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91_HB2219
LRB9102791RCks
1 AN ACT to create the offense of aggravated domestic
2 battery, amending named Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Criminal Code of 1961 is amended by
6 adding Section 12-3.3 as follows:
7 (720 ILCS 5/12-3.3 new)
8 Sec. 12-3.3. Aggravated domestic battery.
9 (a) A person who, in committing a domestic battery,
10 intentionally or knowingly causes great bodily harm, or
11 permanent disability or disfigurement commits aggravated
12 domestic battery.
13 (b) Sentence. Aggravated domestic battery is a Class 2
14 felony. Any order of probation or conditional discharge
15 entered following a conviction for an offense under this
16 Section must include, in addition to any other condition of
17 probation or conditional discharge, a condition that the
18 offender serve a mandatory term of imprisonment of not less
19 than 60 consecutive days. A person convicted of a second or
20 subsequent violation of this Section must be sentenced to a
21 mandatory term of imprisonment of not less than 3 years and
22 not more than 7 years or an extended term of imprisonment of
23 not less than 7 years and not more than 14 years.
24 Section 10. The Code of Criminal Procedure of 1963 is
25 amended by changing Sections 110-6.3 and 111-8 as follows:
26 (725 ILCS 5/110-6.3) (from Ch. 38, par. 110-6.3)
27 Sec. 110-6.3. Denial of bail in stalking and aggravated
28 stalking offenses.
29 (a) Upon verified petition by the State, the court shall
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1 hold a hearing to determine whether bail should be denied to
2 a defendant who is charged with stalking or aggravated
3 stalking, when it is alleged that the defendant's admission
4 to bail poses a real and present threat to the physical
5 safety of the alleged victim of the offense, and denial of
6 release on bail or personal recognizance is necessary to
7 prevent fulfillment of the threat upon which the charge is
8 based.
9 (1) A petition may be filed without prior notice to
10 the defendant at the first appearance before a judge, or
11 within 21 calendar days, except as provided in Section
12 110-6, after arrest and release of the defendant upon
13 reasonable notice to defendant; provided that while the
14 petition is pending before the court, the defendant if
15 previously released shall not be detained.
16 (2) The hearing shall be held immediately upon the
17 defendant's appearance before the court, unless for good
18 cause shown the defendant or the State seeks a
19 continuance. A continuance on motion of the defendant
20 may not exceed 5 calendar days, and the defendant may be
21 held in custody during the continuance. A continuance on
22 the motion of the State may not exceed 3 calendar days;
23 however, the defendant may be held in custody during the
24 continuance under this provision if the defendant has
25 been previously found to have violated an order of
26 protection or has been previously convicted of, or
27 granted court supervision for, any of the offenses set
28 forth in Sections 12-2, 12-3.2, 12-3.3, 12-4, 12-4.1,
29 12-7.3, 12-7.4, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of
30 the Criminal Code of 1961, against the same person as the
31 alleged victim of the stalking or aggravated stalking
32 offense.
33 (b) The court may deny bail to the defendant when, after
34 the hearing, it is determined that:
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1 (1) the proof is evident or the presumption great
2 that the defendant has committed the offense of stalking
3 or aggravated stalking; and
4 (2) the defendant poses a real and present threat
5 to the physical safety of the alleged victim of the
6 offense; and
7 (3) the denial of release on bail or personal
8 recognizance is necessary to prevent fulfillment of the
9 threat upon which the charge is based; and
10 (4) the court finds that no condition or
11 combination of conditions set forth in subsection (b) of
12 Section 110-10 of this Code, including mental health
13 treatment at a community mental health center, hospital,
14 or facility of the Department of Human Services, can
15 reasonably assure the physical safety of the alleged
16 victim of the offense.
17 (c) Conduct of the hearings.
18 (1) The hearing on the defendant's culpability and
19 threat to the alleged victim of the offense shall be
20 conducted in accordance with the following provisions:
21 (A) Information used by the court in its
22 findings or stated in or offered at the hearing may
23 be by way of proffer based upon reliable information
24 offered by the State or by defendant. Defendant has
25 the right to be represented by counsel, and if he is
26 indigent, to have counsel appointed for him.
