(750 ILCS 5/Pt. V heading)
PART V
PROPERTY, SUPPORT AND ATTORNEY FEES
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(750 ILCS 5/501) (from Ch. 40, par. 501)
Sec. 501. Temporary Relief.) In all proceedings under this Act,
temporary relief shall be as follows:
(a) Either party may move for:
(1) temporary maintenance or temporary support of a
| | child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested;
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(2) a temporary restraining order or preliminary
| | injunction, accompanied by affidavit showing a factual basis for any of the following relief:
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(i) restraining any person from transferring,
| | encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued;
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(ii) enjoining a party from removing a child from
| | the jurisdiction of the court;
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(iii) enjoining a party from striking or
| | interfering with the personal liberty of the other party or of any child; or
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(iv) providing other injunctive relief proper in
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(3) other appropriate temporary relief.
(b) The court may issue a temporary restraining order without
requiring notice to the other party only if it finds, on the basis of
the moving affidavit or other evidence, that irreparable injury will
result to the moving party if no order is issued until the time for
responding has elapsed.
(c) A response hereunder may be filed within 21 days after service
of notice of motion or at the time specified in the temporary
restraining order.
(c-1) As used in this subsection (c-1), "interim attorney's fees and
costs" means attorney's fees and costs
assessed
from time to time while a case is pending, in favor of the petitioning party's
current counsel, for reasonable fees and costs either already incurred or to be
incurred, and "interim award" means an award of interim attorney's fees and
costs. Interim awards shall be governed by the following:
(1) Except for good cause shown, a proceeding for (or
| | relating to) interim attorney's fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature. All hearings for or relating to interim attorney's fees and costs under this subsection shall be scheduled expeditiously by the court. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable:
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(A) the income and property of each party,
| | including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;
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(B) the needs of each party;
(C) the realistic earning capacity of each party;
(D) any impairment to present earning capacity of
| | either party, including age and physical and emotional health;
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(E) the standard of living established during the
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(F) the degree of complexity of the issues,
| | including custody, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;
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(G) each party's access to relevant information;
(H) the amount of the payment or payments made or
| | reasonably expected to be made to the attorney for the other party; and
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(I) any other factor that the court expressly
| | finds to be just and equitable.
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(2) Any assessment of an interim award (including one
| | pursuant to an agreed order) shall be without prejudice to any final allocation and without prejudice as to any claim or right of either party or any counsel of record at the time of the award. Any such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under subsection (j) of Section 503 or a hearing on counsel's fees under subsection (c) of Section 508. Unless otherwise ordered by the court at the final hearing between the parties or in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508, interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties' marital estate. Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs, after notice.
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(3) In any proceeding under this subsection (c-1),
| | the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties.
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(4) The changes to this Section 501 made by this
| | amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.
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(d) A temporary order entered under this Section:
(1) does not prejudice the rights of the parties or
| | the child which are to be adjudicated at subsequent hearings in the proceeding;
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(2) may be revoked or modified before final judgment,
| | on a showing by affidavit and upon hearing; and
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(3) terminates when the final judgment is entered or
| | when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.
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(Source: P.A. 96-583, eff. 1-1-10.)
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(750 ILCS 5/501.1) (from Ch. 40, par. 501.1)
Sec. 501.1.
Dissolution action stay.
(a) Upon service of a summons and petition or praecipe filed
under the Illinois Marriage and Dissolution of Marriage Act or upon
the filing of the respondent's appearance in the proceeding, whichever first
occurs, a dissolution action stay shall be in effect against both parties
and their agents and employees, without bond or further notice, until a
final judgement is entered, the proceeding is dismissed, or until further
order of the court:
(1) restraining both parties from transferring,
| | encumbering, concealing, destroying, spending, damaging, or in any way disposing of any property, without the consent of the other party or an order of the court, except in the usual course of business, for the necessities of life, or for reasonable costs, expenses, and attorney's fees arising from the proceeding, as well as requiring each party to provide written notice to the other party and his or her attorney of any proposed extraordinary expenditure or transaction;
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(2) restraining both parties from physically abusing,
| | harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party; and
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(3) restraining both parties from removing any minor
| | child of either party from the State of Illinois or from concealing any such child from the other party, without the consent of the other party or an order of the court.
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The restraint provided in this subsection (a) does not operate to make
unavailable any of the remedies provided in the Illinois Domestic Violence Act
of 1986.
A restraint of the parties' actions under this Section does not
affect the rights of a bona fide purchaser or mortgagee whose interest in
real property or whose beneficial interest in real property under an
Illinois land trust was acquired before the filing of a lis pendens
notice under Section 2-1901 of the Code of Civil Procedure.
(b) Notice of any proposed extraordinary expenditure or
transaction, as required by subsection (a), shall be given as soon as
practicable, but not less than 7 days before the proposed date
for the carrying out or commencement of the carrying out of the
extraordinary expenditure or transaction, except in an emergency, in
which event notice shall be given as soon as practicable under the
circumstances. If proper notice is given and if the party receiving the
notice does not object by filing a petition for injunctive relief under
the Code of Civil Procedure within 7 days of receipt of the notice, the
carrying out of the proposed extraordinary expenditure or transaction is
not a violation of the dissolution action stay. The dissolution action
stay shall remain in full force and effect against both parties for 14 days
after the date of filing of a petition for injunctive relief by the
objecting party (or a shorter period if the court so orders); and no
extension beyond that 14 day period shall be granted by the court. For
good cause shown, a party may file a petition for a reduction in time with
respect to any 7 day notice requirement under this subsection.
(c) A party making any extraordinary expenditure or carrying out
any extraordinary transaction after a dissolution action stay is in
effect shall account promptly to the court and to the other party for all
of those expenditures and transactions. This obligation to account applies
throughout the pendency of the proceeding, irrespective of (i) any notice
given by any party as to any proposed extraordinary expenditure or
transaction, (ii) any filing of an objection and petition under this
Section or the absence of any such filing, or (iii) any court ruling as to
an issue presented to it by either party.
(d) If the party making an extraordinary expenditure or transaction
fails to provide proper notice or if despite proper notice the other
party filed a petition and prevailed on that petition, and the
extraordinary expenditure or transaction results in a loss of income or
reduction in the amount or in the value of property, there is a
presumption of dissipation of property, equal to the amount of the loss or
reduction, charged against the party for purposes of property
distribution under Section 503.
(e) In a proceeding filed under this Act, the summons shall provide
notice of the entry of the automatic dissolution action stay in a form as
required by applicable rules.
(Source: P.A. 87-881; 88-24.)
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(750 ILCS 5/502) (from Ch. 40, par. 502)
Sec. 502.
Agreement.
(a) To promote amicable settlement
of disputes between
parties to a marriage attendant upon the dissolution of their marriage,
the parties may enter
into a written or oral agreement containing provisions for
disposition of any
property owned by either of them, maintenance of either of them and support,
custody and visitation
of their children.
(b) The terms of the agreement, except those providing for the support,
custody and visitation of children, are binding upon the court unless it finds, after
considering the economic circumstances of the parties and any other relevant evidence
produced by the parties, on their own motion or on request of the court,
that the
agreement is unconscionable.
(c) If the court finds the agreement unconscionable,
it may request the parties to submit a revised agreement
or upon hearing, may make orders
for the disposition of property, maintenance, child support and other matters.
(d) Unless the agreement provides to the contrary, its
terms shall be set forth
in the judgment, and the parties shall be ordered to perform under such
terms, or if the agreement
provides that its terms shall not be set forth in the judgment, the judgment shall
identify the agreement and state that the court has approved its terms.
(e) Terms of the agreement set forth in the judgment are enforceable by
all remedies available for enforcement
of a judgment, including contempt, and are enforceable as contract terms.
(f) Except for terms concerning the support, custody or visitation of children,
the judgment may expressly preclude or limit modification of terms set forth in the
judgment if the agreement so provides. Otherwise, terms
of an agreement
set forth in the judgment are automatically modified by modification of the judgment.
(Source: P.A. 83-216.)
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(750 ILCS 5/503) (from Ch. 40, par. 503)
Sec. 503. Disposition of property.
(a) For purposes of this Act, "marital property" means all property acquired
by either spouse subsequent to the marriage, except the following, which is
known as "non-marital property":
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property
| | acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
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(3) property acquired by a spouse after a judgment of
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(4) property excluded by valid agreement of the
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(5) any judgment or property obtained by judgment
| | awarded to a spouse from the other spouse;
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(6) property acquired before the marriage;
(7) the increase in value of property acquired by a
| | method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
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(8) income from property acquired by a method listed
| | in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
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(b)(1) For purposes of distribution of property pursuant to this
Section, all property acquired by either spouse after the marriage and before a
judgment of dissolution of marriage or declaration of invalidity of marriage,
including non-marital property transferred into some form of co-ownership
between the spouses, is presumed to be marital property, regardless of whether
title is held individually or by the spouses in some form of co-ownership such
as joint tenancy, tenancy in common, tenancy by the entirety, or community
property. The presumption of marital property is overcome by a showing that
the property was acquired by a method listed in subsection (a) of this Section.
