[ Search ] [ Legislation ]
[ Home ] [ Back ] [ Bottom ]
| [ Introduced ] | [ Enrolled ] | [ House Amendment 001 ] |
91_HB1774eng HB1774 Engrossed LRB9104124DJcd 1 AN ACT to amend the Illinois Marriage and Dissolution of 2 Marriage Act by changing Sections 505 and 713. 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 Sections 505 and 713 as 7 follows: 8 (750 ILCS 5/505) (from Ch. 40, par. 505) 9 Sec. 505. Child support; contempt; penalties. 10 (a) In a proceeding for dissolution of marriage, legal 11 separation, declaration of invalidity of marriage, a 12 proceeding for child support following dissolution of the 13 marriage by a court which lacked personal jurisdiction over 14 the absent spouse, a proceeding for modification of a 15 previous order for child support under Section 510 of this 16 Act, or any proceeding authorized under Section 501 or 601 of 17 this Act, the court may order either or both parents owing a 18 duty of support to a child of the marriage to pay an amount 19 reasonable and necessary for his support, without regard to 20 marital misconduct. The duty of support owed to a minor 21 child includes the obligation to provide for the reasonable 22 and necessary physical, mental and emotional health needs of 23 the child. 24 (1) The Court shall determine the minimum amount of 25 support by using the following guidelines: 26 Number of Children Percent of Supporting Party's 27 Net Income 28 1 20% 29 2 25% 30 3 32% 31 4 40% HB1774 Engrossed -2- LRB9104124DJcd 1 5 45% 2 6 or more 50% 3 (2) The above guidelines shall be applied in each 4 case unless the court makes a finding that application of 5 the guidelines would be inappropriate, after considering 6 the best interests of the child in light of evidence 7 including but not limited to one or more of the following 8 relevant factors: 9 (a) the financial resources and needs of the 10 child; 11 (b) the financial resources and needs of the 12 custodial parent; 13 (c) the standard of living the child would 14 have enjoyed had the marriage not been dissolved; 15 (d) the physical and emotional condition of 16 the child, and his educational needs; and 17 (e) the financial resources and needs of the 18 non-custodial parent. 19 If the court deviates from the guidelines, the 20 court's finding shall state the amount of support that 21 would have been required under the guidelines, if 22 determinable. The court shall include the reason or 23 reasons for the variance from the guidelines. 24 (3) "Net income" is defined as the total of all 25 income from all sources, minus the following deductions: 26 (a) Federal income tax (properly calculated 27 withholding or estimated payments); 28 (b) State income tax (properly calculated 29 withholding or estimated payments); 30 (c) Social Security (FICA payments); 31 (d) Mandatory retirement contributions 32 required by law or as a condition of employment; 33 (e) Union dues; 34 (f) Dependent and individual HB1774 Engrossed -3- LRB9104124DJcd 1 health/hospitalization insurance premiums; 2 (g) Prior obligations of support or 3 maintenance actually paid pursuant to a court order; 4 (h) Expenditures for repayment of debts that 5 represent reasonable and necessary expenses for the 6 production of income, medical expenditures necessary 7 to preserve life or health, reasonable expenditures 8 for the benefit of the child and the other parent, 9 exclusive of gifts. The court shall reduce net 10 income in determining the minimum amount of support 11 to be ordered only for the period that such payments 12 are due and shall enter an order containing 13 provisions for its self-executing modification upon 14 termination of such payment period. 15 (4) In cases where the court order provides for 16 health/hospitalization insurance coverage pursuant to 17 Section 505.2 of this Act, the premiums for that 18 insurance, or that portion of the premiums for which the 19 supporting party is responsible in the case of insurance 20 provided through an employer's health insurance plan 21 where the employer pays a portion of the premiums, shall 22 be subtracted from net income in determining the minimum 23 amount of support to be ordered. 24 (4.5) In a proceeding for child support following 25 dissolution of the marriage by a court that lacked 26 personal jurisdiction over the absent spouse, and in 27 which the court is requiring payment of support for the 28 period before the date an order for current support is 29 entered, there is a rebuttable presumption that the 30 supporting party's net income for the prior period was 31 the same as his or her net income at the time the order 32 for current support is entered. 33 (5) If the net income cannot be determined because 34 of default or any other reason, the court shall order HB1774 Engrossed -4- LRB9104124DJcd 1 support in an amount considered reasonable in the 2 particular case. The final order in all cases shall 3 state the support level in dollar amounts. 