27 Defendant shall have the opportunity to testify, to
28 present witnesses in his own behalf, and to
29 cross-examine witnesses if any are called by the
30 State. The defendant has the right to present
31 witnesses in his favor. When the ends of justice so
32 require, the court may exercise its discretion and
33 compel the appearance of a complaining witness. The
34 court shall state on the record reasons for granting
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1 a defense request to compel the presence of a
2 complaining witness. Cross-examination of a
3 complaining witness at the pretrial detention
4 hearing for the purpose of impeaching the witness'
5 credibility is insufficient reason to compel the
6 presence of the witness. In deciding whether to
7 compel the appearance of a complaining witness, the
8 court shall be considerate of the emotional and
9 physical well-being of the witness. The pretrial
10 detention hearing is not to be used for the purposes
11 of discovery, and the post arraignment rules of
12 discovery do not apply. The State shall tender to
13 the defendant, prior to the hearing, copies of
14 defendant's criminal history, if any, if available,
15 and any written or recorded statements and the
16 substance of any oral statements made by any person,
17 if relied upon by the State. The rules concerning
18 the admissibility of evidence in criminal trials do
19 not apply to the presentation and consideration of
20 information at the hearing. At the trial concerning
21 the offense for which the hearing was conducted
22 neither the finding of the court nor any transcript
23 or other record of the hearing shall be admissible
24 in the State's case in chief, but shall be
25 admissible for impeachment, or as provided in
26 Section 115-10.1 of this Code, or in a perjury
27 proceeding.
28 (B) A motion by the defendant to suppress
29 evidence or to suppress a confession shall not be
30 entertained. Evidence that proof may have been
31 obtained as the result of an unlawful search and
32 seizure or through improper interrogation is not
33 relevant to this state of the prosecution.
34 (2) The facts relied upon by the court to support a
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1 finding that:
2 (A) the defendant poses a real and present
3 threat to the physical safety of the alleged victim
4 of the offense; and
5 (B) the denial of release on bail or personal
6 recognizance is necessary to prevent fulfillment of
7 the threat upon which the charge is based;
8 shall be supported by clear and convincing evidence
9 presented by the State.
10 (d) Factors to be considered in making a determination
11 of the threat to the alleged victim of the offense. The court
12 may, in determining whether the defendant poses, at the time
13 of the hearing, a real and present threat to the physical
14 safety of the alleged victim of the offense, consider but
15 shall not be limited to evidence or testimony concerning:
16 (1) The nature and circumstances of the offense
17 charged;
18 (2) The history and characteristics of the
19 defendant including:
20 (A) Any evidence of the defendant's prior
21 criminal history indicative of violent, abusive or
22 assaultive behavior, or lack of that behavior. The
23 evidence may include testimony or documents received
24 in juvenile proceedings, criminal, quasi-criminal,
25 civil commitment, domestic relations or other
26 proceedings;
27 (B) Any evidence of the defendant's
28 psychological, psychiatric or other similar social
29 history that tends to indicate a violent, abusive,
30 or assaultive nature, or lack of any such history.
31 (3) The nature of the threat which is the basis of
32 the charge against the defendant;
33 (4) Any statements made by, or attributed to the
34 defendant, together with the circumstances surrounding
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1 them;
2 (5) The age and physical condition of any person
3 assaulted by the defendant;
4 (6) Whether the defendant is known to possess or
5 have access to any weapon or weapons;
6 (7) Whether, at the time of the current offense or
7 any other offense or arrest, the defendant was on
8 probation, parole, mandatory supervised release or other
9 release from custody pending trial, sentencing, appeal or
10 completion of sentence for an offense under federal or
11 state law;
12 (8) Any other factors, including those listed in
13 Section 110-5 of this Code, deemed by the court to have a
14 reasonable bearing upon the defendant's propensity or
15 reputation for violent, abusive or assaultive behavior,
16 or lack of that behavior.
17 (e) The court shall, in any order denying bail to a
18 person charged with stalking or aggravated stalking:
19 (1) briefly summarize the evidence of the
20 defendant's culpability and its reasons for concluding
21 that the defendant should be held without bail;
22 (2) direct that the defendant be committed to the
23 custody of the sheriff for confinement in the county jail
24 pending trial;
25 (3) direct that the defendant be given a reasonable
26 opportunity for private consultation with counsel, and
27 for communication with others of his choice by
28 visitation, mail and telephone; and
29 (4) direct that the sheriff deliver the defendant
30 as required for appearances in connection with court
31 proceedings.
32 (f) If the court enters an order for the detention of
33 the defendant under subsection (e) of this Section, the
34 defendant shall be brought to trial on the offense for which
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1 he is detained within 90 days after the date on which the
2 order for detention was entered. If the defendant is not
3 brought to trial within the 90 day period required by this
4 subsection (f), he shall not be held longer without bail. In
5 computing the 90 day period, the court shall omit any period
6 of delay resulting from a continuance granted at the request
7 of the defendant. The court shall immediately notify the
8 alleged victim of the offense that the defendant has been
9 admitted to bail under this subsection.
10 (g) Any person shall be entitled to appeal any order
11 entered under this Section denying bail to the defendant.
12 (h) The State may appeal any order entered under this
13 Section denying any motion for denial of bail.
14 (i) Nothing in this Section shall be construed as
15 modifying or limiting in any way the defendant's presumption
16 of innocence in further criminal proceedings.