(2) For purposes of distribution of property pursuant to this Section,
all pension benefits (including pension benefits under the Illinois Pension
Code) acquired by either spouse after the marriage and before a judgment of
dissolution of marriage or declaration of invalidity of the marriage are
presumed to be marital property, regardless of which spouse participates in the
pension plan. The presumption that these pension benefits are marital property
is overcome by a showing that the pension benefits were acquired by a method
listed in subsection (a) of this Section. The right to a division of pension
benefits in just proportions under this Section is enforceable under Section
1-119 of the Illinois Pension Code.
The value of pension benefits in a retirement system subject to the Illinois
Pension Code shall be determined in accordance with the valuation procedures
established by the retirement system.
The recognition of pension benefits as marital property and the division of
those benefits pursuant to a Qualified Illinois Domestic Relations Order shall
not be deemed to be a diminishment, alienation, or impairment of those
benefits. The division of pension benefits is an allocation of property in
which each spouse has a species of common ownership.
(3) For purposes of distribution of property under this Section, all stock
options granted to either spouse after the marriage and before a judgment of
dissolution of marriage or declaration of invalidity of marriage, whether
vested or non-vested or whether their value is ascertainable, are presumed to
be marital property. This presumption of marital property is overcome by a
showing that the stock options were acquired by a method listed in subsection
(a) of this Section. The court shall allocate stock options between the
parties at the time of the judgment of dissolution of marriage or declaration
of invalidity of marriage recognizing that the value of the stock options may
not be then determinable and that the actual division of the options may not
occur until a future date. In making the allocation between the parties, the
court shall consider, in addition to the factors set forth in subsection (d) of
this Section, the following:
(i) All circumstances underlying the grant of the
| | stock option including but not limited to whether the grant was for past, present, or future efforts, or any combination thereof.
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(ii) The length of time from the grant of the option
| | to the time the option is exercisable.
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(b-5) As to any policy of life insurance insuring the life of either spouse, or any interest in such policy, that constitutes marital property, whether whole life, term life, group term life, universal life, or other form of life
insurance policy, and whether or not the value is ascertainable, the court shall allocate ownership, death benefits or the
right to assign death benefits, and the obligation for premium payments, if any, equitably between the parties at the
time of the judgment for dissolution or declaration of invalidity of marriage.
(c) Commingled marital and non-marital property shall be treated in
the following manner, unless otherwise agreed by the spouses:
(1) When marital and non-marital property are
| | commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection; provided that if marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection.
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(2) When one estate of property makes a contribution
| | to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.
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(d) In a proceeding for dissolution of marriage or declaration of invalidity
of marriage, or in a proceeding for disposition of property following
dissolution of marriage by a court which lacked personal jurisdiction over the
absent spouse or lacked jurisdiction to dispose of the property, the court
shall assign each spouse's non-marital property to that spouse. It also shall
divide the marital property without regard to marital misconduct in just
proportions considering all relevant factors, including:
(1) the contribution of each party to the
| | acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including (i) any such decrease attributable to a payment deemed to have been an advance from the parties' marital estate under subsection (c-1)(2) of Section 501 and (ii) the contribution of a spouse as a homemaker or to the family unit;
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(2) the dissipation by each party of the marital or
| | non-marital property, provided that a party's claim of dissipation is subject to the following conditions:
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(i) a notice of intent to claim dissipation shall
| | be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;
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| (ii) the notice of intent to claim dissipation
| | shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;
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| (iii) the notice of intent to claim dissipation
| | shall be filed with the clerk of the court and be served pursuant to applicable rules;
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| (iv) no dissipation shall be deemed to have
| | occurred prior to 5 years before the filing of the petition for dissolution of marriage, or 3 years after the party claiming dissipation knew or should have known of the dissipation;
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(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each
| | spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
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(6) any obligations and rights arising from a prior
| | marriage of either party;
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(7) any antenuptial agreement of the parties;
(8) the age, health, station, occupation, amount and
| | sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
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(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in
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(11) the reasonable opportunity of each spouse for
| | future acquisition of capital assets and income; and
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(12) the tax consequences of the property division
| | upon the respective economic circumstances of the parties.
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(e) Each spouse has a species of common ownership in the marital property
which vests at the time dissolution proceedings are commenced and continues
only during the pendency of the action. Any such interest in marital property
shall not encumber that property so as to restrict its transfer, assignment
or conveyance by the title holder unless such title holder is specifically
enjoined from making such transfer, assignment or conveyance.
(f) In a proceeding for dissolution of marriage or declaration of
invalidity of marriage or in a proceeding for disposition of property
following dissolution of marriage by a court that lacked personal
jurisdiction over the absent spouse or lacked jurisdiction to dispose of
the property, the court, in determining the value of the marital and
non-marital property for purposes of dividing the property, shall value the
property as of the date of trial or some other date as close to the date
of trial as is practicable.
(g) The court if necessary to protect and promote the best interests of the
children may set aside a portion of the jointly or separately held
estates of the parties in a separate fund or trust for the support,
maintenance, education, physical and mental health, and general welfare of any minor, dependent,
or incompetent child of the parties. In making a determination under this
subsection, the court may consider, among other things, the conviction of a
party of any of the offenses set forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, 12-15, or 12-16, or Section 12-3.05 except for subdivision (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal Code of 2012 if the
victim is a
child of one or both of the parties, and there is a need for, and cost of,
care, healing and counseling for the child who is the victim of the crime.
(h) Unless specifically directed by a reviewing court, or upon good
cause shown, the court shall not on remand consider any increase or
decrease in the value of any "marital" or "non-marital" property occurring
since the assessment of such property at the original trial or hearing, but
shall use only that assessment made at the original trial or hearing.
(i) The court may make such judgments affecting the marital property
as may be just and may enforce such judgments by ordering a sale of marital
property, with proceeds therefrom to be applied as determined by the court.
(j) After proofs have closed in the final hearing on all other issues
between the parties (or in conjunction with the final hearing, if all parties
so stipulate) and before judgment is entered, a party's petition for
contribution to fees and costs incurred in the proceeding shall be heard and
decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed before
| | the final hearing on other issues between the parties, shall be filed no later than 30 days after the closing of proofs in the final hearing or within such other period as the court orders.
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(2) Any award of contribution to one party from the
| | other party shall be based on the criteria for division of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance under Section 504.
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(3) The filing of a petition for contribution shall
| | not be deemed to constitute a waiver of the attorney-client privilege between the petitioning party and current or former counsel; and such a waiver shall not constitute a prerequisite to a hearing for contribution. If either party's presentation on contribution, however, includes evidence within the scope of the attorney-client privilege, the disclosure or disclosures shall be narrowly construed and shall not be deemed by the court to constitute a general waiver of the privilege as to matters beyond the scope of the presentation.
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(4) No finding on which a contribution award is based
| | or denied shall be asserted against counsel or former counsel for purposes of any hearing under subsection (c) or (e) of Section 508.
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(5) A contribution award (payable to either the
| | petitioning party or the party's counsel, or jointly, as the court determines) may be in the form of either a set dollar amount or a percentage of fees and costs (or a portion of fees and costs) to be subsequently agreed upon by the petitioning party and counsel or, alternatively, thereafter determined in a hearing pursuant to subsection (c) of Section 508 or previously or thereafter determined in an independent proceeding under subsection (e) of Section 508.
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(6) The changes to this Section 503 made by this
| | amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.
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The changes made to this Section by this amendatory Act of the 97th General Assembly apply only to petitions for dissolution of marriage filed on or after the effective date of this amendatory Act of the 97th General Assembly.
(Source: P.A. 96-583, eff. 1-1-10; 96-1551, Article 1, Section 985, eff. 7-1-11; 96-1551, Article 2, Section 1100, eff. 7-1-11; 97-608, eff. 1-1-12; 97-941, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
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(750 ILCS 5/504) (from Ch. 40, par. 504)
Sec. 504. Maintenance.
