SB2110eng 102ND GENERAL ASSEMBLY

SB2110 Engrossed LRB102 16311 LNS 21696 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 Public Aid Code is amended by changing Sections 10-1, 10-2, and 10-17 and by adding Section 10-17.05 as follows:

(305 ILCS 5/10-1) (from Ch. 23, par. 10-1)

Sec. 10-1. Declaration of Public Policy - Persons Eligible for Child Support Enforcement Services - Fees for Non-Applicants and Non-Recipients.) It is the intent of this Code that the financial aid and social welfare services herein provided supplement rather than supplant the primary and continuing obligation of the family unit for self-support to the fullest extent permitted by the resources available to it. This primary and continuing obligation applies whether the family unit of parents and children or of husband and wife remains intact and resides in a common household or whether the unit has been broken by absence of one or more members of the unit. The obligation of the family unit is particularly applicable when a member is in necessitous circumstances and lacks the means of a livelihood compatible with health and well-being.

It is the purpose of this Article to provide for locating an absent parent or spouse, for determining his financial circumstances, and for enforcing his legal obligation of support, if he is able to furnish support, in whole or in part. The Department of Healthcare and Family Services shall give priority to establishing, enforcing and collecting the current support obligation, and then to past due support owed to the family unit, except with respect to collections effected through the intercept programs provided for in this Article. The establishment or enforcement actions provided in this Article do not require a previous court order for custody/allocation of parental responsibilities.

The child support enforcement services provided hereunder shall be furnished dependents of an absent parent or spouse who are applicants for or recipients of financial aid under this Code. It is not, however, a condition of eligibility for financial aid that there be no responsible relatives who are reasonably able to provide support. Nor, except as provided in Sections 4-1.7 and 10-8, shall the existence of such relatives or their payment of support contributions disqualify a needy person for financial aid.

By accepting financial aid under this Code, a spouse or a parent or other person having physical or legal custody of a child shall be deemed to have made assignment to the Illinois Department for aid under Articles III, IV, V and VII or to a local governmental unit for aid under Article VI of any and all rights, title, and interest in any support obligation, including statutory interest thereon, up to the amount of financial aid provided. The rights to support assigned to the Department of Healthcare and Family Services (formerly Illinois Department of Public Aid) or local governmental unit shall constitute an obligation owed the State or local governmental unit by the person who is responsible for providing the support, and shall be collectible under all applicable processes.

The Department of Healthcare and Family Services shall also furnish the child support enforcement services established under this Article in behalf of persons who are not applicants for or recipients of financial aid under this Code in accordance with the requirements of Title IV, Part D of the Social Security Act. The Department may establish a schedule of reasonable fees, to be paid for the services provided and may deduct a collection fee, not to exceed 10% of the amount collected, from such collection. The Department of Healthcare and Family Services shall cause to be published and distributed publications reasonably calculated to inform the public that individuals who are not recipients of or applicants for public aid under this Code are eligible for the child support enforcement services under this Article X. Such publications shall set forth an explanation, in plain language, that the child support enforcement services program is independent of any public aid program under the Code and that the receiving of child support enforcement services in no way implies that the person receiving such services is receiving public aid.

(Source: P.A. 94-90, eff. 1-1-06; 95-331, eff. 8-21-07.)

(305 ILCS 5/10-2) (from Ch. 23, par. 10-2)

Sec. 10-2. Extent of Liability. A husband is liable for the support of his wife and a wife for the support of her husband. Unless the child is otherwise emancipated, the parents are severally liable for the support of any child under age 18, and for any child aged 18 who is attending high school, until that child graduates from high school, or attains the age of 19, whichever is earlier. The term "child" includes a child born out of wedlock, or legally adopted child.

The liability for the support of a child provided for in this Article does not require a previous court order for custody and is in conjunction with the guidelines set forth in Section 505 of the Illinois Marriage and Dissolution of Marriage Act, as provided for in Section 10-10 of this Article. The obligation to support contained in this Article is concurrent to any other appropriate State law.

This Article does not create, enlarge, abrogate, or diminish parental rights or duties under other laws of this State, including the common law.