17 (Source: P.A. 89-462, eff. 5-29-96; 89-507, eff. 7-1-97;
18 90-14, eff. 7-1-97.)
19 (725 ILCS 5/111-8) (from Ch. 38, par. 111-8)
20 Sec. 111-8. Orders of protection to prohibit domestic
21 violence.
22 (a) Whenever a violation of Section 9-1, 9-2, 9-3, 10-4,
23 10-5, 11-15, 11-15.1 11-20a, 12-1, 12-2, 12-3, 12-3.3, 12-4,
24 12-4.1, 12-4.3, 12-5, 12-6, 12-11, 12-13, 12-14, 12-14.1,
25 12-15 or 12-16 of the Criminal Code of 1961, as now or
26 hereafter amended, is alleged in an information, complaint or
27 indictment on file, and the alleged offender and victim are
28 family or household members, as defined in the Illinois
29 Domestic Violence Act, as now or hereafter amended, the
30 People through the respective State's Attorneys may by
31 separate petition and upon notice to the defendant, except as
32 provided in subsection (c) herein, request the court to issue
33 an order of protection.
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1 (b) In addition to any other remedies specified in
2 Section 208 of the Illinois Domestic Violence Act, as now or
3 hereafter amended, the order may direct the defendant to
4 initiate no contact with the alleged victim or victims who
5 are family or household members and to refrain from entering
6 the residence, school or place of business of the alleged
7 victim or victims.
8 (c) The court may grant emergency relief without notice
9 upon a showing of immediate and present danger of abuse to
10 the victim or minor children of the victim and may enter a
11 temporary order pending notice and full hearing on the
12 matter.
13 (Source: P.A. 89-313, eff. 1-1-96; 89-428, eff. 12-13-95;
14 89-462, eff. 5-29-96.)
15 Section 15. The Crime Victims Compensation Act is
16 amended by changing Section 2 as follows:
17 (740 ILCS 45/2) (from Ch. 70, par. 72)
18 Sec. 2. Definitions. As used in this Act, unless the
19 context otherwise requires:
20 (a) "Applicant" means any person who applies for
21 compensation under this Act or any person the Court of Claims
22 finds is entitled to compensation, including the guardian of
23 a minor or of a person under legal disability. It includes
24 any person who was a dependent of a deceased victim of a
25 crime of violence for his or her support at the time of the
26 death of that victim.
27 (b) "Court of Claims" means the Court of Claims created
28 by the Court of Claims Act.
29 (c) "Crime of violence" means and includes any offense
30 defined in Sections 9-1, 9-2, 9-3, 10-1, 10-2, 11-11,
31 11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.2, 12-3.3, 12-4,
32 12-4.1, 12-4.2, 12-4.3, 12-5, 12-13, 12-14, 12-14.1, 12-15,
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1 12-16, 12-30, 20-1 or 20-1.1 of the Criminal Code of 1961,
2 and driving under the influence of intoxicating liquor or
3 narcotic drugs as defined in Section 11-501 of the Illinois
4 Vehicle Code, if none of the said offenses occurred during a
5 civil riot, insurrection or rebellion. "Crime of violence"
6 does not include any other offense or accident involving a
7 motor vehicle except those vehicle offenses specifically
8 provided for in this paragraph. "Crime of violence" does
9 include all of the offenses specifically provided for in this
10 paragraph that occur within this State but are subject to
11 federal jurisdiction and crimes involving terrorism as
12 defined in 18 U.S.C. 2331.
13 (d) "Victim" means (1) a person killed or injured in
14 this State as a result of a crime of violence perpetrated or
15 attempted against him or her, (2) the parent of a child
16 killed or injured in this State as a result of a crime of
17 violence perpetrated or attempted against the child, (3) a
18 person killed or injured in this State while attempting to
19 assist a person against whom a crime of violence is being
20 perpetrated or attempted, if that attempt of assistance would
21 be expected of a reasonable man under the circumstances, (4)
22 a person killed or injured in this State while assisting a
23 law enforcement official apprehend a person who has
24 perpetrated a crime of violence or prevent the perpetration
25 of any such crime if that assistance was in response to the
26 express request of the law enforcement official, (5) a person
27 under the age of 18 who personally witnessed a violent crime
28 perpetrated or attempted against a relative and, solely for
29 the purpose of compensating for pecuniary loss incurred for
30 psychological treatment of a mental or emotional condition
31 caused or aggravated by the crime, any other person under the
32 age of 18 who is the brother, sister, half brother, or half
33 sister of a person killed or injured in this State as a
34 result of a crime of violence, or (6) an Illinois resident
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1 who is a victim of a "crime of violence" as defined in this
2 Act except, if the crime occurred outside this State, the
3 resident has the same rights under this Act as if the crime
4 had occurred in this State upon a showing that the state,
5 territory, country, or political subdivision of a country in
6 which the crime occurred does not have a compensation of
7 victims of crimes law for which that Illinois resident is
8 eligible.
