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| [ House Amendment 001 ] |
91_HB0421enr HB0421 Enrolled LRB9101149SMdvA 1 AN ACT to amend the Illinois Marriage and Dissolution of 2 Marriage Act by changing Section 505. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Illinois Marriage and Dissolution of 6 Marriage Act is amended by changing Section 505 as follows: 7 (750 ILCS 5/505) (from Ch. 40, par. 505) 8 Sec. 505. Child support; contempt; penalties. 9 (a) In a proceeding for dissolution of marriage, legal 10 separation, declaration of invalidity of marriage, a 11 proceeding for child support following dissolution of the 12 marriage by a court which lacked personal jurisdiction over 13 the absent spouse, a proceeding for modification of a 14 previous order for child support under Section 510 of this 15 Act, or any proceeding authorized under Section 501 or 601 of 16 this Act, the court may order either or both parents owing a 17 duty of support to a child of the marriage to pay an amount 18 reasonable and necessary for his support, without regard to 19 marital misconduct. The duty of support owed to a minor 20 child includes the obligation to provide for the reasonable 21 and necessary physical, mental and emotional health needs of 22 the child. 23 (1) The Court shall determine the minimum amount of 24 support by using the following guidelines: 25 Number of Children Percent of Supporting Party's 26 Net Income 27 1 20% 28 2 25% 29 3 32% 30 4 40% 31 5 45% HB0421 Enrolled -2- LRB9101149SMdvA 1 6 or more 50% 2 (2) The above guidelines shall be applied in each 3 case unless the court makes a finding that application of 4 the guidelines would be inappropriate, after considering 5 the best interests of the child in light of evidence 6 including but not limited to one or more of the following 7 relevant factors: 8 (a) the financial resources and needs of the 9 child; 10 (b) the financial resources and needs of the 11 custodial parent; 12 (c) the standard of living the child would 13 have enjoyed had the marriage not been dissolved; 14 (d) the physical and emotional condition of 15 the child, and his educational needs; and 16 (e) the financial resources and needs of the 17 non-custodial parent. 18 If the court deviates from the guidelines, the 19 court's finding shall state the amount of support that 20 would have been required under the guidelines, if 21 determinable. The court shall include the reason or 22 reasons for the variance from the guidelines. 23 (3) "Net income" is defined as the total of all 24 income from all sources, minus the following deductions: 25 (a) Federal income tax (properly calculated 26 withholding or estimated payments); 27 (b) State income tax (properly calculated 28 withholding or estimated payments); 29 (c) Social Security (FICA payments); 30 (d) Mandatory retirement contributions 31 required by law or as a condition of employment; 32 (e) Union dues; 33 (f) Dependent and individual 34 health/hospitalization insurance premiums; HB0421 Enrolled -3- LRB9101149SMdvA 1 (g) Prior obligations of support or 2 maintenance actually paid pursuant to a court order; 3 (h) Expenditures for repayment of debts that 4 represent reasonable and necessary expenses for the 5 production of income, medical expenditures necessary 6 to preserve life or health, reasonable expenditures 7 for the benefit of the child and the other parent, 8 exclusive of gifts. The court shall reduce net 9 income in determining the minimum amount of support 10 to be ordered only for the period that such payments 11 are due and shall enter an order containing 12 provisions for its self-executing modification upon 13 termination of such payment period. 14 (4) In cases where the court order provides for 15 health/hospitalization insurance coverage pursuant to 16 Section 505.2 of this Act, the premiums for that 17 insurance, or that portion of the premiums for which the 18 supporting party is responsible in the case of insurance 19 provided through an employer's health insurance plan 20 where the employer pays a portion of the premiums, shall 21 be subtracted from net income in determining the minimum 22 amount of support to be ordered. 23 (4.5) In a proceeding for child support following 24 dissolution of the marriage by a court that lacked 25 personal jurisdiction over the absent spouse, and in 26 which the court is requiring payment of support for the 27 period before the date an order for current support is 28 entered, there is a rebuttable presumption that the 29 supporting party's net income for the prior period was 30 the same as his or her net income at the time the order 31 for current support is entered. 