State of Illinois
92nd General Assembly

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 1        AN ACT in relation to families.

 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 503 as follows:

 6        (750 ILCS 5/503) (from Ch. 40, par. 503)
 7        Sec. 503.  Disposition of property.
 8        (a)  For  purposes  of this Act, "marital property" means
 9    all property acquired by  either  spouse  subsequent  to  the
10    marriage,   except   the   following,   which   is  known  as
11    "non-marital property":
12             (1)  property acquired by gift, legacy or descent;
13             (2)  property  acquired  in  exchange  for  property
14        acquired before the marriage or in exchange for  property
15        acquired by gift, legacy or descent;
16             (3)  property  acquired by a spouse after a judgment
17        of legal separation;
18             (4)  property excluded by  valid  agreement  of  the
19        parties;
20             (5)  any  judgment  or property obtained by judgment
21        awarded to a spouse from the other spouse;
22             (6)  property acquired before the marriage;
23             (7)  the increase in value of property acquired by a
24        method listed in  paragraphs  (1)  through  (6)  of  this
25        subsection,  irrespective of whether the increase results
26        from a  contribution  of  marital  property,  non-marital
27        property,  the personal effort of a spouse, or otherwise,
28        subject  to  the  right  of  reimbursement  provided   in
29        subsection (c) of this Section; and
30             (8)  income  from  property  acquired  by  a  method
31        listed  in paragraphs (1) through (7)  of this subsection
                            -2-                LRB9206225DJtm
 1        if the income is not attributable to the personal  effort
 2        of a spouse.
 3        (b)(1)  For purposes of distribution of property pursuant
 4    to this Section, all property acquired by either spouse after
 5    the marriage and before a judgment of dissolution of marriage
 6    or   declaration   of   invalidity   of  marriage,  including
 7    non-marital  property   transferred   into   some   form   of
 8    co-ownership  between  the spouses, is presumed to be marital
 9    property, regardless of whether title is held individually or
10    by the spouses in some form of  co-ownership  such  as  joint
11    tenancy,  tenancy  in  common,  tenancy  by  the entirety, or
12    community property.  The presumption of marital  property  is
13    overcome  by  a  showing  that the property was acquired by a
14    method listed in subsection (a) of this Section.
15        (2)  For purposes of distribution of property pursuant to
16    this  Section,  all  pension  benefits   (including   pension
17    benefits  under the Illinois Pension Code) acquired by either
18    spouse  after  the  marriage  and  before   a   judgment   of
19    dissolution  of  marriage or declaration of invalidity of the
20    marriage are presumed to be marital property,  regardless  of
21    which   spouse   participates   in  the  pension  plan.   The
22    presumption that these pension benefits are marital  property
23    is  overcome  by  a  showing  that  the pension benefits were
24    acquired by  a  method  listed  in  subsection  (a)  of  this
25    Section.  The right to a division of pension benefits in just
26    proportions  under  this Section is enforceable under Section
27    1-119 of the Illinois Pension Code.
28        The value of pension  benefits  in  a  retirement  system
29    subject  to  the Illinois Pension Code shall be determined in
30    accordance with the valuation procedures established  by  the
31    retirement system.
32        The  recognition  of pension benefits as marital property
33    and the division of those benefits pursuant  to  a  Qualified
34    Illinois Domestic Relations Order shall not be deemed to be a
                            -3-                LRB9206225DJtm
 1    diminishment,  alienation,  or  impairment of those benefits.
 2    The division of pension benefits is an allocation of property
 3    in which each spouse has a species of common ownership.
 4        (c)  Commingled marital and non-marital property shall be
 5    treated in the following manner, unless otherwise  agreed  by
 6    the spouses:
 7             (1)  When   marital  and  non-marital  property  are
 8        commingled by contributing one estate  of  property  into
 9        another   resulting   in   a  loss  of  identity  of  the
10        contributed   property,   the   classification   of   the
11        contributed  property  is  transmuted   to   the   estate
12        receiving  the contribution, subject to the provisions of
13        paragraph  (2)  of  this  subsection;  provided  that  if
14        marital and  non-marital  property  are  commingled  into
15        newly  acquired  property resulting in a loss of identity
16        of the  contributing  estates,  the  commingled  property
17        shall  be  deemed transmuted to marital property, subject
18        to the provisions of paragraph (2) of this subsection.