9 (e) "Dependent" means a relative of a deceased victim
10 who was wholly or partially dependent upon the victim's
11 income at the time of his or her death and shall include the
12 child of a victim born after his or her death.
13 (f) "Relative" means a spouse, parent, grandparent,
14 stepfather, stepmother, child, grandchild, brother,
15 brother-in-law, sister, sister-in-law, half brother, half
16 sister, spouse's parent, nephew, niece, uncle or aunt.
17 (g) "Child" means an unmarried son or daughter who is
18 under 18 years of age and includes a stepchild, an adopted
19 child or an illegitimate child.
20 (h) "Pecuniary loss" means, in the case of injury,
21 appropriate medical expenses and hospital expenses including
22 expenses of medical examinations, rehabilitation, medically
23 required nursing care expenses, appropriate psychiatric care
24 or psychiatric counseling expenses, expenses for care or
25 counseling by a licensed clinical psychologist or licensed
26 clinical social worker and expenses for treatment by
27 Christian Science practitioners and nursing care appropriate
28 thereto; prosthetic appliances, eyeglasses, and hearing aids
29 necessary or damaged as a result of the crime; the purchase,
30 lease, or rental of equipment necessary to create usability
31 of and accessibility to the victim's real and personal
32 property, or the real and personal property which is used by
33 the victim, necessary as a result of the crime; replacement
34 services loss, to a maximum of $1000 per month; dependents
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1 replacement services loss, to a maximum of $1000 per month;
2 loss of tuition paid to attend grammar school or high school
3 when the victim had been enrolled as a full-time student
4 prior to the injury, or college or graduate school when the
5 victim had been enrolled as a full-time day or night student
6 prior to the injury when the victim becomes unable to
7 continue attendance at school as a result of the crime of
8 violence perpetrated against him or her; loss of earnings,
9 loss of future earnings because of disability resulting from
10 the injury, and, in addition, in the case of death, funeral
11 and burial expenses to a maximum of $5,000 and loss of
12 support of the dependents of the victim. Loss of future
13 earnings shall be reduced by any income from substitute work
14 actually performed by the victim or by income he or she would
15 have earned in available appropriate substitute work he or
16 she was capable of performing but unreasonably failed to
17 undertake. Loss of earnings, loss of future earnings and
18 loss of support shall be determined on the basis of the
19 victim's average net monthly earnings for the 6 months
20 immediately preceding the date of the injury or on $1000 per
21 month, whichever is less. If a divorced or legally separated
22 applicant is claiming loss of support for a minor child of
23 the deceased, the amount of support for each child shall be
24 based either on the amount of support the minor child
25 received pursuant to the judgment for the 6 months prior to
26 the date of the deceased victim's injury or death, or, if the
27 subject of pending litigation filed by or on behalf of the
28 divorced or legally separated applicant prior to the injury
29 or death, on the result of that litigation. Real and
30 personal property includes, but is not limited to, vehicles,
31 houses, apartments, town houses, or condominiums. Pecuniary
32 loss does not include pain and suffering or property loss or
33 damage.
34 (i) "Replacement services loss" means expenses
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1 reasonably incurred in obtaining ordinary and necessary
2 services in lieu of those the permanently injured person
3 would have performed, not for income, but for the benefit of
4 himself or herself or his or her family, if he or she had not
5 been permanently injured.
6 (j) "Dependents replacement services loss" means loss
7 reasonably incurred by dependents after a victim's death in
8 obtaining ordinary and necessary services in lieu of those
9 the victim would have performed, not for income, but for
10 their benefit, if he or she had not been fatally injured.
11 (Source: P.A. 89-313, eff. 1-1-96; 89-428, eff. 12-13-95;
12 89-462, eff. 5-29-96; 90-136, eff. 1-1-98; 90-492, eff.
13 8-17-97; 90-655, eff. 7-30-98; 90-708, eff. 8-7-98.)