4 (a-5) In an action to enforce an order for support based 5 on the respondent's failure to make support payments as 6 required by the order, notice of proceedings to hold the 7 respondent in contempt for that failure may be served on the 8 respondent by personal service or by regular mail addressed 9 to the respondent's last known address. The respondent's 10 last known address may be determined from records of the 11 clerk of the court, from the Federal Case Registry of Child 12 Support Orders, or by any other reasonable means. 13 (b) Failure of either parent to comply with an order to 14 pay support shall be punishable as in other cases of 15 contempt. In addition to other penalties provided by law the 16 Court may, after finding the parent guilty of contempt, order 17 that the parent be: 18 (1) placed on probation with such conditions of 19 probation as the Court deems advisable; 20 (2) sentenced to periodic imprisonment for a period 21 not to exceed 6 months; provided, however, that the Court 22 may permit the parent to be released for periods of time 23 during the day or night to: 24 (A) work; or 25 (B) conduct a business or other self-employed 26 occupation. 27 The Court may further order any part or all of the 28 earnings of a parent during a sentence of periodic 29 imprisonment paid to the Clerk of the Circuit Court or to the 30 parent having custody or to the guardian having custody of 31 the minor children of the sentenced parent for the support of 32 said minor children until further order of the Court. 33 If there is a unity of interest and ownership sufficient 34 to render no financial separation between a non-custodial HB1774 Engrossed -5- LRB9104124DJcd 1 parent and another person or persons or business entity, the 2 court may pierce the ownership veil of the person, persons, 3 or business entity to discover assets of the non-custodial 4 parent held in the name of that person, those persons, or 5 that business entity. The following circumstances are 6 sufficient to authorize a court to order discovery of the 7 assets of a person, persons, or business entity and to compel 8 the application of any discovered assets toward payment on 9 the judgment for support: 10 (1) the non-custodial parent and the person, 11 persons, or business entity maintain records together. 12 (2) the non-custodial parent and the person, 13 persons, or business entity fail to maintain an arms 14 length relationship between themselves with regard to any 15 assets. 16 (3) the non-custodial parent transfers assets to 17 the person, persons, or business entity with the intent 18 to perpetrate a fraud on the custodial parent. 19 With respect to assets which are real property, no order 20 entered under this paragraph shall affect the rights of bona 21 fide purchasers, mortgagees, judgment creditors, or other 22 lien holders who acquire their interests in the property 23 prior to the time a notice of lis pendens pursuant to the 24 Code of Civil Procedure or a copy of the order is placed of 25 record in the office of the recorder of deeds for the county 26 in which the real property is located. 27 The court may also order in cases where the parent is 90 28 days or more delinquent in payment of support or has been 29 adjudicated in arrears in an amount equal to 90 days 30 obligation or more, that the parent's Illinois driving 31 privileges be suspended until the court determines that the 32 parent is in compliance with the order of support. The court 33 may also order that the parent be issued a family financial 34 responsibility driving permit that would allow limited HB1774 Engrossed -6- LRB9104124DJcd 1 driving privileges for employment and medical purposes in 2 accordance with Section 7-702.1 of the Illinois Vehicle Code. 3 The clerk of the circuit court shall certify the order 4 suspending the driving privileges of the parent or granting 5 the issuance of a family financial responsibility driving 6 permit to the Secretary of State on forms prescribed by the 7 Secretary. Upon receipt of the authenticated documents, the 8 Secretary of State shall suspend the parent's driving 9 privileges until further order of the court and shall, if 10 ordered by the court, subject to the provisions of Section 11 7-702.1 of the Illinois Vehicle Code, issue a family 12 financial responsibility driving permit to the parent. 