19             (2)  When   one   estate   of   property   makes   a
20        contribution to another estate of  property,  or  when  a
21        spouse   contributes   personal   effort  to  non-marital
22        property, the contributing  estate  shall  be  reimbursed
23        from    the    estate    receiving    the    contribution
24        notwithstanding any transmutation; provided, that no such
25        reimbursement   shall   be   made   with   respect  to  a
26        contribution  which  is  not  retraceable  by  clear  and
27        convincing evidence, or was a gift, or, in the case of  a
28        contribution   of   personal   effort   of  a  spouse  to
29        non-marital property, unless the  effort  is  significant
30        and   results   in   substantial   appreciation   of  the
31        non-marital property.  Personal effort of a spouse  shall
32        be  deemed  a  contribution  by  the marital estate.  The
33        court may provide for reimbursement out  of  the  marital
34        property  to be divided or by imposing a lien against the
                            -4-                LRB9206225DJtm
 1        non-marital property which received the contribution.
 2        (d)  In a  proceeding  for  dissolution  of  marriage  or
 3    declaration of invalidity of marriage, or in a proceeding for
 4    disposition  of property following dissolution of marriage by
 5    a court which lacked personal jurisdiction  over  the  absent
 6    spouse or lacked jurisdiction to dispose of the property, the
 7    court shall assign each spouse's non-marital property to that
 8    spouse.   It  also  shall divide the marital property without
 9    regard to marital misconduct in just proportions  considering
10    all relevant factors, including:
11             (1)  the   contribution   of   each   party  to  the
12        acquisition, preservation, or  increase  or  decrease  in
13        value  of  the marital or non-marital property, including
14        the contribution of a spouse as a  homemaker  or  to  the
15        family unit;
16             (2)  the dissipation by each party of the marital or
17        non-marital property;
18             (3)  the  value  of  the  property  assigned to each
19        spouse;
20             (4)  the duration of the marriage;
21             (5)  the relevant  economic  circumstances  of  each
22        spouse  when  the  division  of  property  is  to  become
23        effective,  including  the  desirability  of awarding the
24        family home, or the right to live therein for  reasonable
25        periods, to the spouse having custody of the children;
26             (6)  any obligations and rights arising from a prior
27        marriage of either party;
28             (7)  any antenuptial agreement of the parties;
29             (8)  the  age,  health,  station, occupation, amount
30        and sources of income, vocational skills,  employability,
31        estate, liabilities, and needs of each of the parties;
32             (9)  the custodial provisions for any children;
33             (10)  whether  the apportionment is in lieu of or in
34        addition to maintenance;
                            -5-                LRB9206225DJtm
 1             (11)  the reasonable opportunity of each spouse  for
 2        future acquisition of capital assets and income; and
 3             (12)  the  tax consequences of the property division
 4        upon  the  respective  economic  circumstances   of   the
 5        parties.
 6        (e)  Each spouse has a species of common ownership in the
 7    marital property which vests (i) at the time of the marriage,
 8    if  the  dissolution proceedings are commenced within 3 years
 9    after that time, or  (ii)  3  years  before  the  dissolution
10    proceedings are commenced, if the marriage occurred more than
11    3  years  before  the  dissolution proceedings are commenced.
12    This common ownership and continues only during the  pendency
13    of  the  action.  Any such interest in marital property shall
14    not encumber that property so as to  restrict  its  transfer,
15    assignment  or  conveyance  by  the  title holder unless such
16    title  holder  is  specifically  enjoined  from  making  such
17    transfer, assignment or conveyance.
18        (f)  In a  proceeding  for  dissolution  of  marriage  or
19    declaration  of invalidity of marriage or in a proceeding for
20    disposition of property following dissolution of marriage  by
21    a  court  that  lacked  personal jurisdiction over the absent
22    spouse or lacked jurisdiction to dispose of the property, the
23    court,  in  determining  the  value  of   the   marital   and
24    non-marital  property  for purposes of dividing the property,
25    shall value the property as of the  date  of  trial  or  some
26    other date as close to the date of trial as is practicable.
