Full Text of SB1137 101st General Assembly
SB1137 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 SB1137 Introduced 2/5/2019, by Sen. Neil Anderson SYNOPSIS AS INTRODUCED: |
| 750 ILCS 5/504 | from Ch. 40, par. 504 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that notwithstanding any other provision of law, federal veterans' disability benefits received by a party shall not be considered to be income of that party for purposes of any maintenance determination. Provides that the court may not require that a party use federal veterans' disability benefits to pay maintenance.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil 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 504 as follows:
| 6 | | (750 ILCS 5/504) (from Ch. 40, par. 504)
| 7 | | Sec. 504. Maintenance.
| 8 | | (a) Entitlement to maintenance. In a proceeding for | 9 | | dissolution of marriage, legal separation,
declaration of | 10 | | invalidity of marriage, or dissolution of a civil union, a | 11 | | proceeding for maintenance
following a legal separation or | 12 | | dissolution of the marriage or civil union by a court which | 13 | | lacked personal
jurisdiction over the absent spouse, a | 14 | | proceeding for modification of a previous order for maintenance | 15 | | under Section 510 of this Act, or any proceeding authorized | 16 | | under Section 501 of this Act, the court may grant a | 17 | | maintenance award for either spouse in amounts and for periods | 18 | | of
time as the court deems just, without regard to marital | 19 | | misconduct, and the maintenance may
be paid from the income or | 20 | | property of the other spouse. The court shall first make a | 21 | | finding as to whether a maintenance award is appropriate, after | 22 | | consideration
of all relevant factors, including:
| 23 | | (1) the income and property of each party, including |
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| 1 | | marital property
apportioned and non-marital property | 2 | | assigned to the party seeking maintenance as well as all | 3 | | financial obligations imposed on the parties as a result of | 4 | | the dissolution of marriage;
| 5 | | (2) the needs of each party;
| 6 | | (3) the realistic present and future earning capacity | 7 | | of each party;
| 8 | | (4) any impairment of the present and future earning | 9 | | capacity of the
party seeking maintenance due to that party | 10 | | devoting time to domestic
duties or having forgone or | 11 | | delayed education, training,
employment, or
career | 12 | | opportunities due to the marriage;
| 13 | | (5) any impairment of the realistic present or future | 14 | | earning capacity of the party against whom maintenance is | 15 | | sought; | 16 | | (6) the time necessary to enable the party seeking | 17 | | maintenance to
acquire appropriate education, training, | 18 | | and employment, and whether that
party is able to support | 19 | | himself or herself through appropriate employment;
| 20 | | (6.1) the effect of any parental responsibility | 21 | | arrangements and its effect on a party's ability to seek or | 22 | | maintain employment;
| 23 | | (7) the standard of living established during the | 24 | | marriage;
| 25 | | (8) the duration of the marriage;
| 26 | | (9) the age, health, station, occupation, amount and |
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| 1 | | sources of income, vocational skills, employability, | 2 | | estate, liabilities, and the needs of each of the parties;
| 3 | | (10) all sources of public and private income | 4 | | including, without limitation, disability and retirement | 5 | | income; | 6 | | (11) the tax consequences to each party;
| 7 | | (12) contributions and services by the party seeking | 8 | | maintenance to
the education, training, career or career | 9 | | potential, or license of the
other spouse;
| 10 | | (13) any valid agreement of the parties; and
| 11 | | (14) any other factor that the court expressly finds to | 12 | | be just and
equitable.
| 13 | | (b) (Blank).
