093_SB0053

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 1        AN ACT concerning family law.

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

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

 6        (750 ILCS 5/505) (from Ch. 40, par. 505)
 7        Sec. 505.  Child support; contempt; penalties.
 8        (a)  In a proceeding for dissolution of  marriage,  legal
 9    separation,   declaration   of   invalidity  of  marriage,  a
10    proceeding for child support  following  dissolution  of  the
11    marriage  by  a court which lacked personal jurisdiction over
12    the  absent  spouse,  a  proceeding  for  modification  of  a
13    previous order for child support under Section  510  of  this
14    Act, or any proceeding authorized under Section 501 or 601 of
15    this  Act, the court may order either or both parents owing a
16    duty of support to a child of the marriage to pay  an  amount
17    reasonable  and  necessary for his support, without regard to
18    marital misconduct. The duty of  support   owed  to  a  minor
19    child  includes  the obligation to provide for the reasonable
20    and necessary physical, mental and emotional health needs  of
21    the child.
22             (1)  The Court shall determine the minimum amount of
23        support by using the following guidelines:
24          Number of Children       Percent of Supporting Party's
25                                             Net Income
26                  1                             20%
27                  2                             25%
28                  3                             32%
29                  4                             40%
30                  5                             45%
31              6 or more                         50%
 
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 1             (2)  The  above  guidelines shall be applied in each
 2        case unless the court makes a finding that application of
 3        the guidelines would be inappropriate, after  considering
 4        the  best  interests  of  the  child in light of evidence
 5        including but not limited to one or more of the following
 6        relevant factors:
 7                  (a)  the financial resources and needs  of  the
 8             child;
 9                  (b)  the  financial  resources and needs of the
10             custodial parent;
11                  (c)  the standard of  living  the  child  would
12             have enjoyed had the marriage not been dissolved;
13                  (d)  the  physical  and  emotional condition of
14             the child, and his educational needs; and
15                  (e)  the financial resources and needs  of  the
16             non-custodial parent.
17             If  the  court  deviates  from  the  guidelines, the
18        court's finding shall state the amount  of  support  that
19        would   have  been  required  under  the  guidelines,  if
20        determinable.  The court  shall  include  the  reason  or
21        reasons for the variance from the guidelines.
22             (3)  "Net  income"  is  defined  as the total of all
23        income from all sources, minus the following deductions:
24                  (a)  Federal income  tax  (properly  calculated
25             withholding or estimated payments);
26                  (b)  State   income  tax  (properly  calculated
27             withholding or estimated payments);
28                  (c)  Social Security (FICA payments);
29                  (d)  Mandatory     retirement     contributions
30             required by law or as a condition of employment;
31                  (e)  Union dues;
32                  (f)  Dependent          and          individual
33             health/hospitalization insurance premiums;
34                  (g)  Prior   obligations    of    support    or
 
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 1             maintenance actually paid pursuant to a court order;
 2                  (h)  Expenditures  for  repayment of debts that
 3             represent reasonable and necessary expenses for  the
 4             production of income, medical expenditures necessary
 5             to  preserve life or health, reasonable expenditures
 6             for the benefit of the child and the  other  parent,
 7             exclusive  of  gifts.   The  court  shall reduce net
 8             income in determining the minimum amount of  support
 9             to be ordered only for the period that such payments
10             are   due   and  shall  enter  an  order  containing
11             provisions for its self-executing modification  upon
12             termination of such payment period.
13                  (i)  Amounts   properly  deducted  for  federal
14             income  tax  purposes  for  depreciation   of   farm
15             machinery and equipment.
16             (4)  In  cases  where  the  court order provides for
17        health/hospitalization  insurance  coverage  pursuant  to
18        Section  505.2  of  this  Act,  the  premiums  for   that
19        insurance,  or that portion of the premiums for which the
20        supporting party is responsible in the case of  insurance
21        provided  through  an  employer's  health  insurance plan
22        where the employer pays a portion of the premiums,  shall
23        be  subtracted from net income in determining the minimum
24        amount of support to be ordered.
25             (4.5)  In a proceeding for child  support  following
26        dissolution  of  the  marriage  by  a  court  that lacked
27        personal jurisdiction over  the  absent  spouse,  and  in
28        which  the  court is requiring payment of support for the
29        period before the date an order for  current  support  is
30        entered,  there  is  a  rebuttable  presumption  that the
31        supporting party's net income for the  prior  period  was
32        the  same  as his or her net income at the time the order
33        for current support is entered.
34             (5)  If the net income cannot be determined  because
 