27        (g)  The  court  if  necessary to protect and promote the
28    best interests of the children may set aside a portion of the
29    jointly or separately  held  estates  of  the  parties  in  a
30    separate   fund   or  trust  for  the  support,  maintenance,
31    education, and general welfare of any  minor,  dependent,  or
32    incompetent  child of the parties.  In making a determination
33    under this subsection, the court may  consider,  among  other
34    things,  the conviction of a party of any of the offenses set
                            -6-                LRB9206225DJtm
 1    forth in Section 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13,
 2    12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of  1961
 3    if  the  victim is a child of one or both of the parties, and
 4    there  is  a  need  for,  and  cost  of,  care,  healing  and
 5    counseling for the child who is the victim of the crime.
 6        (h)  Unless specifically directed by a  reviewing  court,
 7    or  upon  good  cause  shown,  the  court shall not on remand
 8    consider any  increase  or  decrease  in  the  value  of  any
 9    "marital"  or  "non-marital"  property  occurring  since  the
10    assessment of such property at the original trial or hearing,
11    but shall use only that assessment made at the original trial
12    or hearing.
13        (i)  The  court  may  make  such  judgments affecting the
14    marital  property  as  may  be  just  and  may  enforce  such
15    judgments by  ordering  a  sale  of  marital  property,  with
16    proceeds therefrom to be applied as determined by the court.
17        (j)  After proofs have closed in the final hearing on all
18    other  issues between the parties (or in conjunction with the
19    final hearing,  if  all  parties  so  stipulate)  and  before
20    judgment  is  entered, a party's petition for contribution to
21    fees and costs incurred in the proceeding shall be heard  and
22    decided, in accordance with the following provisions:
23             (1)  A  petition  for  contribution,  if  not  filed
24        before  the  final  hearing  on  other issues between the
25        parties, shall be filed no later than 30 days  after  the
26        closing  of  proofs  in  the final hearing or within such
27        other period as the court orders.
28             (2)  Any award of contribution to one party from the
29        other party shall be based on the criteria  for  division
30        of  marital  property  under  this  Section  503  and, if
31        maintenance has been awarded,  on  the  criteria  for  an
32        award of maintenance under Section 504.
33             (3)  The filing of a petition for contribution shall
34        not   be   deemed   to   constitute   a   waiver  of  the
                            -7-                LRB9206225DJtm
 1        attorney-client privilege between the  petitioning  party
 2        and  current  or  former counsel; and such a waiver shall
 3        not  constitute  a  prerequisite   to   a   hearing   for
 4        contribution.    If   either   party's   presentation  on
 5        contribution, however, includes evidence within the scope
 6        of  the  attorney-client  privilege,  the  disclosure  or
 7        disclosures shall be narrowly construed and shall not  be
 8        deemed by the court to constitute a general waiver of the
 9        privilege   as   to  matters  beyond  the  scope  of  the
10        presentation.
11             (4)  No finding on which  a  contribution  award  is
12        based  or  denied  shall  be  asserted against counsel or
13        former  counsel  for  purposes  of  any   hearing   under
14        subsection (c) or (e) of Section 508.
15             (5)  A  contribution  award  (payable  to either the
16        petitioning party or the party's counsel, or jointly,  as
17        the  court determines) may be in the form of either a set
18        dollar amount or a percentage of fees  and  costs  (or  a
19        portion of fees and costs) to be subsequently agreed upon
20        by  the  petitioning party and counsel or, alternatively,
21        thereafter determined in a hearing pursuant to subsection
22        (c) of Section 508 or previously or thereafter determined
23        in an independent  proceeding  under  subsection  (e)  of
24        Section 508.
25             (6)  The  changes  to  this Section 503 made by this
26        amendatory Act of 1996 apply to cases pending on or after
27        June 1, 1997, except as  otherwise  provided  in  Section
28        508.
29    (Source: P.A. 90-731, eff. 7-1-99; 91-445, eff. 1-1-00.)

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