| 14 | | (b-1) Amount and duration of maintenance. Unless the court | 15 | | finds that a maintenance award is appropriate, it shall bar | 16 | | maintenance as to the party seeking maintenance regardless of | 17 | | the length of the marriage at the time the action was | 18 | | commenced. Only if the court finds that a maintenance award is | 19 | | appropriate, the court shall order guideline maintenance in | 20 | | accordance with paragraph (1) or non-guideline maintenance in | 21 | | accordance with paragraph (2) of this subsection (b-1). If the | 22 | | application of guideline maintenance results in a combined | 23 | | maintenance and child support obligation that exceeds 50% of | 24 | | the payor's net income, the court may determine non-guideline | 25 | | maintenance in accordance with paragraph (2) of this subsection | 26 | | (b-1), non-guideline child support in accordance with |
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| 1 | | paragraph (3.4) of subsection (a) of Section 505, or both. | 2 | | (1) Maintenance award in accordance with guidelines. | 3 | | If the combined gross annual income of the parties is less | 4 | | than $500,000 and the payor has no obligation to pay child | 5 | | support or maintenance or both from a prior relationship, | 6 | | maintenance payable after the date the parties' marriage is | 7 | | dissolved shall be in accordance with subparagraphs (A) and | 8 | | (B) of this paragraph (1), unless the court makes a finding | 9 | | that the application of the guidelines would be | 10 | | inappropriate. | 11 | | (A) The amount of maintenance under this paragraph | 12 | | (1) shall be calculated by taking 33 1/3% of the | 13 | | payor's net annual income minus 25% of the payee's net | 14 | | annual income. The amount calculated as maintenance, | 15 | | however, when added to the net income of the payee, | 16 | | shall not result in the payee receiving an amount that | 17 | | is in excess of 40% of the combined net income of the | 18 | | parties. | 19 | | (A-1) Modification of maintenance orders entered | 20 | | before January 1, 2019 that are and continue to be | 21 | | eligible for inclusion in the gross income of the payee | 22 | | for federal income tax purposes and deductible by the | 23 | | payor shall be calculated by taking 30% of the payor's | 24 | | gross annual income minus 20% of the payee's gross | 25 | | annual income, unless both parties expressly provide | 26 | | otherwise in the modification order. The amount |
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| 1 | | calculated as maintenance, however, when added to the | 2 | | gross income of the payee, may not result in the payee | 3 | | receiving an amount that is in excess of 40% of the | 4 | | combined gross income of the parties. | 5 | | (B) The duration of an award under this paragraph | 6 | | (1) shall be calculated by multiplying the length of | 7 | | the marriage at the time the action was commenced by | 8 | | whichever of
the following factors applies: less than 5 | 9 | | years (.20); 5 years or more but less than 6 years | 10 | | (.24); 6 years or more but less than 7
years (.28); 7 | 11 | | years or more but less than 8
years (.32); 8 years or | 12 | | more but less than 9
years (.36); 9 years or more but | 13 | | less than 10 years (.40); 10 years or more but less | 14 | | than 11
years (.44); 11 years or more but less than 12
| 15 | | years (.48); 12 years or more but less than 13
years | 16 | | (.52); 13 years or more but less than 14
years (.56); | 17 | | 14 years or more but less than 15
years (.60); 15 years | 18 | | or more but less than 16
years (.64); 16 years or more | 19 | | but less than 17
years (.68); 17 years or more but less | 20 | | than 18
years (.72); 18 years or more but less than 19
| 21 | | years (.76); 19 years or more but less than 20
years | 22 | | (.80). For a marriage of 20 or more years, the court, | 23 | | in its discretion, shall order maintenance for a period | 24 | | equal to the length of the
marriage or for an | 25 | | indefinite term. | 26 | | (1.5) In the discretion of the court, any term of |
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| 1 | | temporary maintenance paid by court order under Section 501 | 2 | | may be a corresponding credit to the duration of | 3 | | maintenance set forth in subparagraph (b-1)(1)(B). | 4 | | (2) Maintenance award not in accordance with | 5 | | guidelines. Any non-guidelines award of maintenance shall | 6 | | be made after the court's consideration of all relevant | 7 | | factors set forth in subsection (a) of this Section. | 8 | | (b-2) Findings. In each case involving the issue of | 9 | | maintenance, the court shall make specific findings of fact, as | 10 | | follows: | 11 | | (1) the court shall state its reasoning for awarding or | 12 | | not awarding maintenance and shall include references to | 13 | | each relevant