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 1        of  default  or  any  other reason, the court shall order
 2        support  in  an  amount  considered  reasonable  in   the
 3        particular  case.   The  final  order  in all cases shall
 4        state the support level in dollar  amounts.  However,  if
 5        the  court  finds that the child support amount cannot be
 6        expressed exclusively as a dollar amount because all or a
 7        portion of the payor's net  income  is  uncertain  as  to
 8        source, time of payment, or amount, the court may order a
 9        percentage  amount  of  support in addition to a specific
10        dollar amount and enter  such  other  orders  as  may  be
11        necessary  to  determine  and enforce, on a timely basis,
12        the applicable support ordered.
13             (6)  If (i) the non-custodial  parent  was  properly
14        served   with   a  request  for  discovery  of  financial
15        information  relating  to  the   non-custodial   parent's
16        ability  to provide child support, (ii) the non-custodial
17        parent failed to comply with the request, despite  having
18        been  ordered  to  do  so  by  the  court,  and (iii) the
19        non-custodial parent is not present  at  the  hearing  to
20        determine  support despite having received proper notice,
21        then any relevant financial  information  concerning  the
22        non-custodial  parent's  ability to provide child support
23        that was obtained pursuant to subpoena and proper  notice
24        shall  be  admitted  into  evidence  without  the need to
25        establish any further foundation for its admission.
26        (a-5)  In an action to enforce an order for support based
27    on the respondent's  failure  to  make  support  payments  as
28    required  by  the  order,  notice  of proceedings to hold the
29    respondent in contempt for that failure may be served on  the
30    respondent  by  personal service or by regular mail addressed
31    to the respondent's last known address. The respondent's last
32    known address may be determined from records of the clerk  of
33    the  court,  from  the Federal Case Registry of Child Support
34    Orders, or by any other reasonable means.
 
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 1        (b)  Failure of either parent to comply with an order  to
 2    pay  support  shall  be  punishable  as  in  other  cases  of
 3    contempt.  In addition to other penalties provided by law the
 4    Court may, after finding the parent guilty of contempt, order
 5    that the parent be:
 6             (1)  placed  on  probation  with  such conditions of
 7        probation as the Court deems advisable;
 8             (2)  sentenced to periodic imprisonment for a period
 9        not to exceed 6 months; provided, however, that the Court
10        may permit the parent to be released for periods of  time
11        during the day or night to:
12                  (A)  work; or
13                  (B)  conduct  a business or other self-employed
14             occupation.
15        The Court may further  order  any  part  or  all  of  the
16    earnings   of   a   parent  during  a  sentence  of  periodic
17    imprisonment paid to the Clerk of the Circuit Court or to the
18    parent having custody or to the guardian  having  custody  of
19    the minor children of the sentenced parent for the support of
20    said minor children until further order of the Court.
21        If  there is a unity of interest and ownership sufficient
22    to render no financial  separation  between  a  non-custodial
23    parent  and another person or persons or business entity, the
24    court may pierce the ownership veil of the  person,  persons,
25    or  business  entity  to discover assets of the non-custodial
26    parent held in the name of that  person,  those  persons,  or
27    that  business  entity.    The  following  circumstances  are
28    sufficient  to  authorize  a  court to order discovery of the
29    assets of a person, persons, or business entity and to compel
30    the application of any discovered assets  toward  payment  on
31    the judgment for support:
32             (1)  the   non-custodial   parent  and  the  person,
33        persons, or business entity maintain records together.
34             (2)  the  non-custodial  parent  and   the   person,
 