13 In addition to the penalties or punishment that may be 14 imposed under this Section, any person whose conduct 15 constitutes a violation of Section 1 of the Non-Support of 16 Spouse and Children Act may be prosecuted under that Section, 17 and a person convicted under that Section may be sentenced in 18 accordance with that Section. The sentence may include but 19 need not be limited to a requirement that the person perform 20 community service under subsection (b) of that Section or 21 participate in a work alternative program under subsection 22 (c) of that Section. A person may not be required to 23 participate in a work alternative program under subsection 24 (c) of that Section if the person is currently participating 25 in a work program pursuant to Section 505.1 of this Act. 26 (c) A one-time charge of 20% is imposable upon the 27 amount of past-due child support owed on July 1, 1988 which 28 has accrued under a support order entered by the court. The 29 charge shall be imposed in accordance with the provisions of 30 Section 10-21 of the Illinois Public Aid Code and shall be 31 enforced by the court upon petition. 32 (d) Any new or existing support order entered by the 33 court under this Section shall be deemed to be a series of 34 judgments against the person obligated to pay support HB1774 Engrossed -7- LRB9104124DJcd 1 thereunder, each such judgment to be in the amount of each 2 payment or installment of support and each such judgment to 3 be deemed entered as of the date the corresponding payment or 4 installment becomes due under the terms of the support order. 5 Each such judgment shall have the full force, effect and 6 attributes of any other judgment of this State, including the 7 ability to be enforced. A lien arises by operation of law 8 against the real and personal property of the noncustodial 9 parent for each installment of overdue support owed by the 10 noncustodial parent. 11 (e) When child support is to be paid through the clerk 12 of the court in a county of 1,000,000 inhabitants or less, 13 the order shall direct the obligor to pay to the clerk, in 14 addition to the child support payments, all fees imposed by 15 the county board under paragraph (3) of subsection (u) of 16 Section 27.1 of the Clerks of Courts Act. Unless paid in 17 cash or pursuant to an order for withholding, the payment of 18 the fee shall be by a separate instrument from the support 19 payment and shall be made to the order of the Clerk. 20 (f) All orders for support, when entered or modified, 21 shall include a provision requiring the obligor to notify the 22 court and, in cases in which a party is receiving child and 23 spouse services under Article X of the Illinois Public Aid 24 Code, the Illinois Department of Public Aid, within 7 days, 25 (i) of the name and address of any new employer of the 26 obligor, (ii) whether the obligor has access to health 27 insurance coverage through the employer or other group 28 coverage and, if so, the policy name and number and the names 29 of persons covered under the policy, and (iii) of any new 30 residential or mailing address or telephone number of the 31 non-custodial parent. In any subsequent action to enforce a 32 support order, upon a sufficient showing that a diligent 33 effort has been made to ascertain the location of the 34 non-custodial parent, service of process or provision of HB1774 Engrossed -8- LRB9104124DJcd 1 notice necessary in the case may be made at the last known 2 address of the non-custodial parent in any manner expressly 3 provided by the Code of Civil Procedure or this Act, which 4 service shall be sufficient for purposes of due process. 5 (g) An order for support shall include a date on which 6 the current support obligation terminates. The termination 7 date shall be no earlier than the date on which the child 8 covered by the order will attain the age of majority or is 9 otherwise emancipated. The order for support shall state that 10 the termination date does not apply to any arrearage that may 11 remain unpaid on that date. Nothing in this subsection shall 12 be construed to prevent the court from modifying the order. 13 (h) An order entered under this Section shall include a 14 provision requiring the obligor to report to the obligee and 15 to the clerk of court within 10 days each time the obligor 16 obtains new employment, and each time the obligor's 17 employment is terminated for any reason. The report shall be 18 in writing and shall, in the case of new employment, include 19 the name and address of the new employer. Failure to report 20 new employment or the termination of current employment, if 21 coupled with nonpayment of support for a period in excess of 22 60 days, is indirect criminal contempt. For any obligor 23 arrested for failure to report new employment bond shall be 24 set in the amount of the child support that should have been 25 paid during the period of unreported employment. An order 26 entered under this Section shall also include a provision 27 requiring the obligor and obligee parents to advise each 28 other of a change in residence within 5 days of the change 29 except when the court finds that the physical, mental, or 30 emotional health of a party or that of a minor child, or 31 both, would be seriously endangered by disclosure of the 32 party's address. 