(a) Entitlement to maintenance. In a proceeding for dissolution of marriage or legal separation or
declaration of invalidity of marriage, or a proceeding for maintenance
following dissolution of the marriage by a court which lacked personal
jurisdiction over the absent spouse, the court may grant a temporary or
permanent maintenance award for either spouse in amounts and for periods of
time as the court deems just, without regard to marital misconduct, in
gross or for fixed or indefinite periods of time, and the maintenance may
be paid from the income or property of the other spouse. The court shall first determine whether a maintenance award is appropriate, after consideration
of all relevant factors, including:
(1) the income and property of each party, including
| | marital property apportioned and non-marital property assigned to the party seeking maintenance;
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(2) the needs of each party;
(3) the present and future earning capacity of each
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(4) any impairment of the present and future earning
| | capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
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(5) the time necessary to enable the party seeking
| | maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;
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(6) the standard of living established during the
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(7) the duration of the marriage;
(8) the age and the physical and emotional condition
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(9) the tax consequences of the property division
| | upon the respective economic circumstances of the parties;
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(10) contributions and services by the party seeking
| | maintenance to the education, training, career or career potential, or license of the other spouse;
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(11) any valid agreement of the parties; and
(12) any other factor that the court expressly finds
| | to be just and equitable.
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(b) (Blank).
(b-1) Amount and duration of maintenance. If the court determines that a maintenance award is appropriate, the court shall order maintenance in accordance with either paragraph (1) or (2) of this subsection (b-1):
(1) Maintenance award in accordance with guidelines.
| | In situations when the combined gross income of the parties is less than $250,000 and no multiple family situation exists, maintenance payable after the date the parties' marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.
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| (A) The amount of maintenance under this
| | paragraph (1) shall be calculated by taking 30% of the payor's gross income minus 20% of the payee's gross income. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
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| (B) The duration of an award under this
| | paragraph (1) shall be calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.
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| (2) Maintenance award not in accordance with
| | guidelines. Any non-guidelines award of maintenance shall be made after the court's consideration of all relevant factors set forth in subsection (a) of this Section.
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| (b-2) Findings. In each case involving the issue of maintenance, the court shall make specific findings of fact, as follows:
(1) the court shall state its reasoning for awarding
| | or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section; and
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| (2) if the court deviates from otherwise applicable
| | guidelines under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.
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| (b-3) Gross income. For purposes of this Section, the term "gross income" means all income from all sources, within the scope of that phase in Section 505 of this Act.
(b-4) Unallocated maintenance. Unless the parties otherwise agree, the court may not order unallocated maintenance and child support in any dissolution judgment or in any post-dissolution order. In its discretion, the court may order unallocated maintenance and child support in any pre-dissolution temporary order.
(b-4.5) Fixed-term maintenance in marriages of less than 10 years. If a court grants maintenance for a fixed period under subsection (a) of this Section at the conclusion of a case commenced before the tenth anniversary of the marriage, the court may also designate the termination of the period during which this maintenance is to be paid as a "permanent termination". The effect of this designation is that maintenance is barred after the ending date of the period during which maintenance is to be paid.
(b-5) Interest on maintenance. Any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as set forth in Section 505 of this Act.
(b-7) Maintenance judgments. Any new or existing maintenance order including any unallocated maintenance and child support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder. Each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order, except no judgment shall arise as to any installment coming due after the termination of maintenance as provided by Section 510 of the Illinois Marriage and Dissolution of Marriage Act or the provisions of any order for maintenance. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.
(c) Maintenance during an appeal. The court may grant and enforce the payment of maintenance during
the pendency of an appeal as the court shall deem reasonable and proper.
(d) Maintenance during imprisonment. No maintenance shall accrue during the period in which a party is
imprisoned for failure to comply with the court's order for the payment of
such maintenance.
(e) Fees when maintenance is paid through the clerk. When maintenance is to be paid through the clerk of the court in a
county of 1,000,000 inhabitants or less, the order shall direct the obligor
to pay to the clerk, in addition to the maintenance payments, all fees
imposed by the county board under paragraph (3) of subsection (u) of
Section 27.1 of the Clerks of Courts Act. Unless paid in cash or pursuant
to an order for withholding, the payment of the fee shall be by a separate
instrument from the support payment and shall be made to the order of
the Clerk.
(f) Maintenance secured by life insurance. An award ordered by a court upon entry of a dissolution judgment or upon entry of an award of maintenance following a reservation of maintenance in a dissolution judgment may be reasonably secured, in whole or in part, by life insurance on the
payor's life on terms as to which the parties agree, or, if they do not agree, on such terms determined by the court,
subject to the following:
(1) With respect to existing life insurance, provided
| | the court is apprised through evidence, stipulation, or otherwise as to level of death benefits, premium, and other relevant data and makes findings relative thereto, the court may allocate death benefits, the right to assign death benefits, or the obligation for future premium payments between the parties as it deems just.
|
| (2) To the extent the court determines that its award
| | should be secured, in whole or in part, by new life insurance on the payor's life, the court may only order:
|
| (i) that the payor cooperate on all appropriate
| | steps for the payee to obtain such new life insurance; and
|
| (ii) that the payee, at his or her sole option
| | and expense, may obtain such new life insurance on the payor's life up to a maximum level of death benefit coverage, or descending death benefit coverage, as is set by the court, such level not to exceed a reasonable amount in light of the court's award, with the payee or the payee's designee being the beneficiary of such life insurance.
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| In determining the maximum level of death benefit
| | coverage, the court shall take into account all relevant facts and circumstances, including the impact on access to life insurance by the maintenance payor. If in resolving any issues under paragraph (2) of this subsection (f) a court reviews any submitted or proposed application for new insurance on the life of a maintenance payor, the review shall be in camera.
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| (3) A judgment shall expressly set forth that all
| | death benefits paid under life insurance on a payor's life maintained or obtained pursuant to this subsection to secure maintenance are designated as excludable from the gross income of the maintenance payee under Section 71(b)(1)(B) of the Internal Revenue Code, unless an agreement or stipulation of the parties otherwise provides.
|
| (Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12; 97-813, eff. 7-13-12; 98-961, eff. 1-1-15.)
|
(750 ILCS 5/505) (from Ch. 40, par. 505)
Sec. 505. Child support; contempt; penalties.
(a) In a proceeding for dissolution of marriage, legal separation,
declaration of invalidity of marriage, a proceeding for child support
following dissolution of the marriage by a court that lacked personal
jurisdiction over the absent spouse, a proceeding for modification of a
previous order for child support under Section 510 of this Act, or any
proceeding authorized under Section 501 or 601 of this Act, the court may
order either or both parents owing a duty of support to a child of the
marriage to pay an amount reasonable and necessary for the support of the child, without
regard to marital misconduct. The duty of support owed to a child
includes the obligation to provide for the reasonable and necessary
educational, physical, mental and emotional health needs of the child.
For purposes of this Section, the term "child" shall include any child under
age 18 and
any child under age 19 who is still attending high school.
(1) The Court shall determine the minimum amount of
| | support by using the following guidelines:
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|
|
Number of Children |
Percent of Supporting Party's |
|
Net Income |
1 |
20% |
2 |
28% |
3 |
32% |
4 |
40% |
5 |
45% |
6 or more |
50% |
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(2) The above guidelines shall be applied in each
| | case unless the court finds that a deviation from the guidelines is appropriate after considering the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors:
|
|
(a) the financial resources and needs of the
| |
(b) the financial resources and needs of the
| |
(c) the standard of living the child would have
| | enjoyed had the marriage not been dissolved;
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|
(d) the physical, mental, and emotional needs of
| |
(d-5) the educational needs of the child; and
(e) the financial resources and needs of the
| |
If the court deviates from the guidelines, the
| | court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.
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|
(2.5) The court, in its discretion, in addition to
| | setting child support pursuant to the guidelines and factors, may order either or both parents owing a duty of support to a child of the marriage to contribute to the following expenses, if determined by the court to be reasonable:
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| (a) health needs not covered by insurance;
(b) child care;
(c) education; and
(d) extracurricular activities.
(3) "Net income" is defined as the total of all
| | income from all sources, minus the following deductions:
|
|
(a) Federal income tax (properly calculated
| | withholding or estimated payments);
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|
(b) State income tax (properly calculated
| | withholding or estimated payments);
|
|
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions required
| | by law or as a condition of employment;
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|
(e) Union dues;
(f) Dependent and individual
| | health/hospitalization insurance premiums and premiums for life insurance ordered by the court to reasonably secure payment of ordered child support;
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|
(g) Prior obligations of support or maintenance
| | actually paid pursuant to a court order;
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(g-5) Obligations pursuant to a court order for
| | maintenance in the pending proceeding actually paid or payable under Section 504 to the same party to whom child support is to be payable;
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| (h) Expenditures for repayment of debts that
| | represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period;
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(i) Foster care payments paid by the Department
| | of Children and Family Services for providing licensed foster care to a foster child.
|
| (4) In cases where the court order provides for
| | health/hospitalization insurance coverage pursuant to Section 505.2 of this Act, the premiums for that insurance, or that portion of the premiums for which the supporting party is responsible in the case of insurance provided through an employer's health insurance plan where the employer pays a portion of the premiums, shall be subtracted from net income in determining the minimum amount of support to be ordered.
