Public Act 095-0374
 		





SB0454 Enrolled
LRB095 03689 AJO 23716 b






    AN ACT concerning 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 Section 503 as follows:
 



    (750 ILCS 5/503)  (from Ch. 40, par. 503)



    Sec. 503. Disposition of property. 

    (a) For purposes of this Act, "marital property" means all 
property acquired
by either spouse subsequent to the marriage, 
except the following, which is
known as "non-marital property":


        (1) property acquired by gift, legacy or descent;


        (2) property acquired in exchange for property 
    acquired before the
marriage or in exchange for property 
    acquired by gift, legacy or descent;


        (3) property acquired by a spouse after a judgment of 
    legal separation;


        (4) property excluded by valid agreement of the 
    parties;


        (5) any judgment or property obtained by judgment 
    awarded to a spouse
from the other spouse;


        (6) property acquired before the marriage;


        (7) the increase in value of property acquired by a 
    method listed in
paragraphs (1) through (6) of this 
    subsection, irrespective of whether the
increase results 
    from a contribution of marital property, non-marital 
    property,
the personal effort of a spouse, or otherwise, 
    subject to the right of
reimbursement provided in 
    subsection (c) of this Section; and


        (8) income from property acquired by a method listed in 
    paragraphs (1)
through (7)  of this subsection if the income 
    is not attributable to the
personal effort of a spouse.

    (b)(1) For purposes of distribution of property pursuant to 
this
Section, all property acquired by either spouse after the 
marriage and before a
judgment of dissolution of marriage or 
declaration of invalidity of marriage,
including non-marital 
property transferred into some form of co-ownership
between the 
spouses, is presumed to be marital property, regardless of 
whether
title is held individually or by the spouses in some 
form of co-ownership such
as joint tenancy, tenancy in common, 
tenancy by the entirety, or community
property.  The presumption 
of marital property is overcome by a showing that
the property 
was acquired by a method listed in subsection (a) of this 
Section.

    (2) For purposes of distribution of property pursuant to 
this Section,
all pension benefits (including pension benefits 
under the Illinois Pension
Code) acquired by either spouse 
after the marriage and before a judgment of
dissolution of 
marriage or declaration of invalidity of the marriage are

presumed to be marital property, regardless of which spouse 
participates in the
pension plan.  The presumption that these 
pension benefits are marital property
is overcome by a showing 
that the pension benefits were acquired by a method
listed in 
subsection (a) of this Section.  The right to a division of 
pension
benefits in just proportions under this Section is 
enforceable under Section
1-119 of the Illinois Pension Code.

    The value of pension benefits in a retirement system 
subject to the Illinois
Pension Code shall be determined in 
accordance with the valuation procedures
established by the 
retirement system.

    The recognition of pension benefits as marital property and 
the division of
those benefits pursuant to a Qualified Illinois 
Domestic Relations Order shall
not be deemed to be a 
diminishment, alienation, or impairment of those
benefits.  The 
division of pension benefits is an allocation of property in

which each spouse has a species of common ownership.

    (3) For purposes of distribution of property under this 
Section, all stock
options granted to either spouse after the 
marriage and before a judgment of
dissolution of marriage or 
declaration of invalidity of marriage, whether
vested or 
non-vested or whether their value is ascertainable, are 
presumed to
be marital property.  This presumption of marital 
property is overcome by a
showing that the stock options were 
acquired by a method listed in subsection
(a) of this Section.  
The court shall allocate stock options between the
parties at 
the time of the judgment of dissolution of marriage or 
declaration
of invalidity of marriage recognizing that the 
value of the stock options may
not be then determinable and 
that the actual division of the options may not
occur until a 
future date.  In making the allocation between the parties, the

court shall consider, in addition to the factors set forth in 
subsection (d) of
this Section, the following:


        (i) All circumstances underlying the grant of the stock 
    option including
but not limited to whether the grant was 
    for past, present, or future efforts,
or any combination 
    thereof.


        (ii) The length of time from the grant of the option to 
    the time the
option is exercisable.

    (c) Commingled marital and non-marital property shall be 
treated in
the following manner, unless otherwise agreed by the 
spouses:


        (1) When marital and non-marital property are 
    commingled by contributing
one estate of property into 
    another resulting in a loss of identity of the
contributed 
    property, the classification of the contributed property 
    is
transmuted to the estate receiving the contribution, 
    subject to the provisions
of paragraph (2) of this 
    subsection; provided that if marital and non-marital

    property are commingled into newly acquired property 
    resulting in a loss
of identity of the contributing 
    estates, the commingled property shall be
deemed 
    transmuted to marital property, subject to the provisions 
    of paragraph
(2) of this subsection.


        (2) When one estate of property makes a contribution to 
    another estate
of property, or when a spouse contributes 
    personal effort to non-marital
property, the contributing 
    estate shall be reimbursed from the estate receiving
the 
    contribution notwithstanding any transmutation; provided, 
    that no such
reimbursement shall be made with respect to a 
    contribution which is not
retraceable by clear and 
    convincing evidence, or was a gift, or, in the
case of a 
    contribution of personal effort of a spouse to non-marital 
    property,
unless the effort is significant and results in 
    substantial appreciation
of the non-marital property.  
    Personal effort of a spouse shall be deemed
a contribution 
    by the marital estate.  The court may provide for 
    reimbursement
out of the marital property to be divided or 
    by imposing a lien against the
non-marital property which 
    received the contribution.