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 1        persons,  or  business  entity  fail  to maintain an arms
 2        length relationship between themselves with regard to any
 3        assets.
 4             (3)  the non-custodial parent  transfers  assets  to
 5        the  person,  persons, or business entity with the intent
 6        to perpetrate a fraud on the custodial parent.
 7        With respect to assets which are real property, no  order
 8    entered  under this paragraph shall affect the rights of bona
 9    fide purchasers, mortgagees,  judgment  creditors,  or  other
10    lien  holders  who   acquire  their interests in the property
11    prior to the time a notice of lis  pendens  pursuant  to  the
12    Code  of  Civil Procedure or a copy of the order is placed of
13    record in the office of the recorder of deeds for the  county
14    in which the real property is located.
15        The  court may also order in cases where the parent is 90
16    days or more delinquent in payment of  support  or  has  been
17    adjudicated  in  arrears  in  an  amount  equal  to  90  days
18    obligation  or  more,  that  the  parent's  Illinois  driving
19    privileges  be  suspended until the court determines that the
20    parent is in compliance with the order of support. The  court
21    may  also  order that the parent be issued a family financial
22    responsibility  driving  permit  that  would  allow   limited
23    driving  privileges  for  employment  and medical purposes in
24    accordance with Section 7-702.1 of the Illinois Vehicle Code.
25    The clerk of  the  circuit  court  shall  certify  the  order
26    suspending  the  driving privileges of the parent or granting
27    the issuance of a  family  financial  responsibility  driving
28    permit  to  the Secretary of State on forms prescribed by the
29    Secretary. Upon receipt of the authenticated  documents,  the
30    Secretary   of  State  shall  suspend  the  parent's  driving
31    privileges until further order of the  court  and  shall,  if
32    ordered  by  the  court, subject to the provisions of Section
33    7-702.1  of  the  Illinois  Vehicle  Code,  issue  a   family
34    financial responsibility driving permit to the parent.
 
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 1        In  addition  to  the penalties or punishment that may be
 2    imposed  under  this  Section,  any  person   whose   conduct
 3    constitutes  a  violation  of  Section  15 of the Non-Support
 4    Punishment Act may be prosecuted under that Act, and a person
 5    convicted under that Act may be sentenced in accordance  with
 6    that  Act.   The sentence may include but need not be limited
 7    to a requirement that the person  perform  community  service
 8    under  Section  50  of  that  Act  or  participate  in a work
 9    alternative program under Section 50 of that Act.   A  person
10    may  not  be  required  to  participate in a work alternative
11    program under Section  50  of  that  Act  if  the  person  is
12    currently participating in a work program pursuant to Section
13    505.1 of this Act.
14        A  support  obligation,  or  any  portion  of  a  support
15    obligation,  which becomes due and remains unpaid for 30 days
16    or more shall accrue simple interest at the rate  of  9%  per
17    annum.  An  order for support entered or modified on or after
18    January 1, 2002 shall contain  a  statement  that  a  support
19    obligation  required  under  the  order,  or any portion of a
20    support obligation required under the order, that becomes due
21    and remains unpaid for 30 days or more  shall  accrue  simple
22    interest at the rate of 9% per annum.  Failure to include the
23    statement  in  the  order  for  support  does  not affect the
24    validity of the order or the accrual of interest as  provided
25    in this Section.
26        (c)  A  one-time  charge  of  20%  is  imposable upon the
27    amount of past-due child support owed on July 1,  1988  which
28    has  accrued under a support order entered by the court.  The
29    charge shall be imposed in accordance with the provisions  of
30    Section  10-21  of  the Illinois Public Aid Code and shall be
31    enforced by the court upon petition.
32        (d)  Any new or existing support  order  entered  by  the
33    court  under  this  Section shall be deemed to be a series of
34    judgments  against  the  person  obligated  to  pay   support
 
