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Public Act 102-0480
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| HB3484 Enrolled | LRB102 13864 LNS 19215 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Marriage and Dissolution of |
Marriage Act is amended by changing Section 501 as follows:
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(750 ILCS 5/501) (from Ch. 40, par. 501)
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Sec. 501. Temporary relief. In all proceedings under this |
Act,
temporary relief shall be as follows:
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(a) Either party may petition or move for:
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(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. One form of financial affidavit, as determined |
by the Supreme Court, shall be used statewide. The |
financial affidavit shall be supported by documentary |
evidence including, but not limited to, income tax |
returns, pay stubs, and banking statements. Unless the |
court otherwise directs, any affidavit or supporting |
documentary evidence submitted pursuant
to this paragraph |
shall not be made
part of the public record of the |
proceedings but shall be available to
the court or an |
appellate court in which the proceedings are subject to
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review, to the parties, their
attorneys, and such other |
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persons as the court
may direct. Upon motion of a party, a |
court may hold a hearing to determine whether and why |
there is a disparity between a party's sworn affidavit and |
the supporting documentation. If a party intentionally or |
recklessly files an inaccurate or misleading financial |
affidavit, the court shall impose significant penalties |
and sanctions including, but not limited to, costs and |
attorney's fees;
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(2) a temporary restraining order or preliminary |
injunction, accompanied
by affidavit showing a
factual |
basis for any of the following relief:
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(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; however, an order need |
not include an exception for transferring, |
encumbering,
or otherwise disposing of property in the |
usual course of business or for the necessities of |
life if the court enters appropriate orders that |
enable the parties to pay their necessary
personal and |
business expenses including, but not limited to, |
appropriate professionals to assist the court pursuant |
to subsection (l) of Section 503 to administer the |
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payment and accounting of such living and business |
expenses;
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(ii) enjoining a party from removing a child from |
the jurisdiction
of the court for more than 14 days;
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(iii) enjoining a party from striking or |
interfering with the
personal liberty of the other |
party or of any child; or
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(iv) providing other injunctive relief proper in |
the circumstances;
or
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(3) other appropriate temporary relief including, in |
the discretion of the court, ordering the purchase or sale |
of assets and requiring that a party or parties borrow |
funds in the appropriate circumstances.
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Issues concerning temporary maintenance or temporary |
support of a child entitled to support shall be dealt with on a |
summary basis based on allocated parenting time, financial |
affidavits, tax returns, pay stubs, banking statements, and |
other
relevant documentation, except an evidentiary hearing |
may be held upon a showing of good cause. If a party |
intentionally or recklessly files an inaccurate or misleading |
financial affidavit, the court shall impose significant |
penalties and sanctions including, but not limited to, costs |
and attorney's fees resulting from the improper |
representation. |
(b) The court may issue a temporary restraining order |
without
requiring notice to the other party only if it finds, |
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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.
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(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.
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(c-1) As used in this subsection (c-1), "interim |
attorney's fees and
costs" means attorney's fees and costs, |
including an allowance from the other party for a retainer fee |
to obtain an attorney,
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, including an allowance from |
the other party for a retainer fee to obtain an attorney. |
Interim awards shall be governed by the following:
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(1) Except for good cause shown, a proceeding for (or |
relating to) interim
attorney's fees and costs in a |
pre-judgment dissolution proceeding shall be |
nonevidentiary and summary in nature. All hearings for or |
relating to interim attorney's fees and costs under this |
subsection shall be scheduled expeditiously by the court. |
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 |
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opposing party a reasonable
opportunity to file a |
responsive pleading. A responsive pleading shall set out
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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. A responsive |
pleading shall include costs incurred, and shall indicate |
whether the costs are paid or unpaid.
In assessing an
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interim award, the court shall consider all relevant |
factors, as presented,
that appear reasonable and |
necessary, including to the extent applicable:
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(A) the income and property of each party, |
including alleged marital
property within the sole |
control of one party and alleged non-marital property
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within access to a party;
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(B) the needs of each party;
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(C) the realistic earning capacity of each party;
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(D) any impairment to present earning capacity of |
either party,
including
age and physical and emotional |
health;
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(E) the standard of living established during the |
marriage;
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(F) the degree of complexity of the issues, |
including allocation of parental responsibility, |
valuation
or division (or both) of closely held |
businesses, and tax planning, as well as
reasonable |
needs for expert investigations or expert witnesses, |
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or both;
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(G) each party's access to relevant information;
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(H) the amount of the payment or payments made or |
reasonably expected to
be made to the attorney for the |
other party; and
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(I) any other factor that the court expressly |
finds to be just and
equitable.
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(1.5) A petition for interim fees that seeks an order |
for the payment of an initial retainer to retain an |
attorney shall have attached to it an affidavit from the |
attorney to be retained that the attorney has been |
contacted by the moving party and the attorney has agreed |
to enter an appearance if the court grants the relief |
requested, together with a certificate from the moving |
party that the interim fees granted will only be used by |
the moving party to retain the attorney. Any interim fees |
granted pursuant to this paragraph shall be paid directly |
to the identified attorney. |
(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 |
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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 in a form designated by the Supreme Court. An |
order for the award of interim attorney's fees shall be a |
standardized form order and labeled "Interim Fee Award |
Order".
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(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
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expenditure of more fees and costs for a party that is not |
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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.
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(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.
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(c-2) Allocation of use of marital residence. Where
there |
is on file a verified complaint or verified petition seeking
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temporary eviction from the marital residence, the court may, |
during the
pendency of the proceeding, only in cases where the |
physical or mental well-being of either spouse or
his or her |
children is jeopardized by occupancy of the marital residence |
by both
spouses, and only upon due notice and full hearing, |
unless waived by the
court on good cause shown, enter orders |
granting the exclusive possession of the marital residence to |
either spouse,
by eviction from, or restoration of, the |
marital residence, until the final
determination of the cause |
pursuant to the factors listed in Section 602.7 of this Act. No |
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such order shall in any manner affect any
estate in homestead |
property of either party. In entering orders under this |
subsection (c-2), the court shall balance hardships to the |
parties. |
(d) A temporary order entered under this Section:
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(1) does not prejudice the rights of the parties or |
the child which
are to be adjudicated at subsequent |
hearings in the proceeding;
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(2) may be revoked or modified before final judgment, |
on a showing
by affidavit and upon hearing; and
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(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.
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(e) The fees or costs of mediation shall
be borne by the |
parties and may be assessed by the court as it deems equitable |
without prejudice and are subject to reallocation at the |
conclusion of the case. |
(f) Companion animals. Either party may petition or move |
for the temporary allocation of sole or joint possession of |
and responsibility for a companion animal jointly owned by the |
parties. In issuing an order under this subsection, the court |
shall take into consideration the well-being of the companion |
animal. As used in this Section, "companion animal" does not |
include a service animal as defined in Section 2.01c of the |
Humane Care for Animals Act. |