HB5853 94TH GENERAL ASSEMBLY

LRB094 21106 AJO 59434 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB5853

Introduced 10/31/06, by Rep. Monique D. Davis

SYNOPSIS AS INTRODUCED:

750 ILCS 5/103	from Ch. 40, par. 103
750 ILCS 5/302	from Ch. 40, par. 302
750 ILCS 5/304	from Ch. 40, par. 304
750 ILCS 5/403	from Ch. 40, par. 403
750 ILCS 5/501	from Ch. 40, par. 501
750 ILCS 5/511	from Ch. 40, par. 511
750 ILCS 5/604	from Ch. 40, par. 604
750 ILCS 5/606	from Ch. 40, par. 606

Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a party to an action for declaration of invalidity of marriage, dissolution of marriage, or legal separation may demand a trial by jury in accordance with the Code of Civil Procedure. Provides that the grounds for declaration of invalidity of marriage, dissolution of marriage, or legal separation shall be tried by the court without a jury. Provides that uncontested issues shall not be tried by a jury. Provides that proceedings for temporary relief and all post-judgment proceedings to enforce or modify a judgment of dissolution of marriage, legal separation, or invalidity of marriage shall be heard by the court without a jury. Provides that, in an action tried by the court without a jury, the court may interview a child of the marriage in chambers. Provides that, where the issue of custody is tried by a court with a jury, the court shall determine questions of law and the jury shall determine questions of fact.

A BILL FOR

AN ACT in relation to civil law.

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

Section 5. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 103, 302, 304, 403, 501, 511, 604, and 606 as follows:

(750 ILCS 5/103) (from Ch. 40, par. 103)

Sec. 103. Trial by Jury.) There shall be no trial by jury under this Act, except where authorized in this Act.

(Source: P.A. 80-923.)

(750 ILCS 5/302) (from Ch. 40, par. 302)

Sec. 302. Time of Commencement.) (a) A declaration of invalidity under paragraphs (1) through (3) of Section 301 may be sought by any of the following persons and must be commenced within the times specified:

(1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the legal representative of the party who lacked capacity to consent, no later than 90 days after the petitioner obtained knowledge of the described condition;

(2) for the reason set forth in paragraph (2) of Section 301, by either party, no later than one year after the petitioner obtained knowledge of the described condition;

(3) for the reason set forth in paragraph (3) of Section 301, by the underaged party, his parent or guardian, prior to the time the underaged party reaches the age at which he could have married without needing to satisfy the omitted requirement.

(b) In no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsections (1), (2) and (3) of Section 301.

(c) A declaration of invalidity for the reason set forth in paragraph (4) of Section 301 may be sought by either party, the legal spouse in case of a bigamous marriage, the State's Attorney or a child of either party, at any time not to exceed 3 years following the death of the first party to die.

(d) Any party to a proceeding may demand a trial by jury in accordance with the Code of Civil Procedure. The grounds for declaration of invalidity of marriage shall be tried by the court without a jury.

(Source: P.A. 80-923.)

(750 ILCS 5/304) (from Ch. 40, par. 304)

Sec. 304. Retroactivity.) Unless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive judgment on third parties, that the interests of justice would be served by making the judgment not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of this Act relating to property rights of the spouses, maintenance, support and custody of children on dissolution of marriage are applicable to non-retroactive judgments of invalidity of marriage only. If the court declares a judgment of invalidity of marriage to be non-retroactive and a party has demanded a trial by jury, contested issues relating to property rights of the spouses, maintenance, support, and custody of children shall be tried by the court with a jury.

(Source: P.A. 80-923.)

(750 ILCS 5/403) (from Ch. 40, par. 403)

Sec. 403. Pleadings - Commencement - Abolition of Existing Defenses - Procedure.)

(a) The petition for dissolution of marriage or legal separation shall be verified and shall minimally set forth:

(1) the age, occupation and residence of each party and his length of residence in this State;

(2) the date of the marriage and the place at which it was registered;

(2.5) whether a petition for dissolution of marriage is pending in any other county or state;

(3) that the jurisdictional requirements of subsection (a) of Section 401 have been met and that there exist grounds for dissolution of marriage or legal separation. The petitioner need only allege the name of the particular grounds relied upon, which shall constitute a legally sufficient allegation of the grounds; and the respondent shall be entitled to demand a bill of particulars prior to trial setting forth the facts constituting the grounds, if he so chooses. The petition must also contain:

(4) the names, ages and addresses of all living children of the marriage and whether the wife is pregnant;

(5) any arrangements as to support, custody and visitation of the children and maintenance of a spouse; and

(6) the relief sought.

(b) Either or both parties to the marriage may initiate the proceeding. Either party may demand a trial by jury in accordance with the Code of Civil Procedure.

(c) The previously existing defense of recrimination is abolished. The defense of condonation is abolished only as to condonations occurring after a proceeding is filed under this Act and after the court has acquired jurisdiction over the respondent.

(d) The court may join additional parties necessary and proper for the exercise of its authority under this Act.

(e) Contested trials shall be on a bifurcated basis with the grounds being tried first. The grounds shall be tried by the court without a jury. Upon the court determining that the grounds exist, the court may allow additional time for the parties to settle amicably the remaining issues before resuming the trial, or may proceed immediately to trial on the remaining issues. In cases tried by the court without a jury where the grounds are uncontested and proved as in cases of default, the trial on all other remaining issues shall proceed immediately, if so ordered by the court or if the parties so stipulate, issue on the pleadings notwithstanding. In cases tried by the court with a jury, the trial on all other remaining issues shall proceed after the court has impaneled the jury. Uncontested issues shall not be submitted to the jury.