    (d) In a proceeding for dissolution of marriage or 
declaration of invalidity
of marriage, or in a proceeding for 
disposition of property following
dissolution of marriage by a 
court which lacked personal jurisdiction over the
absent spouse 
or lacked jurisdiction to dispose of the property, the court

shall assign each spouse's non-marital property to that spouse.  
It also shall
divide the marital property without regard to 
marital misconduct in just
proportions considering all 
relevant factors, including:


        (1) the contribution of each party to the acquisition, 
    preservation, or
increase or decrease in value of the 
    marital or non-marital property, including
the 
    contribution of a spouse as a homemaker or to the family 
    unit;


        (2) the dissipation by each party of the marital or 
    non-marital property;


        (3) the value of the property assigned to each spouse;


        (4) the duration of the marriage;


        (5) the relevant economic circumstances of each spouse 
    when the division
of property is to become effective, 
    including the desirability of awarding
the family home, or 
    the right to live therein for reasonable periods, to the

    spouse having custody of the children;


        (6) any obligations and rights arising from a prior 
    marriage
of either party;


        (7) any antenuptial agreement of the parties;


        (8) the age, health, station, occupation, amount and 
    sources of income,
vocational skills, employability, 
    estate, liabilities, and needs of each of the
parties;


        (9) the custodial provisions for any children;


        (10) whether the apportionment is in lieu of or in 
    addition to
maintenance;


        (11) the reasonable opportunity of each spouse for 
    future acquisition
of capital assets and income; and


        (12) the tax consequences of the property division upon 
    the
respective economic circumstances of the parties.

    (e) Each spouse has a species of common ownership in the 
marital property
which vests at the time dissolution 
proceedings are commenced and continues
only during the 
pendency of the action.  Any such interest in marital property

shall not encumber that property so as to restrict its 
transfer, assignment
or conveyance by the title holder unless 
such title holder is specifically
enjoined from making such 
transfer, assignment or conveyance.

    (f) In a proceeding for dissolution of marriage or 
declaration of
invalidity of marriage or in a proceeding for 
disposition of property
following dissolution of marriage by a 
court that lacked personal
jurisdiction over the absent spouse 
or lacked jurisdiction to dispose of
the property, the court, 
in determining the value of the marital and
non-marital 
property for purposes of dividing the property, shall value the

property as of the date of trial or some other date as close to 
the date
of trial as is practicable.

    (g) The court if necessary to protect and promote the best 
interests of the
children may set aside a portion of the 
jointly or separately held
estates of the parties in a separate 
fund or trust for the support,
maintenance, education, physical 
and mental health, and general welfare of any minor, dependent,

or incompetent child of the parties.  In making a determination 
under this
subsection, the court may consider, among other 
things, the conviction of a
party of any of the offenses set 
forth in Section 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 
12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if 
the
victim is a
child of one or both of the parties, and there 
is a need for, and cost of,
care, healing and counseling for 
the child who is the victim of the crime.

    (h) Unless specifically directed by a reviewing court, or 
upon good
cause shown, the court shall not on remand consider 
any increase or
decrease in the value of any "marital" or 
"non-marital" property occurring
since the assessment of such 
property at the original trial or hearing, but
shall use only 
that assessment made at the original trial or hearing.

    (i) The court may make such judgments affecting the marital 
property
as may be just and may enforce such judgments by 
ordering a sale of marital
property, with proceeds therefrom to 
be applied as determined by the court.

    (j) After proofs have closed in the final hearing on all 
other issues
between the parties (or in conjunction with the 
final hearing, if all parties
so stipulate) and before judgment 
is entered, a party's petition for
contribution to fees and 
costs incurred in the proceeding shall be heard and
decided, in 
accordance with the following provisions:


        (1) A petition for contribution, if not filed before 
    the final hearing
on other issues between the parties, 
    shall be filed no later than 30 days after
the closing of 
    proofs in the final hearing or within such other period as 
    the
court orders.


        (2) Any award of contribution to one party from the 
    other party shall be
based on the criteria for division of 
    marital property under this Section 503
and, if maintenance 
    has been awarded, on the criteria for an award of

    maintenance under Section 504.


        (3) The filing of a petition for contribution shall not 
    be deemed to
constitute a waiver of the attorney-client 
    privilege between the petitioning
party and current or 
    former counsel; and such a waiver shall not constitute a

    prerequisite to a hearing for contribution.  If either 
    party's presentation on
contribution, however, includes 
    evidence within the scope of the
attorney-client 
    privilege, the disclosure or disclosures shall be narrowly

    construed and shall not be deemed by the court to 
    constitute a general waiver
of the privilege as to matters 
    beyond the scope of the presentation.


        (4) No finding on which a contribution award is based 
    or denied shall be
asserted against counsel or former 
    counsel for purposes of any hearing under
subsection (c) or 
    (e) of Section 508.


        (5) A contribution award (payable to either the 
    petitioning
party or the party's counsel, or jointly, as 
    the court determines) may be in
the form of either a set 
    dollar amount or a percentage of fees and costs (or a

    portion of fees and costs) to be subsequently agreed upon 
    by the petitioning
party and counsel or, alternatively, 
    thereafter determined in a hearing
pursuant to subsection 
    (c) of Section 508 or previously or thereafter
determined 
    in an independent proceeding under subsection (e) of 
    Section
508.


        (6) The changes to this Section 503 made by this 
    amendatory Act of 1996
apply to cases pending on or after 
    June 1, 1997, except as otherwise provided
in Section 508.

(Source: P.A. 91-445, eff. 1-1-00; 92-306, eff. 1-1-02.)