsection (a)(3) of Section 501 of
that Act.
|
19 | | (ii) Recovery of expenses. In the case of an |
20 | | improper concealment
or removal of a minor child, the |
21 | | court may order respondent to pay the
reasonable |
22 | | expenses incurred or to be incurred in the search for |
23 | | and recovery
of the minor child, including but not |
24 | | limited to legal fees, court costs,
private |
25 | | investigator fees, and travel costs.
|
26 | | (14) Prohibition of entry. Prohibit the respondent |
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1 | | from entering or
remaining in the residence or household |
2 | | while the respondent is under the
influence of alcohol or |
3 | | drugs and constitutes a threat to the safety and
well-being |
4 | | of the petitioner or the petitioner's children.
|
5 | | (14.5) Prohibition of firearm possession.
|
6 | | (a) Prohibit a respondent against whom an order of |
7 | | protection was issued from possessing any firearms |
8 | | during the duration of the order if the order: |
9 | | (1) was issued after a hearing of which such |
10 | | person received
actual notice, and at which such |
11 | | person had an opportunity to
participate; |
12 | | (2) restrains such person from harassing, |
13 | | stalking, or
threatening an intimate partner of |
14 | | such person or child of such
intimate partner or |
15 | | person, or engaging in other conduct that
would |
16 | | place an intimate partner in reasonable fear of |
17 | | bodily
injury to the partner or child; and |
18 | | (3)(i) includes a finding that such person |
19 | | represents a
credible threat to the physical |
20 | | safety of such intimate partner
or child; or
(ii) |
21 | | by its terms explicitly prohibits the use, |
22 | | attempted
use, or threatened use of physical force |
23 | | against such intimate
partner or child that would |
24 | | reasonably be expected to cause
bodily injury. |
25 | | Any Firearm Owner's Identification Card in the
|
26 | | possession of the respondent, except as provided in |
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1 | | subsection (b), shall be ordered by the court to be |
2 | | turned
over to the local law enforcement agency. The |
3 | | local law enforcement agency shall immediately mail |
4 | | the card to the Department of State Police Firearm |
5 | | Owner's Identification Card Office
for safekeeping. |
6 | | The court shall
issue a warrant for seizure of any |
7 | | firearm in the possession of the respondent, to be kept |
8 | | by the local law enforcement agency for safekeeping, |
9 | | except as provided in subsection (b).
The period of |
10 | | safekeeping shall be for the duration of the order of |
11 | | protection. The firearm or firearms and Firearm |
12 | | Owner's Identification Card, if unexpired, shall at |
13 | | the respondent's request, be returned to the |
14 | | respondent at the end
of the order of protection. It is |
15 | | the respondent's responsibility to notify the |
16 | | Department of State Police Firearm Owner's |
17 | | Identification Card Office.
|
18 | | (b) If the respondent is a peace officer as defined |
19 | | in Section 2-13 of
the
Criminal Code of 2012, the court |
20 | | shall order that any firearms used by the
respondent in |
21 | | the performance of his or her duties as a
peace officer |
22 | | be surrendered to
the chief law enforcement executive |
23 | | of the agency in which the respondent is
employed, who |
24 | | shall retain the firearms for safekeeping for the |
25 | | duration of the order of protection.
|
26 | | (c) Upon expiration of the period of safekeeping, |
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1 | | if the firearms or Firearm Owner's Identification Card |
2 | | cannot be returned to respondent because respondent |
3 | | cannot be located, fails to respond to requests to |
4 | | retrieve the firearms, or is not lawfully eligible to |
5 | | possess a firearm, upon petition from the local law |
6 | | enforcement agency, the court may order the local law |
7 | | enforcement agency to destroy the firearms, use the |
8 | | firearms for training purposes, or for any other |
9 | | application as deemed appropriate by the local law |
10 | | enforcement agency; or that the firearms be turned over |
11 | | to a third party who is lawfully eligible to possess |
12 | | firearms, and who does not reside with respondent.
|
13 | | (15) Prohibition of access to records. If an order of |
14 | | protection
prohibits respondent from having contact with |
15 | | the minor child,
or if petitioner's address is omitted |
16 | | under subsection (b) of
Section 203, or if necessary to |
17 | | prevent abuse or wrongful removal or
concealment of a minor |
18 | | child, the order shall deny respondent access to, and
|
19 | | prohibit respondent from inspecting, obtaining, or |
20 | | attempting to
inspect or obtain, school or any other |
21 | | records of the minor child
who is in the care of |
22 | | petitioner.