An action to establish or enforce a support obligation, under this or any other Act providing for the support of a child, may be brought subsequent to an adjudication dismissing that action based on any of the following reasons: (1) no duty of support exists under this Article because this Article requires a previous court order for custody/allocation of parental responsibilities (as no such requirement exists under this Act); (2) there is no common law duty of support (as a common law duty of support is recognized as a valid basis for child support); or (3) there is no duty of support under the Illinois Parentage Act of 2015 because a judgment of paternity results in a de facto custody/allocation of parental responsibilities order (as this ignores the cumulative nature of the Act and the plain language of the statute permitting an explicit reservation of the issue. The Illinois Parentage Act of 2015 will be clarified regarding a de facto custody/allocation of parental responsibilities order as it relates to the Uniform Interstate Family Support Act).

In addition to the primary obligation of support imposed upon responsible relatives, such relatives, if individually or together in any combination they have sufficient income or other resources to support a needy person, in whole or in part, shall be liable for any financial aid extended under this Code to a person for whose support they are responsible, including amounts expended for funeral and burial costs.

(Source: P.A. 92-876, eff. 6-1-03.)

(305 ILCS 5/10-17) (from Ch. 23, par. 10-17)

Sec. 10-17. Other Actions and Remedies for Support. The procedures, actions, and remedies provided in this Article shall in no way be exclusive, but shall be available in addition to other actions and remedies of support, including, but not by way of limitation, the remedies provided in (a) the Illinois Parentage Act of 2015; (b) (blank); the "Non-Support of Spouse and Children Act", approved June 24, 1915, as amended; (b-5) the Non-Support Punishment Act; and (c) (blank); (d) the Illinois Marriage and Dissolution of Marriage Act; (e) the Uniform Child-Custody Jurisdiction and Enforcement Act; (f) the Uniform Interstate Family Support Act; and (g) the common law. the "Revised Uniform Reciprocal Enforcement of Support Act", approved August 28, 1969, as amended.

This Article does not create, enlarge, abrogate, or diminish parental rights or duties under other laws of this State, including the common law.

(Source: P.A. 99-85, eff. 1-1-16.)

(305 ILCS 5/10-17.05 new)

Sec. 10-17.05. Actions and remedies for support; other laws. Notwithstanding any other State or local law to the contrary, actions and remedies under this Article, the Uniform Interstate Family Support Act, or other State laws shall be cumulative and used in conjunction with one another, as appropriate. Actions and remedies under the Uniform Interstate Family Support Act shall not require a custody or visitation determination as a prerequisite to a determination of a support obligation. If a custody or visitation determination is not permitted under the Uniform Interstate Family Support Act, the determination may be made under another appropriate State law if the court has authority to make the decision under the appropriate law.

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Section 510 and by adding Sections 518 and 519 as follows:

(750 ILCS 5/510) (from Ch. 40, par. 510)

Sec. 510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.

(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (b), clause (3) of Section 505.2, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification. An order for child support may be modified as follows:

(1) upon a showing of a substantial change in circumstances; and

(2) without the necessity of showing a substantial change in circumstances, as follows:

(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or

(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child's health care needs.

The provisions of subparagraph (a)(2)(A) shall apply only in cases in which a party is receiving child support enforcement services from the Department of Healthcare and Family Services under Article X of the Illinois Public Aid Code, and only when at least 36 months have elapsed since the order for child support was entered or last modified.

The court may grant a petition for modification that seeks to apply the changes made to subsection (a) of Section 505 by Public Act 99-764 to an order entered before the effective date of Public Act 99-764 only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of Public Act 99-764 itself does not constitute a substantial change in circumstances warranting a modification.

(a-5) An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances. The court may grant a petition for modification that seeks to apply the changes made to Section 504 by this amendatory Act of the 100th General Assembly to an order entered before the effective date of this amendatory Act of the 100th General Assembly only upon a finding of a substantial change in circumstances that warrants application of the changes. The enactment of this amendatory Act of the 100th General Assembly itself does not constitute a substantial change in circumstances warranting a modification. In all such proceedings, as well as in proceedings in which maintenance is being reviewed, the court shall consider the applicable factors set forth in subsection (a) of Section 504 and the following factors:

(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and

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

(a-6) (Blank).

(b) The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.