14 Section 20. The Illinois Marriage and Dissolution of
15 Marriage Act is amended by changing Section 503 as follows:
16 (750 ILCS 5/503) (from Ch. 40, par. 503)
17 (Text of Section before amendment by P.A. 90-731)
18 Sec. 503. Disposition of property.
19 (a) For purposes of this Act, "marital property" means
20 all property acquired by either spouse subsequent to the
21 marriage, except the following, which is known as
22 "non-marital property":
23 (1) property acquired by gift, legacy or descent;
24 (2) property acquired in exchange for property
25 acquired before the marriage or in exchange for property
26 acquired by gift, legacy or descent;
27 (3) property acquired by a spouse after a judgment
28 of legal separation;
29 (4) property excluded by valid agreement of the
30 parties;
31 (5) any judgment or property obtained by judgment
32 awarded to a spouse from the other spouse;
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1 (6) property acquired before the marriage;
2 (7) the increase in value of property acquired by a
3 method listed in paragraphs (1) through (6) of this
4 subsection, irrespective of whether the increase results
5 from a contribution of marital property, non-marital
6 property, the personal effort of a spouse, or otherwise,
7 subject to the right of reimbursement provided in
8 subsection (c) of this Section; and
9 (8) income from property acquired by a method
10 listed in paragraphs (1) through (7) of this subsection
11 if the income is not attributable to the personal effort
12 of a spouse.
13 (b) For purposes of distribution of property pursuant to
14 this Section, all property acquired by either spouse after
15 the marriage and before a judgment of dissolution of marriage
16 or declaration of invalidity of marriage, including
17 non-marital property transferred into some form of
18 co-ownership between the spouses, is presumed to be marital
19 property, regardless of whether title is held individually or
20 by the spouses in some form of co-ownership such as joint
21 tenancy, tenancy in common, tenancy by the entirety, or
22 community property. The presumption of marital property is
23 overcome by a showing that the property was acquired by a
24 method listed in subsection (a) of this Section.
25 (c) Commingled marital and non-marital property shall be
26 treated in the following manner, unless otherwise agreed by
27 the spouses:
28 (1) When marital and non-marital property are
29 commingled by contributing one estate of property into
30 another resulting in a loss of identity of the
31 contributed property, the classification of the
32 contributed property is transmuted to the estate
33 receiving the contribution, subject to the provisions of
34 paragraph (2) of this subsection; provided that if
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1 marital and non-marital property are commingled into
2 newly acquired property resulting in a loss of identity
3 of the contributing estates, the commingled property
4 shall be deemed transmuted to marital property, subject
5 to the provisions of paragraph (2) of this subsection.
6 (2) When one estate of property makes a
7 contribution to another estate of property, or when a
8 spouse contributes personal effort to non-marital
9 property, the contributing estate shall be reimbursed
10 from the estate receiving the contribution
11 notwithstanding any transmutation; provided, that no such
12 reimbursement shall be made with respect to a
13 contribution which is not retraceable by clear and
14 convincing evidence, or was a gift, or, in the case of a
15 contribution of personal effort of a spouse to
16 non-marital property, unless the effort is significant
17 and results in substantial appreciation of the
18 non-marital property. Personal effort of a spouse shall
19 be deemed a contribution by the marital estate. The
20 court may provide for reimbursement out of the marital
21 property to be divided or by imposing a lien against the
22 non-marital property which received the contribution.
23 (d) In a proceeding for dissolution of marriage or
24 declaration of invalidity of marriage, or in a proceeding for
25 disposition of property following dissolution of marriage by
26 a court which lacked personal jurisdiction over the absent
27 spouse or lacked jurisdiction to dispose of the property, the
28 court shall assign each spouse's non-marital property to that
29 spouse. It also shall divide the marital property without
30 regard to marital misconduct in just proportions considering
31 all relevant factors, including:
32 (1) the contribution of each party to the
33 acquisition, preservation, or increase or decrease in
34 value of the marital or non-marital property, including
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1 the contribution of a spouse as a homemaker or to the
2 family unit;
3 (2) the dissipation by each party of the marital or
4 non-marital property;
5 (3) the value of the property assigned to each
6 spouse;
7 (4) the duration of the marriage;
8 (5) the relevant economic circumstances of each
9 spouse when the division of property is to become
10 effective, including the desirability of awarding the
11 family home, or the right to live therein for reasonable
12 periods, to the spouse having custody of the children;
13 (6) any obligations and rights arising from a prior
14 marriage of either party;
15 (7) any antenuptial agreement of the parties;
16 (8) the age, health, station, occupation, amount
17 and sources of income, vocational skills, employability,
18 estate, liabilities, and needs of each of the parties;
19 (9) the custodial provisions for any children;
20 (10) whether the apportionment is in lieu of or in
21 addition to maintenance;
22 (11) the reasonable opportunity of each spouse for
23 future acquisition of capital assets and income; and
24 (12) the tax consequences of the property division
25 upon the respective economic circumstances of the
26 parties.
27 (e) Each spouse has a species of common ownership in the
28 marital property which vests at the time dissolution
29 proceedings are commenced and continues only during the
30 pendency of the action. Any such interest in marital
31 property shall not encumber that property so as to restrict
32 its transfer, assignment or conveyance by the title holder
33 unless such title holder is specifically enjoined from making
34 such transfer, assignment or conveyance.