|
23 | | (16) Order for payment of shelter services. Order |
24 | | respondent to
reimburse a shelter providing temporary |
25 | | housing and counseling services to
the petitioner for the |
26 | | cost of the services, as certified by the shelter
and |
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1 | | deemed reasonable by the court.
|
2 | | (17) Order for injunctive relief. Enter injunctive |
3 | | relief necessary
or appropriate to prevent further abuse of |
4 | | a family or household member
or further abuse, neglect, or |
5 | | exploitation of a high-risk adult with
disabilities or to |
6 | | effectuate one of the granted remedies, if supported by the
|
7 | | balance of hardships. If the harm to be prevented by the |
8 | | injunction is abuse
or any other harm that one of the |
9 | | remedies listed in paragraphs (1) through
(16) of this |
10 | | subsection is designed to prevent, no further evidence is
|
11 | | necessary that the harm is an irreparable injury.
|
12 | | (c) Relevant factors; findings.
|
13 | | (1) In determining whether to grant a specific remedy, |
14 | | other than
payment of support, the court shall consider
|
15 | | relevant factors, including but not limited to the |
16 | | following:
|
17 | | (i) the nature, frequency, severity, pattern and |
18 | | consequences of the
respondent's past abuse, neglect |
19 | | or exploitation of the petitioner or
any family or |
20 | | household member, including the concealment of his or |
21 | | her
location in order to evade service of process or |
22 | | notice, and the likelihood of
danger of future abuse, |
23 | | neglect, or exploitation to petitioner or any member of
|
24 | | petitioner's or respondent's family or household; and
|
25 | | (ii) the danger that any minor child will be abused |
26 | | or neglected or
improperly relocated removed from the |
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1 | | jurisdiction, improperly concealed within the
State or |
2 | | improperly separated from the child's primary |
3 | | caretaker.
|
4 | | (2) In comparing relative hardships resulting to the |
5 | | parties from loss
of possession of the family home, the |
6 | | court shall consider relevant
factors, including but not |
7 | | limited to the following:
|
8 | | (i) availability, accessibility, cost, safety, |
9 | | adequacy, location and
other characteristics of |
10 | | alternate housing for each party and any minor child
or |
11 | | dependent adult in the party's care;
|
12 | | (ii) the effect on the party's employment; and
|
13 | | (iii) the effect on the relationship of the party, |
14 | | and any minor
child or dependent adult in the party's |
15 | | care, to family, school, church
and community.
|
16 | | (3) Subject to the exceptions set forth in paragraph |
17 | | (4) of this
subsection, the court shall make its findings |
18 | | in an official record or in
writing, and shall at a minimum |
19 | | set forth the following:
|
20 | | (i) That the court has considered the applicable |
21 | | relevant factors
described in paragraphs (1) and (2) of |
22 | | this subsection.
|
23 | | (ii) Whether the conduct or actions of respondent, |
24 | | unless
prohibited, will likely cause irreparable harm |
25 | | or continued abuse.
|
26 | | (iii) Whether it is necessary to grant the |
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1 | | requested relief in order
to protect petitioner or |
2 | | other alleged abused persons.
|
3 | | (4) For purposes of issuing an ex parte emergency order |
4 | | of protection,
the court, as an alternative to or as a |
5 | | supplement to making the findings
described in paragraphs |
6 | | (c)(3)(i) through (c)(3)(iii) of this subsection, may
use |
7 | | the following procedure:
|
8 | | When a verified petition for an emergency order of |
9 | | protection in
accordance with the requirements of Sections |
10 | | 203 and 217 is
presented to the court, the court shall |
11 | | examine petitioner on oath or
affirmation. An emergency |
12 | | order of protection shall be issued by the court
if it |
13 | | appears from the contents of the petition and the |
14 | | examination of
petitioner that the averments are |
15 | | sufficient to indicate abuse by
respondent and to support |
16 | | the granting of relief under the issuance of the
emergency |
17 | | order of protection.
|
18 | | (5) Never married parties. No rights or |
19 | | responsibilities for a minor
child born outside of marriage |
20 | | attach to a putative father until a father and
child |
21 | | relationship has been established under the Illinois |
22 | | Parentage Act of
1984, the Illinois Public Aid Code, |
23 | | Section 12 of the Vital Records Act, the
Juvenile Court Act |
24 | | of 1987, the Probate Act of 1985, the Revised Uniform
|
25 | | Reciprocal Enforcement of Support Act, the Uniform |
26 | | Interstate Family Support
Act, the Expedited Child Support |
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1 | | Act of 1990, any judicial, administrative, or
other act of |
2 | | another state or territory, any other Illinois statute, or |
3 | | by any
foreign nation establishing the father and child |
4 | | relationship, any other
proceeding substantially in |
5 | | conformity with the Personal Responsibility and
Work |
6 | | Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), |
7 | | or where both
parties appeared in open court or at an |
8 | | administrative hearing acknowledging
under
oath or |
9 | | admitting by affirmation the existence of a father and |
10 | | child
relationship.