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 1    thereunder,  each  such  judgment to be in the amount of each
 2    payment or installment of support and each such  judgment  to
 3    be deemed entered as of the date the corresponding payment or
 4    installment becomes due under the terms of the support order.
 5    Each  such  judgment  shall  have  the full force, effect and
 6    attributes of any other judgment of this State, including the
 7    ability to be enforced. A lien arises  by  operation  of  law
 8    against  the  real  and personal property of the noncustodial
 9    parent for each installment of overdue support  owed  by  the
10    noncustodial parent.
11        (e)  When  child  support is to be paid through the clerk
12    of the court in a county of 1,000,000  inhabitants  or  less,
13    the  order  shall  direct the obligor to pay to the clerk, in
14    addition to the child support payments, all fees  imposed  by
15    the  county  board  under  paragraph (3) of subsection (u) of
16    Section 27.1 of the Clerks of Courts  Act.   Unless  paid  in
17    cash  or pursuant to an order for withholding, the payment of
18    the fee shall be by a separate instrument  from  the  support
19    payment and shall be made to the order of the Clerk.
20        (f)  All  orders  for  support, when entered or modified,
21    shall include a provision requiring the obligor to notify the
22    court and, in cases in which a party is receiving  child  and
23    spouse  services  under  Article X of the Illinois Public Aid
24    Code, the Illinois Department of Public Aid, within  7  days,
25    (i)  of  the  name  and  address  of  any new employer of the
26    obligor, (ii)  whether  the  obligor  has  access  to  health
27    insurance  coverage  through  the  employer  or  other  group
28    coverage and, if so, the policy name and number and the names
29    of  persons  covered  under  the policy, and (iii) of any new
30    residential or mailing address or  telephone  number  of  the
31    non-custodial  parent.  In any subsequent action to enforce a
32    support order, upon a  sufficient  showing  that  a  diligent
33    effort  has  been  made  to  ascertain  the  location  of the
34    non-custodial parent, service  of  process  or  provision  of
 
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 1    notice  necessary  in  the case may be made at the last known
 2    address of the non-custodial parent in any  manner  expressly
 3    provided  by  the  Code of Civil Procedure or this Act, which
 4    service shall be sufficient for purposes of due process.
 5        (g)  An order for support shall include a date  on  which
 6    the  current  support obligation terminates.  The termination
 7    date shall be no earlier than the date  on  which  the  child
 8    covered  by  the  order will attain the age of majority or is
 9    otherwise emancipated. The order for support shall state that
10    the termination date does not apply to any arrearage that may
11    remain unpaid on that date.  Nothing in this subsection shall
12    be construed to prevent the court from modifying the order.
13        (h)  An order entered under this Section shall include  a
14    provision  requiring the obligor to report to the obligee and
15    to the clerk of court within 10 days each  time  the  obligor
16    obtains   new   employment,   and  each  time  the  obligor's
17    employment is terminated for any reason.  The report shall be
18    in writing and shall, in the case of new employment,  include
19    the  name and address of the new employer.  Failure to report
20    new employment or the termination of current  employment,  if
21    coupled  with nonpayment of support for a period in excess of
22    60 days, is indirect  criminal  contempt.   For  any  obligor
23    arrested  for  failure to report new employment bond shall be
24    set in the amount of the child support that should have  been
25    paid  during  the  period of unreported employment.  An order
26    entered under this Section shall  also  include  a  provision
27    requiring  the  obligor  and  obligee  parents to advise each
28    other of a change in residence within 5 days  of  the  change
29    except  when  the  court  finds that the physical, mental, or
30    emotional health of a party or that  of  a  minor  child,  or
31    both,  would  be  seriously  endangered  by disclosure of the
32    party's address.
33        (i)  The court does not  lose  the  powers  of  contempt,
34    driver's   license   suspension,   or   other  child  support
 
                            -10-     LRB093 02608 LCB 02618 b
 1    enforcement  mechanisms,  including,  but  not  limited   to,
 2    criminal  prosecution  as  set  forth  in  this Act, upon the
 3    emancipation of the minor child or children.
 4    (Source: P.A. 91-113,  eff.  7-15-99;  91-397,  eff.  1-1-00;
 5    91-655,   eff.  6-1-00;  91-767,  eff.  6-9-00;  92-16,  eff.
 6    6-28-01; 92-203, eff. 8-1-01; 92-374, eff.  8-15-01;  92-651,
 7    eff. 7-11-02.)