33 (Source: P.A. 89-88, eff. 6-30-95; 89-92, eff. 7-1-96; 34 89-626, eff. 8-9-96; 90-18, eff. 7-1-97; 90-476, eff. 1-1-98; HB1774 Engrossed -9- LRB9104124DJcd 1 90-539, eff. 6-1-98; 90-655, eff. 7-30-98; 90-733, eff. 2 8-11-98.) 3 (750 ILCS 5/713) (from Ch. 40, par. 713) 4 Sec. 713. Attachment of the Body. As used in this 5 Section, "obligor" has the same meaning ascribed to such term 6 in the Income Withholding for Support Act. 7 (a) In any proceeding to enforce an order for support, 8 where the obligor has failed to appear in court pursuant to 9 order of court and after due notice thereof, the court may 10 enter an order for the attachment of the body of the obligor. 11 Notices under this Section shall be served upon the obligor 12 by any means authorized under subsection (a-5) of Section 505 13either (1) by prepaid certified mail with delivery14restricted to the obligor, or (2) by personal service on the15obligor. The attachment order shall fix an amount of escrow 16 which is equal to a minimum of 20% of the total child support 17 arrearage alleged by the obligee in sworn testimony to be due 18 and owing. The attachment order shall direct the Sheriff of 19 any county in Illinois to take the obligor into custody and 20 shall set the number of days following release from custody 21 for a hearing to be held at which the obligor must appear, if 22 he is released under subsection (c) of this Section. 23 (b) If the obligor is taken into custody, the Sheriff 24 shall take the obligor before the court which entered the 25 attachment order. However, the Sheriff may release the 26 person after he or she has deposited the amount of escrow 27 ordered by the court pursuant to local procedures for the 28 posting of bond. The Sheriff shall advise the obligor of the 29 hearing date at which the obligor is required to appear. 30 (c) Any escrow deposited pursuant to this Section shall 31 be transmitted to the Clerk of the Circuit Court for the 32 county in which the order for attachment of the body of the 33 obligor was entered. Any Clerk who receives money deposited HB1774 Engrossed -10- LRB9104124DJcd 1 into escrow pursuant to this Section shall notify the 2 obligee, public office or legal counsel whose name appears on 3 the attachment order of the court date at which the obligor 4 is required to appear and the amount deposited into escrow. 5 The Clerk shall disburse such money to the obligee only under 6 an order from the court that entered the attachment order 7 pursuant to this Section. 8 (d) Whenever an obligor is taken before the court by the 9 Sheriff, or appears in court after the court has ordered the 10 attachment of his body, the court shall: 11 (1) hold a hearing on the complaint or petition 12 that gave rise to the attachment order. For purposes of 13 determining arrearages that are due and owing by the 14 obligor, the court shall accept the previous sworn 15 testimony of the obligee as true and the appearance of 16 the obligee shall not be required. The court shall 17 require sworn testimony of the obligor as to his or her 18 Social Security number, income, employment, bank 19 accounts, property and any other assets. If there is a 20 dispute as to the total amount of arrearages, the court 21 shall proceed as in any other case as to the undisputed 22 amounts; and 23 (2) order the Clerk of the Circuit Court to 24 disburse to the obligee or public office money held in 25 escrow pursuant to this Section if the court finds that 26 the amount of arrearages exceeds the amount of the 27 escrow. Amounts received by the obligee or public office 28 shall be deducted from the amount of the arrearages. 29 (e) If the obligor fails to appear in court after being 30 notified of the court date by the Sheriff upon release from 31 custody, the court shall order any monies deposited into 32 escrow to be immediately released to the obligee or public 33 office and shall proceed under subsection (a) of this Section 34 by entering another order for the attachment of the body of HB1774 Engrossed -11- LRB9104124DJcd 1 the obligor. 2 (f) This Section shall apply to any order for support 3 issued under the "Illinois Marriage and Dissolution of 4 Marriage Act", approved September 22, 1977, as amended; the 5 "Illinois Parentage Act of 1984", effective July 1, 1985, as 6 amended; the "Revised Uniform Reciprocal Enforcement of 7 Support Act", approved August 28, 1969, as amended; "The 8 Illinois Public Aid Code", approved April 11, 1967, as 9 amended; and the "Non-support of Spouse and Children Act", 10 approved June 8, 1953, as amended. 11 (g) Any escrow established pursuant to this Section for 12 the purpose of providing support shall not be subject to fees 13 collected by the Clerk of the Circuit Court for any other 14 escrow. 15 (Source: P.A. 90-673, eff. 1-1-99.) 16 Section 99. Effective date. This Act takes effect upon 17 becoming law.