Absent such an adjudication, finding, |
11 | | or acknowledgement, no putative
father shall be granted
|
12 | | temporary allocation of parental responsibilities, |
13 | | including parenting time custody of the minor child, |
14 | | visitation with the minor child, or
physical care and |
15 | | possession of the minor child, nor shall an order of |
16 | | payment
for support of the minor child be entered.
|
17 | | (d) Balance of hardships; findings. If the court finds that |
18 | | the balance
of hardships does not support the granting of a |
19 | | remedy governed by
paragraph (2), (3), (10), (11), or (16) of |
20 | | subsection (b) of this Section,
which may require such |
21 | | balancing, the court's findings shall so
indicate and shall |
22 | | include a finding as to whether granting the remedy will
result |
23 | | in hardship to respondent that would substantially outweigh the |
24 | | hardship
to petitioner from denial of the remedy. The findings |
25 | | shall be an official
record or in writing.
|
26 | | (e) Denial of remedies. Denial of any remedy shall not be |
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1 | | based, in
whole or in part, on evidence that:
|
2 | | (1) Respondent has cause for any use of force, unless |
3 | | that cause
satisfies the standards for justifiable use of |
4 | | force provided by Article
7 of the Criminal Code of 2012;
|
5 | | (2) Respondent was voluntarily intoxicated;
|
6 | | (3) Petitioner acted in self-defense or defense of |
7 | | another, provided
that, if petitioner utilized force, such |
8 | | force was justifiable under
Article 7 of the Criminal Code |
9 | | of 2012;
|
10 | | (4) Petitioner did not act in self-defense or defense |
11 | | of another;
|
12 | | (5) Petitioner left the residence or household to avoid |
13 | | further abuse,
neglect, or exploitation by respondent;
|
14 | | (6) Petitioner did not leave the residence or household |
15 | | to avoid further
abuse, neglect, or exploitation by |
16 | | respondent;
|
17 | | (7) Conduct by any family or household member excused |
18 | | the abuse,
neglect, or exploitation by respondent, unless |
19 | | that same conduct would have
excused such abuse, neglect, |
20 | | or exploitation if the parties had not been
family or |
21 | | household members.
|
22 | | (Source: P.A. 96-701, eff. 1-1-10; 96-1239, eff. 1-1-11; |
23 | | 97-158, eff. 1-1-12; 97-294, eff. 1-1-12; 97-813, eff. 7-13-12; |
24 | | 97-1131, eff. 1-1-13; 97-1150, eff. 1-25-13.)
|
25 | | (750 ILCS 60/223) (from Ch. 40, par. 2312-23)
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1 | | Sec. 223. Enforcement of orders of protection.
|
2 | | (a) When violation is crime. A violation of any order of |
3 | | protection,
whether issued in a civil or criminal proceeding, |
4 | | shall be enforced
by a
criminal court when:
|
5 | | (1) The respondent commits the crime of violation of an |
6 | | order of
protection pursuant to Section 12-3.4 or 12-30 of |
7 | | the Criminal Code of
1961 or the Criminal Code of 2012, by
|
8 | | having knowingly violated:
|
9 | | (i) remedies described in paragraphs (1), (2), |
10 | | (3), (14),
or (14.5) of
subsection (b) of Section 214 |
11 | | of this Act; or
|
12 | | (ii) a remedy, which is substantially similar to |
13 | | the remedies
authorized under paragraphs (1), (2), |
14 | | (3), (14), and (14.5) of subsection (b)
of Section 214 |
15 | | of this Act, in a valid order of protection which is |
16 | | authorized
under the laws of another state, tribe, or |
17 | | United States territory; or
|
18 | | (iii) any other remedy when the act
constitutes a |
19 | | crime against the protected parties as defined by the
|
20 | | Criminal Code of 1961 or the Criminal Code of 2012.