(f) Even if no bill of particulars shall have been filed demanding the specification of the particular facts underlying the allegation of the grounds, the court shall nonetheless require proper and sufficient proof of the existence of the grounds.

(Source: P.A. 90-174, eff. 10-1-97.)

(750 ILCS 5/501) (from Ch. 40, par. 501)

Sec. 501. Temporary Relief.) In all proceedings under this Act, temporary relief shall be as follows:

(a) Either party may move for:

(1) temporary maintenance or temporary support of a child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested;

(2) a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:

(i) restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued;

(ii) enjoining a party from removing a child from the jurisdiction of the court;

(iii) enjoining a party from striking or interfering with the personal liberty of the other party or of any child; or

(iv) providing other injunctive relief proper in the circumstances; or

(3) other appropriate temporary relief.

(b) The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.

(c) A response hereunder may be filed within 21 days after service of notice of motion or at the time specified in the temporary restraining order.

(c-1) As used in this subsection (c-1), "interim attorney's fees and costs" means attorney's fees and costs assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees and costs either already incurred or to be incurred, and "interim award" means an award of interim attorney's fees and costs. Interim awards shall be governed by the following:

(1) Except for good cause shown, a proceeding for (or relating to) interim attorney's fees and costs shall be nonevidentiary, summary in nature, and expeditious. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including:

(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;

(B) the needs of each party;

(C) the realistic earning capacity of each party;

(D) any impairment to present earning capacity of either party, including age and physical and emotional health;

(E) the standard of living established during the marriage;

(F) the degree of complexity of the issues, including custody, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;

(G) each party's access to relevant information;

(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and

(I) any other factor that the court expressly finds to be just and equitable.

(2) Any assessment of an interim award (including one pursuant to an agreed order) shall be without prejudice to any final allocation and without prejudice as to any claim or right of either party or any counsel of record at the time of the award. Any such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under subsection (j) of Section 503 or a hearing on counsel's fees under subsection (c) of Section 508. Unless otherwise ordered by the court at the final hearing between the parties or in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508, interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties' marital estate. Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs, after notice.

(3) In any proceeding under this subsection (c-1), the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties.

(4) The changes to this Section 501 made by this amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.

(d) A temporary order entered under this Section:

(1) does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing; and

(3) terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.

(e) All proceedings for temporary relief shall be heard by the court without a jury.

(Source: P.A. 89-712, eff. 6-1-97.)

(750 ILCS 5/511) (from Ch. 40, par. 511)

Sec. 511. Procedure. A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced or modified by order of court pursuant to petition.

(a) Any judgment entered within this State may be enforced or modified in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent. If neither party continues to reside in the county wherein such judgment was entered or last modified, the court on the motion of either party or on its own motion may transfer a post-judgment proceeding, including a proceeding under the Income Withholding for Support Act, to another county or judicial circuit, as appropriate, where either party resides. If the post-judgment proceeding is with respect to maintenance or support, any such transfer shall be to the county or judicial circuit wherein the recipient or proposed recipient of such maintenance or support resides.

(b) In any post-judgment proceeding to enforce or modify in one judicial circuit the judgment of another judicial circuit of this State, the moving party shall commence the proceeding by filing a petition establishing the judgment and attaching a copy of the judgment as a part of the petition. The parties shall continue to be designated as in the original proceeding. Notice of the filing of the petition shall be mailed to the clerk of the court wherein the judgment was entered and last modified in the same manner as notice is mailed when registering a foreign judgment. Summons shall be served as provided by law.

(c) In any post-judgment proceeding to enforce or modify the judgment of another state, the moving party shall commence the proceeding by filing a petition to enroll that judgment, attaching a copy thereof as a part of the petition and proceed as provided for in paragraph (b) hereof.

(d) In any post-judgment proceeding to enforce a judgment or order for payment of maintenance or support, including a proceeding under the Income Withholding for Support Act, where the terms of such judgment or order provide that payments of such maintenance or support are to be made to the clerk of the court and where neither party continues to reside in the county wherein such judgment or order was entered or last modified, the court on the motion of either party or on its own motion may transfer the collection of the maintenance or support to the clerk of the court in another county or judicial circuit, as appropriate, wherein the recipient of the maintenance or support payments resides.

(e) All post-judgment proceedings to enforce or modify a judgment of dissolution, legal separation, or invalidity of marriage shall be heard by the court without a jury.

(Source: P.A. 90-673, eff. 1-1-99.)

(750 ILCS 5/604) (from Ch. 40, par. 604)

Sec. 604. Interviews.) (a) In a case tried by the court without a jury, the The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.

(b) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness.

(Source: P.A. 80-923.)

(750 ILCS 5/606) (from Ch. 40, par. 606)

Sec. 606. Hearings.

(a) Custody proceedings shall receive priority in being set for hearing.

(b) The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interest of the child.

(c) If no demand for a trial by jury has been made under Part III or Part IV, the The court, without a jury, shall determine questions of law and fact. If a demand for a trial by jury has been made under Part III or Part IV and custody is contested, the court shall determine questions of law and the jury shall determine questions of fact. If it finds that a public hearing may be detrimental to the child's best interest, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.

(d) If the court finds it necessary, in order to protect the child's welfare, that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the court may make an appropriate order sealing the record.

(e) Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.

(Source: P.A. 87-1081.)