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|
(4.5) In a proceeding for child support following
| | dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the supporting party's net income for the prior period was the same as his or her net income at the time the order for current support is entered.
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(5) If the net income cannot be determined because of
| | default or any other reason, the court shall order support in an amount considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor's net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.
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|
(6) If (i) the non-custodial parent was properly
| | served with a request for discovery of financial information relating to the non-custodial parent's ability to provide child support, (ii) the non-custodial parent failed to comply with the request, despite having been ordered to do so by the court, and (iii) the non-custodial parent is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the non-custodial parent's ability to provide child support that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further foundation for its admission.
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|
(a-5) In an action to enforce an order for support based on the
respondent's failure
to make support payments as required by the order, notice of proceedings to
hold the respondent in contempt for that failure may be served on the
respondent by personal service or by regular mail addressed to the respondent's
last known address. The respondent's last known address may be determined from
records of the clerk of the court, from the Federal Case Registry of Child
Support Orders, or by any other reasonable means.
(b) Failure of either parent to comply with an order to pay support shall
be punishable as in other cases of contempt. In addition to other
penalties provided by law the Court may, after finding the parent guilty
of contempt, order that the parent be:
(1) placed on probation with such conditions of
| | probation as the Court deems advisable;
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|
(2) sentenced to periodic imprisonment for a period
| | not to exceed 6 months; provided, however, that the Court may permit the parent to be released for periods of time during the day or night to:
|
|
(A) work; or
(B) conduct a business or other self-employed
| |
The Court may further order any part or all of the earnings of a parent
during a sentence of periodic imprisonment paid to the Clerk of the Circuit
Court or to the parent having custody or to the guardian having custody
of the children of the sentenced parent for the support of said
children until further order of the Court.
If a parent who is found guilty of contempt for failure to comply with an order to pay support is a person who conducts a business or who is self-employed, the court in addition to other penalties provided by law may order that the parent do one or more of the following: (i) provide to the court monthly financial statements showing income and expenses from the business or the self-employment; (ii) seek employment and report periodically to the court with a diary, listing, or other memorandum of his or her employment search efforts; or (iii) report to the Department of Employment Security for job search services to find employment that will be subject to withholding for child support.
If there is a unity of interest and ownership sufficient to render no
financial separation between a non-custodial parent and another person or
persons or business entity, the court may pierce the ownership veil of the
person, persons, or business entity to discover assets of the non-custodial
parent held in the name of that person, those persons, or that business entity.
The following circumstances are sufficient to authorize a court to order
discovery of the assets of a person, persons, or business entity and to compel
the application of any discovered assets toward payment on the judgment for
support:
(1) the non-custodial parent and the person, persons,
| | or business entity maintain records together.
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|
(2) the non-custodial parent and the person, persons,
| | or business entity fail to maintain an arm's length relationship between themselves with regard to any assets.
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|
(3) the non-custodial parent transfers assets to the
| | person, persons, or business entity with the intent to perpetrate a fraud on the custodial parent.
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|
With respect to assets which
are real property, no order entered under this paragraph shall affect the
rights of bona fide purchasers, mortgagees, judgment creditors, or other lien
holders who acquire their interests in the property prior to the time a notice
of lis pendens pursuant to the Code of Civil Procedure or a copy of the order
is placed of record in the office of the recorder of deeds for the county in
which the real property is located.
The court may also order in cases where the parent is 90 days or more
delinquent in payment of support or has been adjudicated in arrears in an
amount equal to 90 days obligation or more, that the parent's Illinois driving
privileges be suspended until the court
determines that the parent is in compliance with the order of support.
The court may also order that the parent be issued a family financial
responsibility driving permit that would allow limited driving privileges for
employment and medical purposes in accordance with Section 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit court shall certify the order
suspending the driving privileges of the parent or granting the issuance of a
family financial responsibility driving permit to the Secretary of State on
forms prescribed by the Secretary. Upon receipt of the authenticated
documents, the Secretary of State shall suspend the parent's driving privileges
until further order of the court and shall, if ordered by the court, subject to
the provisions of Section 7-702.1 of the Illinois Vehicle Code, issue a family
financial responsibility driving permit to the parent.
In addition to the penalties or punishment that may be imposed under this
Section, any person whose conduct constitutes a violation of Section 15 of the
Non-Support Punishment Act may be prosecuted under that Act, and a person
convicted under that Act may be sentenced in accordance with that Act. The
sentence may include but need not be limited to a requirement that the person
perform community service under Section 50 of that Act or participate in a work
alternative program under Section 50 of that Act. A person may not be required
to participate in a work alternative program under Section 50 of that Act if
the person is currently participating in a work program pursuant to Section
505.1 of this Act.
A support obligation, or any portion of a support obligation, which becomes
due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure.
An order for support entered or modified on or after January 1, 2006 shall
contain a statement that a support obligation required under the order, or any
portion of a support obligation required under the order, that becomes due and
remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure. Failure to include the statement in the order for support does
not affect the validity of the order or the accrual of interest as provided in
this Section.
(c) A one-time charge of 20% is imposable upon the amount of
past-due child support owed on July 1, 1988 which has accrued under a
support order entered by the court. The charge shall be imposed in
accordance with the provisions of Section 10-21 of the Illinois Public Aid
Code and shall be enforced by the court upon petition.
(d) Any new or existing support order entered by the court
under this Section shall be deemed to be a series of judgments against the
person obligated to pay support thereunder, each such judgment to be in the
amount of each payment or installment of support and each such judgment to
be deemed entered as of the date the corresponding payment or installment
becomes due under the terms of the support order. Each such judgment shall
have the full force, effect and attributes of any other judgment of this
State, including the ability to be enforced.
Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of
the noncustodial parent for each installment of overdue support owed by the
noncustodial parent.
(e) When child support is to be paid through the clerk of the court in a
county of 1,000,000 inhabitants or less, the order shall direct the obligor
to pay to the clerk, in addition to the child support payments, all fees
imposed by the county board under paragraph (3) of subsection (u) of
Section 27.1 of the Clerks of Courts Act. Unless paid in cash or pursuant to
an order for withholding, the payment of the fee shall be by a separate
instrument from the support payment and shall be made to the order of the
Clerk.
(f) All orders for support, when entered or
modified, shall include a provision requiring the obligor to notify
the court and, in cases in which a party is receiving child and spouse
services under Article X of the Illinois Public Aid Code, the
Department of Healthcare and Family Services, within 7 days, (i) of the name and address
of any new employer of the obligor, (ii) whether the obligor has access to
health insurance coverage through the employer or other group coverage and,
if so, the policy name and number and the names of persons covered under
the policy, and (iii) of any new residential or mailing address or telephone
number of the non-custodial parent. In any subsequent action to enforce a
support order, upon a sufficient showing that a diligent effort has been made
to ascertain the location of the non-custodial parent, service of process or
provision of notice necessary in the case may be made at the last known
address of the non-custodial parent in any manner expressly provided by the
Code of Civil Procedure or this Act, which service shall be sufficient for
purposes of due process.
(g) An order for support shall include a date on which the current
support obligation terminates. The termination date shall be no earlier than
the date on which the child covered by the order will attain the age of
18. However, if the child will not graduate from high school until after
attaining the age of 18, then the termination date shall be no earlier than the
earlier of the date on which the child's high school graduation will occur or
the date on which the child will attain the age of 19. The order for support
shall state that the termination date does not apply to any arrearage that may
remain unpaid on that date. Nothing in this subsection shall be construed to
prevent the court from modifying the order or terminating the order in the
event the child is otherwise emancipated.
(g-5) If there is an unpaid arrearage or delinquency (as those terms are defined in the Income Withholding for Support Act) equal to at least one month's support obligation on the termination date stated in the order for support or, if there is no termination date stated in the order, on the date the child attains the age of majority or is otherwise emancipated, the periodic amount required to be paid for current support of that child immediately prior to that date shall automatically continue to be an obligation, not as current support but as periodic payment toward satisfaction of the unpaid arrearage or delinquency. That periodic payment shall be in addition to any periodic payment previously required for satisfaction of the arrearage or delinquency. The total periodic amount to be paid toward satisfaction of the arrearage or delinquency may be enforced and collected by any method provided by law for enforcement and collection of child support, including but not limited to income withholding under the Income Withholding for Support Act. Each order for support entered or modified on or after the effective date of this amendatory Act of the 93rd General Assembly must contain a statement notifying the parties of the requirements of this subsection. Failure to include the statement in the order for support does not affect the validity of the order or the operation of the provisions of this subsection with regard to the order. This subsection shall not be construed to prevent or affect the establishment or modification of an order for support of a minor child or the establishment or modification of an order for support of a non-minor child or educational expenses under Section 513 of this Act.