|
21 | | Prosecution for a violation of an order of
protection |
22 | | shall not bar concurrent prosecution for any other crime,
|
23 | | including any crime that may have been committed at the |
24 | | time of the
violation of the order of protection; or
|
25 | | (2) The respondent commits the crime of child abduction |
26 | | pursuant
to Section 10-5 of the Criminal Code of 1961 or |
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1 | | the Criminal Code of 2012, by having knowingly violated:
|
2 | | (i) remedies described in paragraphs (5), (6) or |
3 | | (8) of subsection
(b) of
Section 214 of this Act; or
|
4 | | (ii) a remedy, which is substantially similar to |
5 | | the remedies
authorized under paragraphs (5), (6), or |
6 | | (8) of subsection (b) of Section 214
of this Act, in a |
7 | | valid order of protection which is authorized under the |
8 | | laws
of another state, tribe, or United States |
9 | | territory.
|
10 | | (b) When violation is contempt of court. A violation of any |
11 | | valid
Illinois order of protection, whether issued in a civil |
12 | | or criminal
proceeding, may be enforced through civil or |
13 | | criminal contempt procedures,
as appropriate, by any court with |
14 | | jurisdiction, regardless where the act or
acts which violated |
15 | | the order of protection were committed, to the extent
|
16 | | consistent with the venue provisions of this Act. Nothing in |
17 | | this Act
shall preclude any Illinois court from enforcing any |
18 | | valid order of
protection issued in another state. Illinois |
19 | | courts may enforce orders of
protection through both criminal |
20 | | prosecution and contempt proceedings,
unless the action which |
21 | | is second in time is barred by collateral estoppel
or the |
22 | | constitutional prohibition against double jeopardy.
|
23 | | (1) In a contempt proceeding where the petition for a |
24 | | rule to show
cause sets forth facts evidencing an immediate |
25 | | danger that the
respondent will flee the jurisdiction, |
26 | | conceal a child, or inflict physical
abuse on the |
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1 | | petitioner or minor children or on dependent adults in
|
2 | | petitioner's care, the court may order the
attachment of |
3 | | the respondent without prior service of the rule to show
|
4 | | cause or the petition for a rule to show cause. Bond shall |
5 | | be set unless
specifically denied in writing.
|
6 | | (2) A petition for a rule to show cause for violation |
7 | | of an order of
protection shall be treated as an expedited |
8 | | proceeding.
|
9 | | (b-1) The court shall not hold a school district or private |
10 | | or non-public school or any of its employees in civil or |
11 | | criminal contempt unless the school district or private or |
12 | | non-public school has been allowed to intervene. |
13 | | (b-2) The court may hold the parents, guardian, or legal |
14 | | custodian of a minor respondent in civil or criminal contempt |
15 | | for a violation of any provision of any order entered under |
16 | | this Act for conduct of the minor respondent in violation of |
17 | | this Act if the
parents, guardian, or legal custodian directed, |
18 | | encouraged, or assisted the respondent minor in such conduct. |
19 | | (c) Violation of custody or support orders or temporary or |
20 | | final judgments allocating parental responsibilities . A |
21 | | violation of remedies
described in paragraphs (5), (6), (8), or |
22 | | (9) of subsection (b) of Section
214 of this Act may be |
23 | | enforced by any remedy provided by Section 607.5 611 of
the |
24 | | Illinois Marriage and Dissolution of Marriage Act. The court |
25 | | may
enforce any order for support issued under paragraph (12) |
26 | | of subsection (b)
of Section 214 in the manner provided for |
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1 | | under Parts V and VII of the
Illinois Marriage and Dissolution |
2 | | of Marriage Act.
|
3 | | (d) Actual knowledge. An order of protection may be |
4 | | enforced pursuant to
this Section if the respondent violates |
5 | | the order after the
respondent has
actual knowledge of its |
6 | | contents as shown through one of the following means:
|
7 | | (1) By service, delivery, or notice under Section 210.
|
8 | | (2) By notice under Section 210.1 or 211.
|
9 | | (3) By service of an order of protection under Section |
10 | | 222.
|
11 | | (4) By other means demonstrating actual knowledge of |
12 | | the contents of the
order.
|
13 | | (e) The enforcement of an order of protection in civil or |
14 | | criminal court
shall not be affected by either of the |
15 | | following:
|
16 | | (1) The existence of a separate, correlative order, |
17 | | entered under Section
215.
|
18 | | (2) Any finding or order entered in a conjoined |
19 | | criminal proceeding.
|
20 | | (f) Circumstances. The court, when determining whether or |
21 | | not a
violation of an order of protection has occurred, shall |
22 | | not require
physical manifestations of abuse on the person of |
23 | | the victim.
|
24 | | (g) Penalties.
|
25 | | (1) Except as provided in paragraph (3) of this
|
26 | | subsection, where the court finds the commission of a crime |