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1 (f) In a proceeding for dissolution of marriage or
2 declaration of invalidity of marriage or in a proceeding for
3 disposition of property following dissolution of marriage by
4 a court that lacked personal jurisdiction over the absent
5 spouse or lacked jurisdiction to dispose of the property, the
6 court, in determining the value of the marital and
7 non-marital property for purposes of dividing the property,
8 shall value the property as of the date of trial or some
9 other date as close to the date of trial as is practicable.
10 (g) The court if necessary to protect and promote the
11 best interests of the children may set aside a portion of the
12 jointly or separately held estates of the parties in a
13 separate fund or trust for the support, maintenance,
14 education, and general welfare of any minor, dependent, or
15 incompetent child of the parties. In making a determination
16 under this subsection, the court may consider, among other
17 things, the conviction of a party of any of the offenses set
18 forth in Section 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13, 12-14,
19 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if the
20 victim is a child of one or both of the parties, and there is
21 a need for, and cost of, care, healing and counseling for the
22 child who is the victim of the crime.
23 (h) Unless specifically directed by a reviewing court,
24 or upon good cause shown, the court shall not on remand
25 consider any increase or decrease in the value of any
26 "marital" or "non-marital" property occurring since the
27 assessment of such property at the original trial or hearing,
28 but shall use only that assessment made at the original trial
29 or hearing.
30 (i) The court may make such judgments affecting the
31 marital property as may be just and may enforce such
32 judgments by ordering a sale of marital property, with
33 proceeds therefrom to be applied as determined by the court.
34 (j) After proofs have closed in the final hearing on all
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1 other issues between the parties (or in conjunction with the
2 final hearing, if all parties so stipulate) and before
3 judgment is entered, a party's petition for contribution to
4 fees and costs incurred in the proceeding shall be heard and
5 decided, in accordance with the following provisions:
6 (1) A petition for contribution, if not filed
7 before the final hearing on other issues between the
8 parties, shall be filed no later than 30 days after the
9 closing of proofs in the final hearing or within such
10 other period as the court orders.
11 (2) Any award of contribution to one party from the
12 other party shall be based on the criteria for division
13 of marital property under this Section 503 and, if
14 maintenance has been awarded, on the criteria for an
15 award of maintenance under Section 504.
16 (3) The filing of a petition for contribution shall
17 not be deemed to constitute a waiver of the
18 attorney-client privilege between the petitioning party
19 and current or former counsel; and such a waiver shall
20 not constitute a prerequisite to a hearing for
21 contribution. If either party's presentation on
22 contribution, however, includes evidence within the scope
23 of the attorney-client privilege, the disclosure or
24 disclosures shall be narrowly construed and shall not be
25 deemed by the court to constitute a general waiver of the
26 privilege as to matters beyond the scope of the
27 presentation.
28 (4) No finding on which a contribution award is
29 based or denied shall be asserted against counsel or
30 former counsel for purposes of any hearing under
31 subsection (c) or (e) of Section 508.
32 (5) A contribution award (payable to either the
33 petitioning party or the party's counsel, or jointly, as
34 the court determines) may be in the form of either a set
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1 dollar amount or a percentage of fees and costs (or a
2 portion of fees and costs) to be subsequently agreed upon
3 by the petitioning party and counsel or, alternatively,
4 thereafter determined in a hearing pursuant to subsection
5 (c) of Section 508 or previously or thereafter determined
6 in an independent proceeding under subsection (e) of
7 Section 508.
8 (6) The changes to this Section 503 made by this
9 amendatory Act of 1996 apply to cases pending on or after
10 June 1, 1997, except as otherwise provided in Section
11 508.
12 (Source: P.A. 88-45; 89-428, eff. 12-13-95; 89-462, eff.
13 5-29-96; 89-712, eff. 6-1-97.)
14 (Text of Section after amendment by P.A. 90-731)
15 Sec. 503. Disposition of property.
16 (a) For purposes of this Act, "marital property" means
17 all property acquired by either spouse subsequent to the
18 marriage, except the following, which is known as
19 "non-marital property":
20 (1) property acquired by gift, legacy or descent;
21 (2) property acquired in exchange for property
22 acquired before the marriage or in exchange for property
23 acquired by gift, legacy or descent;
24 (3) property acquired by a spouse after a judgment
25 of legal separation;
26 (4) property excluded by valid agreement of the
27 parties;
28 (5) any judgment or property obtained by judgment
29 awarded to a spouse from the other spouse;
30 (6) property acquired before the marriage;
31 (7) the increase in value of property acquired by a
32 method listed in paragraphs (1) through (6) of this
33 subsection, irrespective of whether the increase results
34 from a contribution of marital property, non-marital
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1 property, the personal effort of a spouse, or otherwise,
2 subject to the right of reimbursement provided in
3 subsection (c) of this Section; and
4 (8) income from property acquired by a method
5 listed in paragraphs (1) through (7) of this subsection
6 if the income is not attributable to the personal effort
7 of a spouse.