(h) An order entered under this Section shall include a provision requiring
the obligor to report to the obligee and to the clerk of court within 10 days
each time the obligor obtains new employment, and each time the obligor's
employment is terminated for any reason. The report shall be in writing and
shall, in the case of new employment, include the name and address of the new
employer. Failure to report new employment or the termination of current
employment, if coupled with nonpayment of support for a period in excess of 60
days, is indirect criminal contempt. For any obligor arrested for failure to
report new employment bond shall be set in the amount of the child support that
should have been paid during the period of unreported employment. An order
entered under this Section shall also include a provision requiring the obligor
and obligee parents to advise each other of a change in residence within 5 days
of the change except when the court finds that the physical, mental, or
emotional health of a party or that of a child, or both, would be
seriously endangered by disclosure of the party's address.
(i) The court does not lose the powers of contempt, driver's license
suspension, or other child support enforcement mechanisms, including, but
not limited to, criminal prosecution as set forth in this Act, upon the
emancipation of the minor child or children.
(Source: P.A. 97-186, eff. 7-22-11; 97-608, eff. 1-1-12; 97-813, eff. 7-13-12; 97-878, eff. 8-2-12; 97-941, eff. 1-1-13; 97-1029, eff. 1-1-13; 98-463, eff. 8-16-13; 98-961, eff. 1-1-15.)
|
(750 ILCS 5/505.1) (from Ch. 40, par. 505.1)
Sec. 505.1. (a) Whenever it is determined in a proceeding to establish
or
enforce a child support or maintenance obligation that the person owing a
duty of support is unemployed, the court may order the person to seek
employment and report periodically to the court with a diary, listing or
other memorandum of his or her efforts in accordance with such order.
Additionally, the court may order the unemployed person to report to the
Department of Employment Security for job search services or to make
application with the local Job Training Partnership Act provider
for
participation in job search, training or work programs and where the duty
of support is owed to a child receiving child support enforcement
services under Article X of
the Illinois Public Aid Code, as amended, the court may order the
unemployed person to report to the Department of Healthcare and Family Services for
participation in job search, training or work programs established under
Section 9-6 and Article IXA of that Code.
(b) Whenever it is determined that a person owes past-due support for
a child or for a child and the parent with whom the child is living, and the
child is receiving assistance under the Illinois Public Aid Code,
the court shall order at the request of the
Department of Healthcare and Family Services:
(1) that the person pay the past-due support in
| | accordance with a plan approved by the court; or
|
|
(2) if the person owing past-due support is
| | unemployed, is subject to such a plan, and is not incapacitated, that the person participate in such job search, training, or work programs established under Section 9-6 and Article IXA of the Illinois Public Aid Code as the court deems appropriate.
|
|
(Source: P.A. 95-331, eff. 8-21-07.)
|
(750 ILCS 5/505.2) (from Ch. 40, par. 505.2)
Sec. 505.2. Health insurance.
(a) Definitions. As used in this Section:
(1) "Obligee" means the individual to whom the duty
| | of support is owed or the individual's legal representative.
|
|
(2) "Obligor" means the individual who owes a duty of
| | support pursuant to an order for support.
|
|
(3) "Public office" means any elected official or any
| | State or local agency which is or may become responsible by law for enforcement of, or which is or may become authorized to enforce, an order for support, including, but not limited to: the Attorney General, the Illinois Department of Healthcare and Family Services, the Illinois Department of Human Services, the Illinois Department of Children and Family Services, and the various State's Attorneys, Clerks of the Circuit Court and supervisors of general assistance.
|
|
(4) "Child" shall have the meaning ascribed to it in
| |
(b) Order.
(1) Whenever the court establishes, modifies or
| | enforces an order for child support or for child support and maintenance the court shall include in the order a provision for the health care coverage of the child which shall, upon request of the obligee or Public Office, require that any child covered by the order be named as a beneficiary of any health insurance plan that is available to the obligor through an employer or labor union or trade union. If the court finds that such a plan is not available to the obligor, or that the plan is not accessible to the obligee, the court may, upon request of the obligee or Public Office, order the obligor to name the child covered by the order as a beneficiary of any health insurance plan that is available to the obligor on a group basis, or as a beneficiary of an independent health insurance plan to be obtained by the obligor, after considering the following factors:
|
|
(A) the medical needs of the child;
(B) the availability of a plan to meet those
| |
(C) the cost of such a plan to the obligor.
(2) If the employer or labor union or trade union
| | offers more than one plan, the order shall require the obligor to name the child as a beneficiary of the plan in which the obligor is enrolled.
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|
(3) Nothing in this Section shall be construed to
| | limit the authority of the court to establish or modify a support order to provide for payment of expenses, including deductibles, copayments and any other health expenses, which are in addition to expenses covered by an insurance plan of which a child is ordered to be named a beneficiary pursuant to this Section.
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|
(c) Implementation and enforcement.
(1) When the court order requires that a minor child
| | be named as a beneficiary of a health insurance plan, other than a health insurance plan available through an employer or labor union or trade union, the obligor shall provide written proof to the obligee or Public Office that the required insurance has been obtained, or that application for insurability has been made, within 30 days of receiving notice of the court order. Unless the obligor was present in court when the order was issued, notice of the order shall be given pursuant to Illinois Supreme Court Rules. If an obligor fails to provide the required proof, he may be held in contempt of court.
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|
(2) When the court requires that a child be named as
| | a beneficiary of a health insurance plan available through an employer or labor union or trade union, the court's order shall be implemented in accordance with the Income Withholding for Support Act.
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|
(2.5) The court shall order the obligor to reimburse
| | the obligee for 50% of the premium for placing the child on his or her health insurance policy if:
|
| (i) a health insurance plan is not available to
| | the obligor through an employer or labor union or trade union and the court does not order the obligor to cover the child as a beneficiary of any health insurance plan that is available to the obligor on a group basis or as a beneficiary of an independent health insurance plan to be obtained by the obligor; or
|
| (ii) the obligor does not obtain medical
| | insurance for the child within 90 days of the date of the court order requiring the obligor to obtain insurance for the child.
|
| The provisions of subparagraph (i) of paragraph 2.5
| | of subsection (c) shall be applied, unless the court makes a finding that to apply those provisions would be inappropriate after considering all of the factors listed in paragraph 2 of subsection (a) of Section 505.
|
| The court may order the obligor to reimburse the
| | obligee for 100% of the premium for placing the child on his or her health insurance policy.
|
| (d) Failure to maintain insurance. The dollar amount of the premiums
for court-ordered health insurance, or that portion of the premiums for
which the obligor is responsible in the case of insurance provided under a
group health insurance plan through an employer or labor union or trade
union where the employer or labor union or trade union pays a portion of the
premiums, shall be considered an additional child support obligation owed by
the obligor. Whenever the obligor fails to provide or maintain health
insurance pursuant to an order for support, the obligor shall be liable to the
obligee for the dollar amount of the premiums which were not paid, and shall
also be liable for all medical expenses incurred by the child which
would
have been paid or reimbursed by the health insurance which the obligor was
ordered to provide or maintain. In addition, the obligee may petition the court
to modify the order based solely on the obligor's failure to pay the premiums
for court-ordered health insurance.
(e) Authorization for payment. The signature of the obligee is a valid
authorization to the insurer to process a claim for payment under the
insurance plan to the provider of the health care services or to the obligee.
(f) Disclosure of information. The obligor's employer or labor union
or trade union shall disclose to the obligee or Public Office, upon request,
information concerning any dependent coverage plans which would be made
available to a new employee or labor union member or trade union member. The
employer or labor union or trade union shall disclose such information whether
or not a court order for medical support has been entered.
(g) Employer obligations. If a parent is required by an
order for support to provide coverage for a child's health care
expenses and if that coverage is available to the parent through an employer
who does business in this State, the employer must do all of the
following upon receipt of a copy of the order of support or order for
withholding:
(1) The employer shall, upon the parent's request,
| | permit the parent to include in that coverage a child who is otherwise eligible for that coverage, without regard to any enrollment season restrictions that might otherwise be applicable as to the time period within which the child may be added to that coverage.
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|
(2) If the parent has health care coverage through
| | the employer but fails to apply for coverage of the child, the employer shall include the child in the parent's coverage upon application by the child's other parent or the Department of Healthcare and Family Services.
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|
(3) The employer may not eliminate any child from the
| | parent's health care coverage unless the employee is no longer employed by the employer and no longer covered under the employer's group health plan or unless the employer is provided with satisfactory written evidence of either of the following:
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|
(A) The order for support is no longer in effect.
