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91_HB2219eng HB2219 Engrossed 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 HB2219 Engrossed -2- LRB9102791RCks 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: HB2219 Engrossed -3- LRB9102791RCks 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 HB2219 Engrossed -4- LRB9102791RCks 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 HB2219 Engrossed -5- LRB9102791RCks 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 HB2219 Engrossed -6- LRB9102791RCks 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 HB2219 Engrossed -7- LRB9102791RCks 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. HB2219 Engrossed -8- LRB9102791RCks 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, HB2219 Engrossed -9- LRB9102791RCks 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 HB2219 Engrossed -10- LRB9102791RCks 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 HB2219 Engrossed -11- LRB9102791RCks 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 HB2219 Engrossed -12- LRB9102791RCks 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; HB2219 Engrossed -13- LRB9102791RCks 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 HB2219 Engrossed -14- LRB9102791RCks 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 HB2219 Engrossed -15- LRB9102791RCks 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. HB2219 Engrossed -16- LRB9102791RCks 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 HB2219 Engrossed -17- LRB9102791RCks 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 HB2219 Engrossed -18- LRB9102791RCks 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 HB2219 Engrossed -19- LRB9102791RCks 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 HB2219 Engrossed -20- LRB9102791RCks 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 HB2219 Engrossed -21- LRB9102791RCks 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 HB2219 Engrossed -22- LRB9102791RCks 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 HB2219 Engrossed -23- LRB9102791RCks 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 HB2219 Engrossed -24- LRB9102791RCks 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 HB2219 Engrossed -25- LRB9102791RCks 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.