8 (b)(1) For purposes of distribution of property pursuant
9 to this Section, all property acquired by either spouse after
10 the marriage and before a judgment of dissolution of marriage
11 or declaration of invalidity of marriage, including
12 non-marital property transferred into some form of
13 co-ownership between the spouses, is presumed to be marital
14 property, regardless of whether title is held individually or
15 by the spouses in some form of co-ownership such as joint
16 tenancy, tenancy in common, tenancy by the entirety, or
17 community property. The presumption of marital property is
18 overcome by a showing that the property was acquired by a
19 method listed in subsection (a) of this Section.
20 (2) For purposes of distribution of property pursuant to
21 this Section, all pension benefits (including pension
22 benefits under the Illinois Pension Code) acquired by either
23 spouse after the marriage and before a judgment of
24 dissolution of marriage or declaration of invalidity of the
25 marriage are presumed to be marital property, regardless of
26 which spouse participates in the pension plan. The
27 presumption that these pension benefits are marital property
28 is overcome by a showing that the pension benefits were
29 acquired by a method listed in subsection (a) of this
30 Section. The right to a division of pension benefits in just
31 proportions under this Section is enforceable under Section
32 1-119 of the Illinois Pension Code.
33 The value of pension benefits in a retirement system
34 subject to the Illinois Pension Code shall be determined in
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1 accordance with the valuation procedures established by the
2 retirement system.
3 The recognition of pension benefits as marital property
4 and the division of those benefits pursuant to a Qualified
5 Illinois Domestic Relations Order shall not be deemed to be a
6 diminishment, alienation, or impairment of those benefits.
7 The division of pension benefits is an allocation of property
8 in which each spouse has a species of common ownership.
9 (c) Commingled marital and non-marital property shall be
10 treated in the following manner, unless otherwise agreed by
11 the spouses:
12 (1) When marital and non-marital property are
13 commingled by contributing one estate of property into
14 another resulting in a loss of identity of the
15 contributed property, the classification of the
16 contributed property is transmuted to the estate
17 receiving the contribution, subject to the provisions of
18 paragraph (2) of this subsection; provided that if
19 marital and non-marital property are commingled into
20 newly acquired property resulting in a loss of identity
21 of the contributing estates, the commingled property
22 shall be deemed transmuted to marital property, subject
23 to the provisions of paragraph (2) of this subsection.
24 (2) When one estate of property makes a
25 contribution to another estate of property, or when a
26 spouse contributes personal effort to non-marital
27 property, the contributing estate shall be reimbursed
28 from the estate receiving the contribution
29 notwithstanding any transmutation; provided, that no such
30 reimbursement shall be made with respect to a
31 contribution which is not retraceable by clear and
32 convincing evidence, or was a gift, or, in the case of a
33 contribution of personal effort of a spouse to
34 non-marital property, unless the effort is significant
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1 and results in substantial appreciation of the
2 non-marital property. Personal effort of a spouse shall
3 be deemed a contribution by the marital estate. The
4 court may provide for reimbursement out of the marital
5 property to be divided or by imposing a lien against the
6 non-marital property which received the contribution.
7 (d) In a proceeding for dissolution of marriage or
8 declaration of invalidity of marriage, or in a proceeding for
9 disposition of property following dissolution of marriage by
10 a court which lacked personal jurisdiction over the absent
11 spouse or lacked jurisdiction to dispose of the property, the
12 court shall assign each spouse's non-marital property to that
13 spouse. It also shall divide the marital property without
14 regard to marital misconduct in just proportions considering
15 all relevant factors, including:
16 (1) the contribution of each party to the
17 acquisition, preservation, or increase or decrease in
18 value of the marital or non-marital property, including
19 the contribution of a spouse as a homemaker or to the
20 family unit;
21 (2) the dissipation by each party of the marital or
22 non-marital property;
23 (3) the value of the property assigned to each
24 spouse;
25 (4) the duration of the marriage;
26 (5) the relevant economic circumstances of each
27 spouse when the division of property is to become
28 effective, including the desirability of awarding the
29 family home, or the right to live therein for reasonable
30 periods, to the spouse having custody of the children;
31 (6) any obligations and rights arising from a prior
32 marriage of either party;
33 (7) any antenuptial agreement of the parties;
34 (8) the age, health, station, occupation, amount
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1 and sources of income, vocational skills, employability,
2 estate, liabilities, and needs of each of the parties;
3 (9) the custodial provisions for any children;
4 (10) whether the apportionment is in lieu of or in
5 addition to maintenance;
6 (11) the reasonable opportunity of each spouse for
7 future acquisition of capital assets and income; and
8 (12) the tax consequences of the property division
9 upon the respective economic circumstances of the
10 parties.