(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. An obligor's obligation to pay maintenance or unallocated maintenance terminates by operation of law on the date the obligee remarries or the date the court finds cohabitation began. The obligor is entitled to reimbursement for all maintenance paid from that date forward. Any termination of an obligation for maintenance as a result of the death of the obligor, however, shall be inapplicable to any right of the other party or such other party's designee to receive a death benefit under such insurance on the obligor's life. An obligee must advise the obligor of his or her intention to marry at least 30 days before the remarriage, unless the decision is made within this time period. In that event, he or she must notify the obligor within 72 hours of getting married.

(c-5) In an adjudicated case, the court shall make specific factual findings as to the reason for the modification as well as the amount, nature, and duration of the modified maintenance award.

(d) Unless otherwise provided in this Act, or as agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, or if the child has attained the age of 18 and is still attending high school, provisions for the support of the child are terminated upon the date that the child graduates from high school or the date the child attains the age of 19, whichever is earlier, but not by the death of a parent obligated to support or educate the child. An existing obligation to pay for support or educational expenses, or both, is not terminated by the death of a parent. When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.

(e) The right to petition for support or educational expenses, or both, under Sections 505, 513, and 513.5 is not extinguished by the death of a parent. Upon a petition filed before or after a parent's death, the court may award sums of money out of the decedent's estate for the child's support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.

(f) A petition to modify or terminate child support or the allocation of parental responsibilities, including parenting time, shall not delay any child support enforcement litigation or supplementary proceeding on behalf of the obligee, including, but not limited to, a petition for a rule to show cause, for non-wage garnishment, or for a restraining order.

(Source: P.A. 99-90, eff. 1-1-16; 99-764, eff. 7-1-17; 100-15, eff. 7-1-17; 100-201, eff. 8-18-17; 100-923, eff. 1-1-19.)

(750 ILCS 5/518 new)

Sec. 518. Other actions and remedies for support. The procedures, actions, and remedies provided in this Act shall in no way be exclusive, but shall be available in addition to other actions and remedies of support, including, but not limited to, the remedies provided in: (a) the Illinois Parentage Act of 2015; (b) the Non-Support Punishment Act; (c) the Illinois Public Aid Code; (d) the Uniform Child-Custody Jurisdiction and Enforcement Act; (e) the Uniform Interstate Family Support Act; and (f) the common law.

This Act does not create, enlarge, abrogate, or diminish parental rights or duties under other laws of this State, including the common law.

(750 ILCS 5/519 new)

Sec. 519. Actions and remedies for support; other laws. Notwithstanding any other State or local law to the contrary, actions and remedies under this Act, the Uniform Interstate Family Support Act, or other State laws shall be cumulative and used in conjunction with one another, as appropriate. Actions and remedies under the Uniform Interstate Family Support Act shall not require a custody or visitation determination as a prerequisite to a determination of a support obligation. If a custody or visitation determination is not permitted under the Uniform Interstate Family Support Act, the determination may be made under another appropriate State law if the court has authority to make the decision under the appropriate law.

Section 15. The Illinois Parentage Act of 2015 is amended by changing Section 802 and by adding Sections 906 and 907 as follows:

(750 ILCS 46/802)

Sec. 802. Judgment.

(a) The court shall issue an order adjudicating whether a person alleged or claiming to be the parent is the parent of the child. An order adjudicating parentage must identify the child by name and date of birth.

The court may assess filing fees, reasonable attorney's fees, fees for genetic testing, other costs, necessary travel expenses, and other reasonable expenses incurred in a proceeding under this Act. The court may award attorney's fees, which may be paid directly to the attorney, who may enforce the order in the attorney's own name. The court may not assess fees, costs, or expenses against the support-enforcement agency of this State or another state, except as provided by other law.

The judgment shall contain or explicitly reserve provisions concerning any duty and amount of child support and may contain or explicitly reserve provisions concerning the allocation of parental responsibilities or guardianship of the child, parenting time privileges with the child, and the furnishing of bond or other security for the payment of the judgment, which the court shall determine in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act and any other applicable law of this State, to guide the court in a finding in the best interests of the child. In determining the allocation of parental responsibilities, relocation, parenting time, parenting time interference, support for a non-minor disabled child, educational expenses for a non-minor child, and related post-judgment issues, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act. Specifically, in determining the amount of a child support award, the court shall use the guidelines and standards set forth in subsection (a) of Section 505 and in Section 505.2 of the Illinois Marriage and Dissolution of Marriage Act. The court shall order all child support payments, determined in accordance with such guidelines, to commence with the date summons is served. The level of current periodic support payments shall not be reduced because of payments set for the period prior to the date of entry of the support order.