factor set forth in subsection (a) of this | 14 | | Section; | 15 | | (2) if the court deviates from applicable guidelines | 16 | | under paragraph (1) of subsection (b-1), it shall state in | 17 | | its findings the amount of maintenance (if determinable) or | 18 | | duration that would have been required under the guidelines | 19 | | and the reasoning for any variance from the guidelines; and | 20 | | (3) the court shall state whether the maintenance is | 21 | | fixed-term, indefinite, reviewable, or reserved by the | 22 | | court. | 23 | | (b-3) Gross income. For purposes of this Section, the term | 24 | | "gross income" means all income from all sources, within the | 25 | | scope of that phrase in Section 505 of this Act, except | 26 | | maintenance payments in the pending proceedings shall not be |
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| 1 | | included. | 2 | | (b-3.5) Net income. As used in this Section, "net income" | 3 | | has the meaning provided in Section 505 of this Act, except | 4 | | maintenance payments in the pending proceedings shall not be | 5 | | included. | 6 | | (b-4) Modification of maintenance orders entered before | 7 | | January 1, 2019. For any order for maintenance or unallocated | 8 | | maintenance and child support entered before January 1, 2019 | 9 | | that is modified after December 31, 2018, payments thereunder | 10 | | shall continue to retain the same tax treatment for federal | 11 | | income tax purposes unless both parties expressly agree | 12 | | otherwise and the agreement is included in the modification | 13 | | order. | 14 | | (b-4.5) Maintenance designation. | 15 | | (1) Fixed-term maintenance. If a court grants | 16 | | maintenance for a fixed term, the court shall designate the | 17 | | termination of the period during which this maintenance is | 18 | | to be paid. Maintenance is barred after the end of the | 19 | | period during which fixed-term maintenance is to be paid. | 20 | | (2) Indefinite maintenance. If a court grants | 21 | | maintenance for an indefinite term, the court shall not | 22 | | designate a termination date. Indefinite maintenance shall | 23 | | continue until modification or termination under Section | 24 | | 510. | 25 | | (3) Reviewable maintenance. If a court grants | 26 | | maintenance for a specific term with a review, the court |
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| 1 | | shall designate the period of the specific term and state | 2 | | that the maintenance is reviewable. Upon review, the court | 3 | | shall make a finding in accordance with subdivision (b-8) | 4 | | of this Section, unless the maintenance is modified or | 5 | | terminated under Section 510. | 6 | | (b-5) Interest on maintenance. Any maintenance obligation | 7 | | including any unallocated maintenance and child support | 8 | | obligation, or any portion of any support obligation, that | 9 | | becomes due and remains unpaid shall accrue simple interest as | 10 | | set forth in Section 505 of this Act.
| 11 | | (b-7) Maintenance judgments. Any new or existing | 12 | | maintenance order including any unallocated maintenance and | 13 | | child support order entered by the court under this Section | 14 | | shall be deemed to be a series of judgments against the person | 15 | | obligated to pay support thereunder. Each such judgment to be | 16 | | in the amount of each payment or installment of support and | 17 | | each such judgment to be deemed entered as of the date the | 18 | | corresponding payment or installment becomes due under the | 19 | | terms of the support order, except no judgment shall arise as | 20 | | to any installment coming due after the termination of | 21 | | maintenance as provided by Section 510 of the Illinois Marriage | 22 | | and Dissolution of Marriage Act or the provisions of any order | 23 | | for maintenance. Each such judgment shall have the full force, | 24 | | effect and attributes of any other judgment of this State, | 25 | | including the ability to be enforced. Notwithstanding any other | 26 | | State or local law to the contrary, a lien arises by operation |
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| 1 | | of law against the real and personal property of the obligor | 2 | | for each installment of overdue support owed by the obligor. | 3 | | (b-8) Review of maintenance. Upon review of any previously | 4 | | ordered maintenance award, the court may extend maintenance for | 5 | | further review, extend maintenance for a fixed non-modifiable | 6 | | term, extend maintenance for an indefinite term, or permanently | 7 | | terminate maintenance in accordance with subdivision | 8 | | (b-1)(1)(A) of this Section. | 9 | | (c) Maintenance during an appeal. The court may grant and | 10 | | enforce the payment of maintenance during
the pendency of an | 11 | | appeal as the court shall deem reasonable and proper.