32 (5) If the net income cannot be determined because 33 of default or any other reason, the court shall order 34 support in an amount considered reasonable in the HB0421 Enrolled -4- LRB9101149SMdvA 1 particular case. The final order, to the extent possible 2 in each case,in all casesshall state the support level 3 in dollar amounts. However, if the court finds that the 4 child support amount cannot be expressed exclusively as a 5 dollar amount because all or a portion of the payor's net 6 income is uncertain as to source, time of payment, or 7 amount, the court may order a percentage amount of 8 support either in addition to or in lieu of a dollar 9 amount and enter such other orders as may be necessary to 10 collect the applicable support as determined under this 11 Act on a timely basis. 12 (b) Failure of either parent to comply with an order to 13 pay support shall be punishable as in other cases of 14 contempt. In addition to other penalties provided by law the 15 Court may, after finding the parent guilty of contempt, order 16 that the parent be: 17 (1) placed on probation with such conditions of 18 probation as the Court deems advisable; 19 (2) sentenced to periodic imprisonment for a period 20 not to exceed 6 months; provided, however, that the Court 21 may permit the parent to be released for periods of time 22 during the day or night to: 23 (A) work; or 24 (B) conduct a business or other self-employed 25 occupation. 26 The Court may further order any part or all of the 27 earnings of a parent during a sentence of periodic 28 imprisonment paid to the Clerk of the Circuit Court or to the 29 parent having custody or to the guardian having custody of 30 the minor children of the sentenced parent for the support of 31 said minor children until further order of the Court. 32 If there is a unity of interest and ownership sufficient 33 to render no financial separation between a non-custodial 34 parent and another person or persons or business entity, the HB0421 Enrolled -5- LRB9101149SMdvA 1 court may pierce the ownership veil of the person, persons, 2 or business entity to discover assets of the non-custodial 3 parent held in the name of that person, those persons, or 4 that business entity. The following circumstances are 5 sufficient to authorize a court to order discovery of the 6 assets of a person, persons, or business entity and to compel 7 the application of any discovered assets toward payment on 8 the judgment for support: 9 (1) the non-custodial parent and the person, 10 persons, or business entity maintain records together. 11 (2) the non-custodial parent and the person, 12 persons, or business entity fail to maintain an arms 13 length relationship between themselves with regard to any 14 assets. 15 (3) the non-custodial parent transfers assets to 16 the person, persons, or business entity with the intent 17 to perpetrate a fraud on the custodial parent. 18 With respect to assets which are real property, no order 19 entered under this paragraph shall affect the rights of bona 20 fide purchasers, mortgagees, judgment creditors, or other 21 lien holders who acquire their interests in the property 22 prior to the time a notice of lis pendens pursuant to the 23 Code of Civil Procedure or a copy of the order is placed of 24 record in the office of the recorder of deeds for the county 25 in which the real property is located. 26 The court may also order in cases where the parent is 90 27 days or more delinquent in payment of support or has been 28 adjudicated in arrears in an amount equal to 90 days 29 obligation or more, that the parent's Illinois driving 30 privileges be suspended until the court determines that the 31 parent is in compliance with the order of support. The court 32 may also order that the parent be issued a family financial 33 responsibility driving permit that would allow limited 34 driving privileges for employment and medical purposes in HB0421 Enrolled -6- LRB9101149SMdvA 1 accordance with Section 7-702.1 of the Illinois Vehicle Code. 2 The clerk of the circuit court shall certify the order 3 suspending the driving privileges of the parent or granting 4 the issuance of a family financial responsibility driving 5 permit to the Secretary of State on forms prescribed by the 6 Secretary. Upon receipt of the authenticated documents, the 7 Secretary of State shall suspend the parent's driving 8 privileges until further order of the court and shall, if 9 ordered by the court, subject to the provisions of Section 10 7-702.1 of the Illinois Vehicle Code, issue a family 11 financial responsibility driving permit to the parent. 12 In addition to the penalties or punishment that may be 13 imposed under this Section, any person whose conduct 14 constitutes a violation of Section 1 of the Non-Support of 15 Spouse and Children Act may be prosecuted under that Section, 16 and a person convicted under that Section may be sentenced in 17 accordance with that Section. The sentence may include but 18 need not be limited to a requirement that the person perform 19 community service under subsection (b) of that Section or 20 participate in a work alternative program under subsection 21 (c) of that Section. A person may not be required to 22 participate in a work alternative program under subsection 23 (c) of that Section if the person is currently participating 24 in a work program pursuant to Section 505.1 of this Act. 25 (c) A one-time charge of 20% is imposable upon the 26 amount of past-due child support owed on July 1, 1988 which 27 has accrued under a support order entered by the court. The 28 charge shall be imposed in accordance with the provisions of 29 Section 10-21 of the Illinois Public Aid Code and shall be 30 enforced by the court upon petition. 