11 (e) Each spouse has a species of common ownership in the
12 marital property which vests at the time dissolution
13 proceedings are commenced and continues only during the
14 pendency of the action. Any such interest in marital
15 property shall not encumber that property so as to restrict
16 its transfer, assignment or conveyance by the title holder
17 unless such title holder is specifically enjoined from making
18 such transfer, assignment or conveyance.
19 (f) In a proceeding for dissolution of marriage or
20 declaration of invalidity of marriage or in a proceeding for
21 disposition of property following dissolution of marriage by
22 a court that lacked personal jurisdiction over the absent
23 spouse or lacked jurisdiction to dispose of the property, the
24 court, in determining the value of the marital and
25 non-marital property for purposes of dividing the property,
26 shall value the property as of the date of trial or some
27 other date as close to the date of trial as is practicable.
28 (g) The court if necessary to protect and promote the
29 best interests of the children may set aside a portion of the
30 jointly or separately held estates of the parties in a
31 separate fund or trust for the support, maintenance,
32 education, and general welfare of any minor, dependent, or
33 incompetent child of the parties. In making a determination
34 under this subsection, the court may consider, among other
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1 things, the conviction of a party of any of the offenses set
2 forth in Section 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13,
3 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961
4 if the victim is a child of one or both of the parties, and
5 there is a need for, and cost of, care, healing and
6 counseling for the child who is the victim of the crime.
7 (h) Unless specifically directed by a reviewing court,
8 or upon good cause shown, the court shall not on remand
9 consider any increase or decrease in the value of any
10 "marital" or "non-marital" property occurring since the
11 assessment of such property at the original trial or hearing,
12 but shall use only that assessment made at the original trial
13 or hearing.
14 (i) The court may make such judgments affecting the
15 marital property as may be just and may enforce such
16 judgments by ordering a sale of marital property, with
17 proceeds therefrom to be applied as determined by the court.
18 (j) After proofs have closed in the final hearing on all
19 other issues between the parties (or in conjunction with the
20 final hearing, if all parties so stipulate) and before
21 judgment is entered, a party's petition for contribution to
22 fees and costs incurred in the proceeding shall be heard and
23 decided, in accordance with the following provisions:
24 (1) A petition for contribution, if not filed
25 before the final hearing on other issues between the
26 parties, shall be filed no later than 30 days after the
27 closing of proofs in the final hearing or within such
28 other period as the court orders.
29 (2) Any award of contribution to one party from the
30 other party shall be based on the criteria for division
31 of marital property under this Section 503 and, if
32 maintenance has been awarded, on the criteria for an
33 award of maintenance under Section 504.
34 (3) The filing of a petition for contribution shall
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1 not be deemed to constitute a waiver of the
2 attorney-client privilege between the petitioning party
3 and current or former counsel; and such a waiver shall
4 not constitute a prerequisite to a hearing for
5 contribution. If either party's presentation on
6 contribution, however, includes evidence within the scope
7 of the attorney-client privilege, the disclosure or
8 disclosures shall be narrowly construed and shall not be
9 deemed by the court to constitute a general waiver of the
10 privilege as to matters beyond the scope of the
11 presentation.
12 (4) No finding on which a contribution award is
13 based or denied shall be asserted against counsel or
14 former counsel for purposes of any hearing under
15 subsection (c) or (e) of Section 508.
16 (5) A contribution award (payable to either the
17 petitioning party or the party's counsel, or jointly, as
18 the court determines) may be in the form of either a set
19 dollar amount or a percentage of fees and costs (or a
20 portion of fees and costs) to be subsequently agreed upon
21 by the petitioning party and counsel or, alternatively,
22 thereafter determined in a hearing pursuant to subsection
23 (c) of Section 508 or previously or thereafter determined
24 in an independent proceeding under subsection (e) of
25 Section 508.
26 (6) The changes to this Section 503 made by this
27 amendatory Act of 1996 apply to cases pending on or after
28 June 1, 1997, except as otherwise provided in Section
29 508.
30 (Source: P.A. 88-45; 89-428, eff. 12-13-95; 89-462, eff.
31 5-29-96; 89-712, eff. 6-1-97; 90-731, eff. 7-1-99.)
32 Section 95. No acceleration or delay. Where this Act
33 makes changes in a statute that is represented in this Act by
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1 text that is not yet or no longer in effect (for example, a
2 Section represented by multiple versions), the use of that
3 text does not accelerate or delay the taking effect of (i)
4 the changes made by this Act or (ii) provisions derived from
5 any other Public Act.