(b) In an action brought within 2 years after a child's birth, the judgment or order may direct either parent to pay the reasonable expenses incurred by either parent or the Department of Healthcare and Family Services related to the mother's pregnancy and the delivery of the child.

(c) In the absence of an explicit order or judgment for the allocation of parental responsibilities, to the extent the court has authority under the Uniform Child-Custody Jurisdiction and Enforcement Act or any other appropriate State law, the establishment of a child support obligation or the allocation of parenting time to one parent shall be construed as an order or judgment allocating all parental responsibilities to the other parent. If the parentage order or judgment contains no such provisions, all parental responsibilities shall be presumed to be allocated to the mother; however, the presumption shall not apply if the child has resided primarily with the other parent for at least 6 months prior to the date that the mother seeks to enforce the order or judgment of parentage.

(c-5) Notwithstanding the limitations regarding the establishment of custody under the Uniform Interstate Family Support Act, that Act is not exclusive, and custody/allocation of parental responsibilities may be determined concurrently under other appropriate State laws, where this determination may be validly made.

(d) The court, if necessary to protect and promote the best interests of the child, may set aside a portion of the separately held estates of the parties in a separate fund or trust for the support, education, physical and mental health, and general welfare of a minor or mentally or physically disabled child of the parties.

(e) The court may order child support payments to be made for a period prior to the commencement of the action. In determining whether and to what extent the payments shall be made for the prior period, the court shall consider all relevant facts, including but not limited to:

(1) The factors for determining the amount of support specified in the Illinois Marriage and Dissolution of Marriage Act.

(2) The prior knowledge of the person obligated to pay support of the fact and circumstances of the child's birth.

(3) The father's prior willingness or refusal to help raise or support the child.

(4) The extent to which the mother or the public agency bringing the action previously informed the person obligated to pay support of the child's needs or attempted to seek or require the help of the person obligated to pay support in raising or supporting the child.

(5) The reasons the mother or the public agency did not file the action earlier.

(6) The extent to which the person obligated to pay support would be prejudiced by the delay in bringing the action.

For purposes of determining the amount of child support to be paid for the period before the date the order for current child support is entered, there is a rebuttable presumption that the net income of the person obligated to pay support for the prior period was the same as the net income of the person obligated to pay support at the time the order for current child support is entered.

If (i) the person obligated to pay support was properly served with a request for discovery of financial information relating to the ability to provide child support of the person obligated to pay support; (ii) the person obligated to pay support failed to comply with the request, despite having been ordered to do so by the court; and (iii) the person obligated to pay support is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the ability to provide child support of the person obligated to pay support that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further foundation for its admission.

(f) A new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each judgment to be in the amount of each payment or installment of support and each judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each judgment shall have the full force, effect, and attributes of any other judgment of this State, including the ability to be enforced. A judgment under this Section is subject to modification or termination only in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act. Notwithstanding any State or local law to the contrary, a lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue support owed by the noncustodial parent.

(g) If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued under the Vital Records Act.

(h) On the request of both parents, the court shall order a change in the child's name.

(i) After hearing evidence, the court may stay payment of support during the period of the father's minority or period of disability.

(j) If, upon a showing of proper service, the father fails to appear in court or otherwise appear as provided by law, the court may proceed to hear the cause upon testimony of the mother or other parties taken in open court and shall enter a judgment by default. The court may reserve any order as to the amount of child support until the father has received notice, by regular mail, of a hearing on the matter.