(B) The child is or will be included in a
| | comparable health care plan obtained by the parent under such order that is currently in effect or will take effect no later than the date the prior coverage is terminated.
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The employer may eliminate a child from a parent's
| | health care plan obtained by the parent under such order if the employer has eliminated dependent health care coverage for all of its employees.
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(Source: P.A. 94-923, eff. 1-1-07; 95-331, eff. 8-21-07.)
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(750 ILCS 5/505.3)
Sec. 505.3. Information to State Case Registry.
(a) In this Section:
"Order for support", "obligor", "obligee", and "business day" are defined as
set forth in the
Income Withholding for Support Act.
"State Case Registry" means the State Case Registry established under Section
10-27 of the Illinois Public Aid Code.
(b) Each order for support entered or modified by the circuit court under
this Act shall require that the obligor and obligee (i) file with the clerk of
the
circuit court the information required by this Section (and any other
information required under Title IV, Part D of the Social Security Act or by
the
federal Department of Health and Human Services) at the time of
entry or modification of the order for support and (ii) file updated
information with the clerk within 5 business days of any change.
Failure of the obligor or obligee to file or update the required information
shall be
punishable as in cases of contempt. The failure shall not prevent the court
from entering
or modifying the order for support, however.
(c) The obligor shall file the following information: the obligor's name,
date of birth, social security number, and mailing address.
If either the obligor or the obligee receives child support enforcement
services from the Department
of Healthcare and Family Services
under Article X of
the Illinois Public Aid
Code, the obligor
shall also file the following information: the obligor's telephone number,
driver's license number, and residential address (if different from the
obligor's mailing address), and the name, address, and telephone number of the
obligor's employer or employers.
(d) The obligee shall file the following information:
(1) The names of the obligee and the child or
| | children covered by the order for support.
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(2) The dates of birth of the obligee and the child
| | or children covered by the order for support.
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(3) The social security numbers of the obligee and
| | the child or children covered by the order for support.
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(4) The obligee's mailing address.
(e) In cases in which the obligee receives child support enforcement
services from the Department
of Healthcare and Family Services
under Article X of the Illinois Public
Aid Code, the order for support shall (i) require that the obligee file the
information required under subsection (d) with the Department of Healthcare and Family Services for inclusion in the State Case Registry, rather
than file the information with the clerk, and (ii) require that the obligee
include the following additional information:
(1) The obligee's telephone and driver's license
| |
(2) The obligee's residential address, if different
| | from the obligee's mailing address.
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(3) The name, address, and telephone number of the
| | obligee's employer or employers.
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The order for support shall also require that the obligee update
the information filed with the Department of Healthcare and Family Services within 5
business days of any change.
(f) The clerk shall provide the information filed under this Section,
together with the court docket number and county in which the order for support
was entered, to the State Case Registry within 5 business days after receipt of
the information.
(g) In a case in which a party is receiving child support enforcement
services under Article X of the Illinois Public Aid Code, the clerk shall
provide the following additional information to the State Case Registry within
5 business days after entry or modification of an order for support or request
from the Department of Healthcare and Family Services:
(1) The amount of monthly or other periodic support
| | owed under the order for support and other amounts, including arrearage, interest, or late payment penalties and fees, due or overdue under the order.
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(2) Any such amounts that have been received by the
| | clerk, and the distribution of those amounts by the clerk.
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(h) Information filed by the obligor and obligee under this Section that is
not specifically required to be included in the body of an order for support
under other laws is not a public record and shall be treated as
confidential and subject to disclosure only in accordance with the provisions
of this Section, Section 10-27 of the Illinois Public Aid Code, and Title IV,
Part D of the Social Security Act.
(Source: P.A. 95-331, eff. 8-21-07.)
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(750 ILCS 5/506) (from Ch. 40, par. 506)
Sec. 506. Representation of child.
(a) Duties. In any proceedings involving the support, custody,
visitation, education, parentage, property interest, or general welfare of a
minor or dependent child, the court may, on its own motion or that of any
party, appoint
an attorney to serve in one of the following capacities to address the issues the court delineates:
(1) Attorney. The attorney shall provide independent
| | legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.
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(2) Guardian ad litem. The guardian ad litem shall
| | testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.
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(3) Child representative. The child representative
| | shall advocate what the child representative finds to be in the best interests of the child after reviewing the facts and circumstances of the case. The child representative shall meet with the child and the parties, investigate the facts of the case, and encourage settlement and the use of alternative forms of dispute resolution. The child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the powers of investigation as does a guardian ad litem. The child representative shall consider, but not be bound by, the expressed wishes of the child. A child representative shall have received training in child advocacy or shall possess such experience as determined to be equivalent to such training by the chief judge of the circuit where the child representative has been appointed. The child representative shall not disclose confidential communications made by the child, except as required by law or by the Rules of Professional Conduct. The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments. The child representative shall disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall be served upon all counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall not be considered evidence. The court and the parties may consider the position of the child representative for purposes of a settlement conference.
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(a-3) Additional appointments. During the proceedings the court may appoint an additional attorney to
serve in the capacity described in subdivision (a)(1) or an additional attorney to serve in another of the capacities described in subdivision (a)(2) or
(a)(3) on
the court's own motion or that of a party only for good cause shown and when the
reasons for the additional appointment are set forth in specific findings.
(a-5) Appointment considerations. In deciding whether to make an appointment of an attorney for the minor child, a guardian ad litem, or a child representative, the court shall consider the nature and adequacy of the evidence to be presented by the parties and the availability of other methods of obtaining information, including social service organizations and evaluations by mental health professions, as well as resources for payment.
In no event is this Section intended to or designed to abrogate the decision making power of the trier of fact. Any appointment made under this Section is not intended to nor should it serve to place any appointed individual in the role of a surrogate judge.
(b) Fees and costs. The court shall enter an order as appropriate for
costs, fees, and disbursements, including a retainer, when the attorney,
guardian ad litem, or child's representative is appointed. Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90-day period thereafter during the course of his or her representation, a detailed invoice for services rendered with a copy being sent to each party. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary. Any order approving the fees shall require payment by either or both parents, by any
other party or source, or from the marital estate or the child's separate
estate.
The court may not order payment by the Department of Healthcare and Family Services
in cases in which the Department is providing child support
enforcement services
under Article X of the Illinois Public Aid Code. Unless otherwise ordered by
the
court at the time fees and costs are
approved, all fees and costs payable to an attorney, guardian ad litem, or
child representative under this Section are by implication deemed to be in
the nature of support of the child and are within the exceptions to discharge
in bankruptcy under 11 U.S.C.A. 523. The provisions of Sections 501 and 508 of
this Act shall apply to fees and costs for attorneys appointed under this
Section.
(Source: P.A. 94-640, eff. 1-1-06; 95-331, eff. 8-21-07.)
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(750 ILCS 5/507) (from Ch. 40, par. 507)
Sec. 507. Payment of maintenance or support to court.
(a) In actions instituted under this Act, the court shall order that
maintenance and support payments be made to the clerk of court as trustee for
remittance to the person entitled to receive the payments. However, the court
in its discretion may direct otherwise where circumstances so warrant.
(b) The clerk of court shall maintain records listing the amount of
payments, the date payments are required to be made and the names and
addresses of the parties affected by the order. For those cases in which
support is payable to the clerk of the circuit court for transmittal to
the Department of Healthcare and Family Services (formerly Illinois Department of Public Aid) by order of the court or upon
notification of the Department of Healthcare and Family Services (formerly
Illinois Department of Public Aid), and the
Department collects support by assignment, offset, withholding,
deduction or other process permitted by law, the Department shall
notify the clerk of the date and amount of such collection. Upon notification,
the clerk shall record the collection on the payment record for the case.
(c) The parties affected by the order shall inform the clerk of
court of any change of address or of other condition that may affect the
administration of the order.
(d) The provisions of this Section shall not apply to cases that come
under the provisions of Sections 709 through 712.
(e) To the extent the provisions of this Section are inconsistent with the
requirements pertaining to the State Disbursement Unit under Section 507.1 of
this Act and Section 10-26 of the Illinois Public Aid Code, the requirements
pertaining to the State Disbursement Unit shall apply.
(Source: P.A. 94-88, eff. 1-1-06; 95-331, eff. 8-21-07.)
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(750 ILCS 5/507.1)
Sec. 507.1. Payment of Support to State Disbursement Unit.
(a) As used in this Section:
"Order for support", "obligor", "obligee", and "payor" mean those terms as
defined in the Income Withholding for Support Act, except that "order for
support" shall not mean orders providing for spousal maintenance under which
there is no child support obligation.