| 12 | | (d) Maintenance during imprisonment. No maintenance shall | 13 | | accrue during the period in which a party is
imprisoned for | 14 | | failure to comply with the court's order for the payment of
| 15 | | such maintenance.
| 16 | | (e) Fees when maintenance is paid through the clerk. When | 17 | | maintenance is to be paid through the clerk of the court in a
| 18 | | county of 500,000 inhabitants or less, the order shall direct | 19 | | the obligor
to pay to the clerk, in addition to the maintenance | 20 | | payments, all fees
imposed by the county board under paragraph | 21 | | (4) of subsection (bb) of
Section 27.1a of the Clerks of Courts | 22 | | Act. When maintenance is to be paid through the clerk of the | 23 | | court in a
county of more than 500,000 but less than 3,000,000 | 24 | | inhabitants, the order shall direct the obligor
to pay to the | 25 | | clerk, in addition to the maintenance payments, all fees
| 26 | | imposed by the county board under paragraph (4) of subsection |
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| 1 | | (bb) of
Section 27.2 of the Clerks of Courts Act. Unless paid | 2 | | in cash or pursuant
to an order for withholding, the payment of | 3 | | the fee shall be by a separate
instrument from the support | 4 | | payment and shall be made to the order of
the Clerk.
| 5 | | (f) Maintenance secured by life insurance. An award ordered | 6 | | by a court upon entry of a dissolution judgment or upon entry | 7 | | of an award of maintenance following a reservation of | 8 | | maintenance in a dissolution judgment may be reasonably | 9 | | secured, in whole or in part, by life insurance on the
payor's | 10 | | life on terms as to which the parties agree or, if the parties | 11 | | do not agree, on such terms determined by the court,
subject to | 12 | | the following: | 13 | | (1) With respect to existing life insurance, provided | 14 | | the court is apprised through evidence,
stipulation, or | 15 | | otherwise as to level of death benefits, premium, and other | 16 | | relevant
data and makes findings relative thereto, the | 17 | | court may allocate death benefits, the right
to assign | 18 | | death benefits, or the obligation for future premium | 19 | | payments between the
parties as it deems just. | 20 | | (2) To the extent the court determines that its award | 21 | | should be secured, in whole or in part,
by new life | 22 | | insurance on the payor's life, the court may only order: | 23 | | (i) that the payor cooperate on all appropriate | 24 | | steps for the payee to obtain
such new life insurance; | 25 | | and | 26 | | (ii) that the payee, at his or her sole option and |
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| 1 | | expense, may obtain such new life
insurance on the | 2 | | payor's life up to a maximum level of death benefit | 3 | | coverage,
or descending death benefit coverage, as is | 4 | | set by the court, such level not to exceed a reasonable
| 5 | | amount in light of the court's award, with the payee or | 6 | | the
payee's designee being the beneficiary of such life | 7 | | insurance. | 8 | | In determining the maximum level of death benefit coverage, | 9 | | the court shall take into account all relevant facts and | 10 | | circumstances, including the impact on access to life | 11 | | insurance by the maintenance payor. If in resolving any | 12 | | issues under paragraph (2) of this subsection (f) a court | 13 | | reviews any submitted or proposed application for new | 14 | | insurance on the life of a maintenance payor, the review | 15 | | shall be in camera. | 16 | | (3) (Blank). | 17 | | (g) Federal veterans' benefits. Notwithstanding any other | 18 | | provision of law, federal veterans' disability benefits | 19 | | received by a party shall not be considered to be income of | 20 | | that party for purposes of any maintenance determination under | 21 | | this Section. The court may not require that a party use | 22 | | federal veterans' disability benefits to pay maintenance. | 23 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-520, | 24 | | eff. 1-1-18 (see Section 5 of P.A. 100-565 for the effective | 25 | | date of P.A. 100-520); 100-923, eff. 1-1-19 .)
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