(k) An order for support, when entered or modified, shall include a provision requiring the non-custodial parent to notify the court and, in cases in which a party is receiving child support enforcement services under Article X of the Illinois Public Aid Code, the Department of Healthcare and Family Services, within 7 days: (i) of the name and address of any new employer of the non-custodial parent; (ii) whether the non-custodial parent has access to health insurance coverage through the employer or other group coverage and, if so, of the policy name and number and the names of adults and initials of minors covered under the policy; and (iii) of any new residential or mailing address or telephone number of the non-custodial parent. In a subsequent action to enforce a support order, upon a sufficient showing that a diligent effort has been made to ascertain the location of the non-custodial parent, service of process or provision of notice necessary in the case may be made at the last known address of the non-custodial parent in any manner expressly provided by this Act or the Code of Civil Procedure, and shall be sufficient for purposes of due process.

(l) An order for support shall include a date on which the current support obligation terminates. The termination date shall be no earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the child's high school graduation will occur or the date on which the child will attain the age of 19. The order for support shall state that the termination date does not apply to any arrearage that may remain unpaid on that date. Nothing in this subsection shall be construed to prevent the court from modifying the order or terminating the order in the event the child is otherwise emancipated.

(m) If there is an unpaid arrearage or delinquency (as those terms are defined in the Income Withholding for Support Act) equal to at least one month's support obligation on the termination date stated in the order for support or, if there is no termination date stated in the order, on the date the child attains the age of majority or is otherwise emancipated, the periodic amount required to be paid for current support of that child immediately prior to that date shall automatically continue to be an obligation, not as current support but as periodic payment toward satisfaction of the unpaid arrearage or delinquency. The periodic payment shall be in addition to any periodic payment previously required for satisfaction of the arrearage or delinquency. The total periodic amount to be paid toward satisfaction of the arrearage or delinquency may be enforced and collected by any method provided by law for enforcement and collection of child support, including but not limited to income withholding under the Income Withholding for Support Act. Each order for support entered or modified must contain a statement notifying the parties of the requirements of this subsection. Failure to include the statement in the order for support does not affect the validity of the order or the operation of the provisions of this subsection with regard to the order. This subsection shall not be construed to prevent or affect the establishment or modification of an order for support of a minor child or the establishment or modification of an order for support of a non-minor child or educational expenses under Section 513 of the Illinois Marriage and Dissolution of Marriage Act.

(n) An order entered under this Section shall include a provision requiring the obligor to report to the obligee and to the clerk of court within 7 days each time the obligor obtains new employment, and each time the obligor's employment is terminated for any reason. The report shall be in writing and shall, in the case of new employment, include the name and address of the new employer. Failure to report new employment or the termination of current employment, if coupled with nonpayment of support for a period in excess of 60 days, is indirect criminal contempt. For an obligor arrested for failure to report new employment, bond shall be set in the amount of the child support that should have been paid during the period of unreported employment. An order entered under this Section shall also include a provision requiring the obligor and obligee parents to advise each other of a change in residence within 5 days of the change except when the court finds that the physical, mental, or emotional health of a party or that of a minor child, or both, would be seriously endangered by disclosure of the party's address.

(Source: P.A. 99-85, eff. 1-1-16; 99-769, eff. 1-1-17.)

(750 ILCS 46/906 new)

Sec. 906. Other actions and remedies for support. The procedures, actions, and remedies provided in this Act shall in no way be exclusive, but shall be available in addition to other actions and remedies of support, including, but not limited to, the remedies provided in: (a) the Illinois Marriage and Dissolution of Marriage Act; (b) the Non-Support Punishment Act; (c) the Illinois Public Aid Code; (d) the Uniform Child-Custody Jurisdiction and Enforcement Act; (e) the Uniform Interstate Family Support Act; and (f) the common law.

This Act does not create, enlarge, abrogate, or diminish parental rights or duties under other laws of this State, including the common law.

(750 ILCS 46/907 new)

Sec. 907. Actions and remedies for support; other laws. Notwithstanding any other State or local law to the contrary, actions and remedies under this Act, the Uniform Interstate Family Support Act, or other State laws shall be cumulative and used in conjunction with one another, as appropriate. Actions and remedies under the Uniform Interstate Family Support Act shall not require a custody or visitation determination as a prerequisite to a determination of a support obligation. If a custody or visitation determination is not permitted under the Uniform Interstate Family Support Act, the determination may be made under another appropriate State law if the court has authority to make the decision under the appropriate law.

Section 99. Effective date. This Act takes effect upon becoming law.