(b) Notwithstanding any other provision of this Act to the contrary, each
order for support entered or modified on or after October 1, 1999 shall require
that support payments be made to the State Disbursement Unit established under
Section 10-26 of the Illinois Public Aid Code if:
(1) a party to the order is receiving child support
| | enforcement services under Article X of the Illinois Public Aid Code; or
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(2) no party to the order is receiving child support
| | enforcement services, but the support payments are made through income withholding.
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(c) Support
payments
shall be made to the State Disbursement Unit if:
(1) the order for support was entered before October
| | 1, 1999, and a party to the order is receiving child support enforcement services under Article X of the Illinois Public Aid Code; or
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(2) no party to the order is receiving child support
| | enforcement services, and the support payments are being made through income withholding.
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(c-5) If no party to the order is receiving child support
enforcement services under Article X of the Illinois Public Aid Code, and
the support
payments are not made through income withholding, then support payments shall
be made as directed by the order for support.
(c-10) At any time, and notwithstanding the existence of an order
directing payments
to be made elsewhere, the Department of Healthcare and Family Services may provide notice to the
obligor and, where applicable, to the obligor's payor:
(1) to make support payments to the State
| |
(A) a party to the order for support is receiving
| | child support enforcement services under Article X of the Illinois Public Aid Code; or
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(B) no party to the order for support is
| | receiving child support enforcement services under Article X of the Illinois Public Aid Code, but the support payments are made through income withholding; or
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(2) to make support payments to the State
| | Disbursement Unit of another state upon request of another state's Title IV-D child support enforcement agency, in accordance with the requirements of Title IV, Part D of the Social Security Act and regulations promulgated under that Part D.
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The Department of Healthcare and Family Services
shall provide a copy of the notice to the
obligee and to the clerk of the circuit court.
(c-15) Within 15 days after the effective date of this amendatory Act of the
91st General Assembly, the clerk of the circuit court shall provide written
notice to the obligor to make payments directly to the clerk of the circuit
court if no party to the order is receiving child support
enforcement services
under Article X of the Illinois Public Aid Code, the support payments are not
made through income withholding, and the order for support requires support
payments to be made directly to the clerk of the circuit court. The clerk
shall provide a copy of the notice to the obligee.
(c-20) If the State Disbursement Unit receives a support payment that was
not
appropriately
made to the Unit under this Section, the Unit shall immediately return the
payment to the
sender, including, if possible, instructions detailing where to send the
support payment.
(d) The notices under subsections (c-10) and
(c-15) may be sent by ordinary mail,
certified mail, return receipt requested, facsimile transmission, or other
electronic process, or may be served upon the obligor or payor using any method
provided by law for service of a summons.
(Source: P.A. 95-331, eff. 8-21-07.)
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(750 ILCS 5/508) (from Ch. 40, par. 508)
Sec. 508. Attorney's Fees; Client's Rights and Responsibilities Respecting
Fees and
Costs.
(a) The court from time to time, after due notice and hearing, and after
considering the financial resources of the parties, may order any party to
pay a reasonable amount for his own or the other party's costs and
attorney's fees. Interim attorney's fees and costs may be awarded from the
opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501 and in any other proceeding under this subsection. At the
conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney's fees and costs may be
awarded from the opposing party in accordance with subsection (j) of Section
503 and in any other proceeding under this subsection. Fees and costs may be awarded in any proceeding to counsel from a former client in
accordance with subsection (c) of
this Section.
Awards may be made in connection with the following:
(1) The maintenance or defense of any proceeding
| |
(2) The enforcement or modification of any order or
| |
(3) The defense of an appeal of any order or judgment
| | under this Act, including the defense of appeals of post-judgment orders.
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(3.1) The prosecution of any claim on appeal (if the
| | prosecuting party has substantially prevailed).
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(4) The maintenance or defense of a petition brought
| | under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act.
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(5) The costs and legal services of an attorney
| | rendered in preparation of the commencement of the proceeding brought under this Act.
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(6) Ancillary litigation incident to, or reasonably
| | connected with, a proceeding under this Act.
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All petitions for or relating to interim fees and costs under this subsection shall be accompanied by an affidavit as to the factual basis for the relief requested and all hearings relative to any such petition shall be scheduled expeditiously by the court. All provisions for contribution under this subsection shall also be subject to paragraphs (3), (4), and (5) of subsection (j) of Section 503.
The court may order that the award of attorney's fees and costs
(including an interim or contribution award) shall be paid directly to the
attorney, who may enforce the order in his or her name, or that it shall be
paid to
the appropriate party. Judgment may be entered and enforcement had
accordingly. Except as otherwise provided in subdivision (e)(1) of this
Section, subsection (c) of this Section
is exclusive as to the right of any counsel
(or
former counsel) of record to petition a court for an award and judgment for
final fees and costs during the pendency of a proceeding under this Act.
(b) In every proceeding for the enforcement of an order or judgment
when the court finds that the failure to comply with the order or judgment
was without compelling cause or justification, the court shall order the
party against
whom the proceeding is brought to pay promptly the costs and reasonable
attorney's
fees of the prevailing party.
If non-compliance is with respect to a discovery order, the non-compliance is
presumptively without compelling cause or justification, and the presumption
may only be rebutted by clear and convincing evidence. If at any time a court
finds that a hearing under this Act was precipitated or conducted for any
improper purpose, the court shall allocate fees and costs of all parties for
the hearing to the party or counsel found to have acted improperly. Improper
purposes include, but are not limited to, harassment, unnecessary
delay, or other acts needlessly increasing the cost of litigation.
(c) Final hearings for attorney's fees and costs against an attorney's own
client, pursuant to a Petition for Setting Final Fees and Costs of either a
counsel or a client, shall be governed by the following:
(1) No petition of a counsel of record may be filed
| | against a client unless the filing counsel previously has been granted leave to withdraw as counsel of record or has filed a motion for leave to withdraw as counsel. On receipt of a petition of a client under this subsection (c), the counsel of record shall promptly file a motion for leave to withdraw as counsel. If the client and the counsel of record agree, however, a hearing on the motion for leave to withdraw as counsel filed pursuant to this subdivision (c)(1) may be deferred until completion of any alternative dispute resolution procedure under subdivision (c)(4). As to any Petition for Setting Final Fees and Costs against a client or counsel over whom the court has not obtained jurisdiction, a separate summons shall issue. Whenever a separate summons is not required, original notice as to a Petition for Setting Final Fees and Costs may be given, and documents served, in accordance with Illinois Supreme Court Rules 11 and 12.
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(2) No final hearing under this subsection (c) is
| | permitted unless: (i) the counsel and the client had entered into a written engagement agreement at the time the client retained the counsel (or reasonably soon thereafter) and the agreement meets the requirements of subsection (f); (ii) the written engagement agreement is attached to an affidavit of counsel that is filed with the petition or with the counsel's response to a client's petition; (iii) judgment in any contribution hearing on behalf of the client has been entered or the right to a contribution hearing under subsection (j) of Section 503 has been waived; (iv) the counsel has withdrawn as counsel of record; and (v) the petition seeks adjudication of all unresolved claims for fees and costs between the counsel and the client. Irrespective of a Petition for Setting Final Fees and Costs being heard in conjunction with an original proceeding under this Act, the relief requested under a Petition for Setting Final Fees and Costs constitutes a distinct cause of action. A pending but undetermined Petition for Setting Final Fees and Costs shall not affect appealability of any judgment or other adjudication in the original proceeding.
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(3) The determination of reasonable attorney's fees
| | and costs either under this subsection (c), whether initiated by a counsel or a client, or in an independent proceeding for services within the scope of subdivisions (1) through (5) of subsection (a), is within the sound discretion of the trial court. The court shall first consider the written engagement agreement and, if the court finds that the former client and the filing counsel, pursuant to their written engagement agreement, entered into a contract which meets applicable requirements of court rules and addresses all material terms, then the contract shall be enforceable in accordance with its terms, subject to the further requirements of this subdivision (c)(3). Before ordering enforcement, however, the court shall consider the performance pursuant to the contract. Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary. Quantum meruit principles shall govern any award for legal services performed that is not based on the terms of the written engagement agreement (except that, if a court expressly finds in a particular case that aggregate billings to a client were unconscionably excessive, the court in its discretion may reduce the award otherwise determined appropriate or deny fees altogether).
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(4) No final hearing under this subsection (c) is
| | permitted unless any controversy over fees and costs (that is not otherwise subject to some form of alternative dispute resolution) has first been submitted to mediation, arbitration, or any other court approved alternative dispute resolution procedure, except as follows:
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(A) In any circuit court for a single county with
| | a population in excess of 1,000,000, the requirement of the controversy being submitted to an alternative dispute resolution procedure is mandatory unless the client and the counsel both affirmatively opt out of such procedures; or
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(B) In any other circuit court, the requirement
| | of the controversy being submitted to an alternative dispute resolution procedure is mandatory only if neither the client nor the counsel affirmatively opts out of such procedures.