31 (d) Any new or existing support order entered by the 32 court under this Section shall be deemed to be a series of 33 judgments against the person obligated to pay support 34 thereunder, each such judgment to be in the amount of each HB0421 Enrolled -7- LRB9101149SMdvA 1 payment or installment of support and each such judgment to 2 be deemed entered as of the date the corresponding payment or 3 installment becomes due under the terms of the support order. 4 Each such judgment shall have the full force, effect and 5 attributes of any other judgment of this State, including the 6 ability to be enforced. A lien arises by operation of law 7 against the real and personal property of the noncustodial 8 parent for each installment of overdue support owed by the 9 noncustodial parent. 10 (e) When child support is to be paid through the clerk 11 of the court in a county of 1,000,000 inhabitants or less, 12 the order shall direct the obligor to pay to the clerk, in 13 addition to the child support payments, all fees imposed by 14 the county board under paragraph (3) of subsection (u) of 15 Section 27.1 of the Clerks of Courts Act. Unless paid in 16 cash or pursuant to an order for withholding, the payment of 17 the fee shall be by a separate instrument from the support 18 payment and shall be made to the order of the Clerk. 19 (f) All orders for support, when entered or modified, 20 shall include a provision requiring the obligor to notify the 21 court and, in cases in which a party is receiving child and 22 spouse services under Article X of the Illinois Public Aid 23 Code, the Illinois Department of Public Aid, within 7 days, 24 (i) of the name and address of any new employer of the 25 obligor, (ii) whether the obligor has access to health 26 insurance coverage through the employer or other group 27 coverage and, if so, the policy name and number and the names 28 of persons covered under the policy, and (iii) of any new 29 residential or mailing address or telephone number of the 30 non-custodial parent. In any subsequent action to enforce a 31 support order, upon a sufficient showing that a diligent 32 effort has been made to ascertain the location of the 33 non-custodial parent, service of process or provision of 34 notice necessary in the case may be made at the last known HB0421 Enrolled -8- LRB9101149SMdvA 1 address of the non-custodial parent in any manner expressly 2 provided by the Code of Civil Procedure or this Act, which 3 service shall be sufficient for purposes of due process. 4 (g) An order for support shall include a date on which 5 the current support obligation terminates. The termination 6 date shall be no earlier than the date on which the child 7 covered by the order will attain the age of majority or is 8 otherwise emancipated. The order for support shall state that 9 the termination date does not apply to any arrearage that may 10 remain unpaid on that date. Nothing in this subsection shall 11 be construed to prevent the court from modifying the order. 12 (h) An order entered under this Section shall include a 13 provision requiring the obligor to report to the obligee and 14 to the clerk of court within 10 days each time the obligor 15 obtains new employment, and each time the obligor's 16 employment is terminated for any reason. The report shall be 17 in writing and shall, in the case of new employment, include 18 the name and address of the new employer. Failure to report 19 new employment or the termination of current employment, if 20 coupled with nonpayment of support for a period in excess of 21 60 days, is indirect criminal contempt. For any obligor 22 arrested for failure to report new employment bond shall be 23 set in the amount of the child support that should have been 24 paid during the period of unreported employment. An order 25 entered under this Section shall also include a provision 26 requiring the obligor and obligee parents to advise each 27 other of a change in residence within 5 days of the change 28 except when the court finds that the physical, mental, or 29 emotional health of a party or that of a minor child, or 30 both, would be seriously endangered by disclosure of the 31 party's address. 32 (Source: P.A. 89-88, eff. 6-30-95; 89-92, eff. 7-1-96; 33 89-626, eff. 8-9-96; 90-18, eff. 7-1-97; 90-476, eff. 1-1-98; 34 90-539, eff. 6-1-98; 90-655, eff. 7-30-98; 90-733, eff. HB0421 Enrolled -9- LRB9101149SMdvA 1 8-11-98.)