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After completion of any such procedure (or after one
| | or both sides has opted out of such procedures), if the dispute is unresolved, any pending motion for leave to withdraw as counsel shall be promptly granted and a final hearing under this subsection (c) shall be expeditiously set and completed.
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(5) A petition (or a praecipe for fee hearing without
| | the petition) shall be filed no later than the end of the period in which it is permissible to file a motion pursuant to Section 2-1203 of the Code of Civil Procedure. A praecipe for fee hearing shall be dismissed if a Petition for Setting Final Fees and Costs is not filed within 60 days after the filing of the praecipe. A counsel who becomes a party by filing a Petition for Setting Final Fees and Costs, or as a result of the client filing a Petition for Setting Final Fees and Costs, shall not be entitled to exercise the right to a substitution of a judge without cause under subdivision (a)(2) of Section 2-1001 of the Code of Civil Procedure. Each of the foregoing deadlines for the filing of a praecipe or a petition shall be:
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(A) tolled if a motion is filed under Section 2-1203
| | of the Code of Civil Procedure, in which instance a petition (or a praecipe) shall be filed no later than 30 days following disposition of all Section 2-1203 motions; or
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| (B) tolled if a notice of appeal is filed, in which
| | instance a petition (or praecipe) shall be filed no later than 30 days following the date jurisdiction on the issue appealed is returned to the trial court.
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| If a praecipe has been timely filed, then by timely filed written stipulation between counsel and client (or former client), the deadline for the filing of a petition may be extended for a period of up to one year.
(d) A consent judgment, in favor of a current counsel of record against his
or her own client for a specific amount in a marital settlement agreement,
dissolution judgment, or any other instrument involving the other litigant, is
prohibited. A consent judgment between client and counsel, however, is
permissible if it is entered pursuant to a verified petition for entry of
consent judgment, supported by an affidavit of the counsel of record that
includes the counsel's representation that the client has been provided an itemization of the billing or billings to the client, detailing
hourly costs, time spent, and tasks performed, and by an affidavit of the
client acknowledging receipt of that documentation, awareness
of the right to a hearing, the right to be represented by counsel (other than
counsel to whom the consent judgment is in favor), and the right to be present
at
the time of presentation of the petition, and agreement to the terms of the
judgment. The petition may be filed at any time during which it is permissible
for counsel of record to file a petition (or a praecipe) for a final fee
hearing, except that no such petition for entry of consent judgment may be
filed before adjudication (or waiver) of the client's right to contribution
under subsection (j) of Section 503 or filed after the filing of a
petition (or a praecipe) by counsel of record for a fee hearing under
subsection (c) if the petition (or praecipe) remains pending. No consent
security arrangement between a client and a counsel of record, pursuant to
which assets of a client are collateralized to secure payment of legal fees or
costs, is permissible unless approved in advance by the court as being
reasonable under the circumstances.
(e) Counsel may pursue an award and judgment against a former client for
legal
fees and costs in an independent proceeding in the following circumstances:
(1) While a case under this Act is still pending, a
| | former counsel may pursue such an award and judgment at any time subsequent to 90 days after the entry of an order granting counsel leave to withdraw; and
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(2) After the close of the period during which a
| | petition (or praecipe) may be filed under subdivision (c)(5), if no such petition (or praecipe) for the counsel remains pending, any counsel or former counsel may pursue such an award and judgment in an independent proceeding.
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In an independent proceeding, the prior applicability of this Section
shall in no way be deemed to have diminished any other right of any counsel (or
former counsel) to pursue an award and judgment for legal fees and costs on the
basis of remedies that may otherwise exist under applicable law; and the limitations period for breach of contract shall apply. In an
independent proceeding under subdivision (e)(1) in which the former counsel had
represented a former client in a dissolution case that is still pending, the former
client may bring
in his or her spouse as a third-party defendant, provided on or before the
final date for filing a petition (or praecipe) under subsection (c), the party
files an appropriate third-party complaint under Section 2-406 of the Code of
Civil Procedure. In any such case, any judgment later obtained by the
former counsel shall be against both spouses or ex-spouses, jointly and
severally (except that, if a hearing under subsection (j) of Section 503 has
already been concluded and the court hearing the contribution issue has imposed
a percentage allocation between the parties as to
fees and costs otherwise being adjudicated in the independent proceeding, the
allocation
shall be applied without deviation by the court in the independent proceeding
and a separate judgment shall be entered against each spouse for the
appropriate
amount). After the period for the commencement of a proceeding under
subsection (c), the provisions of this Section (other than the standard set
forth in subdivision (c)(3) and the terms respecting consent security
arrangements in subsection (d) of this Section 508) shall be inapplicable.
The changes made by this amendatory Act of the 94th General Assembly are declarative of existing law.
(f) Unless the Supreme Court by rule addresses the matters set out in this
subsection (f), a written engagement agreement within the scope
of subdivision (c)(2) shall have appended to it verbatim the following
Statement:
"STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement agreement, prepared
by the counsel, shall clearly address the objectives of representation and
detail the fee arrangement, including all material terms. If fees are to be
based on criteria apart from, or in addition to, hourly rates, such criteria
(e.g., unique time demands and/or utilization of unique expertise) shall be
delineated. The client shall receive a copy of the written engagement
agreement and any additional clarification requested and is advised not to
sign any such agreement which the client finds to be unsatisfactory or does
not understand.
(2) REPRESENTATION. Representation will commence upon the signing of the
written engagement agreement. The counsel will provide competent
representation, which requires legal knowledge, skill, thoroughness and
preparation to handle those matters set forth in the written engagement
agreement. Once employed, the counsel will act with reasonable diligence and
promptness, as well as use his best efforts on behalf of the client, but he
cannot guarantee results. The counsel will abide by the client's decision
concerning the objectives of representation, including whether or not to accept
an offer of settlement, and will endeavor to explain any matter to the extent
reasonably necessary to permit the client to make informed decisions regarding
representation. During the course of representation and afterwards, the
counsel
may not use or reveal a client's confidence or secrets, except as required or
permitted by law.
(3) COMMUNICATION. The counsel will keep the client reasonably informed
about the status of representation and will promptly respond to reasonable
requests for information, including any reasonable request for an estimate
respecting future costs of the representation or an appropriate portion of it.
The client shall be truthful in all discussions with the counsel and provide
all information or documentation required to enable the counsel to provide
competent representation. During representation, the client is entitled to
receive all pleadings and substantive documents prepared on behalf of the
client and every document received from any other counsel of record. At the
end of the representation and on written request from the client, the counsel
will return to the client all original documents and exhibits. In the event
that the counsel withdraws from representation, or is discharged by the client,
the counsel will turn over to the substituting counsel (or, if no
substitutions, to the client) all original documents and exhibits together with
complete copies of all pleadings and discovery within thirty (30) days of the
counsel's withdrawal or discharge.
(4) ETHICAL CONDUCT. The counsel cannot be required to engage in conduct
which is illegal, unethical, or fraudulent. In matters involving minor
children, the counsel may refuse to engage in conduct which, in the counsel's
professional judgment, would be contrary to the best interest of the client's
minor child or children. A counsel who cannot ethically abide by his client's
directions shall be allowed to withdraw from representation.
(5) FEES. The counsel's fee for services may not be contingent upon the
securing of a dissolution of marriage, upon obtaining custody, or be based upon
the amount of maintenance, child support, or property settlement received,
except as specifically permitted under Supreme Court rules. The
counsel may not require a non-refundable retainer fee, but must remit back any
overpayment at the end of the representation. The counsel may enter into a
consensual security arrangement with the client whereby assets of the client
are pledged to secure payment of legal fees or costs, but only if the counsel
first obtains approval of the Court. The counsel will prepare and provide the
client with an itemized billing statement detailing hourly rates (and/or other
criteria), time spent, tasks performed, and costs incurred on a regular basis,
at least quarterly. The client should review each billing statement promptly
and address any objection or error in a timely manner. The client will not be
billed for time spent to explain or correct a billing statement. If an
appropriately detailed written estimate is submitted to a client as to future
costs for a counsel's representation or a portion of the contemplated services
(i.e., relative to specific steps recommended by the counsel in the estimate)
and, without objection from the client, the counsel then performs the
contemplated services, all such services are presumptively reasonable and
necessary, as well as to be deemed pursuant to the client's direction. In an
appropriate case, the client may pursue contribution to his or her fees and
costs from the other party.
(6) DISPUTES. The counsel-client relationship is regulated by the Illinois
Rules of Professional Conduct (Article VIII of the Illinois Supreme Court
Rules), and any dispute shall be reviewed under the terms of such Rules."
(g) The changes to this Section 508 made by this amendatory Act of 1996
apply to cases pending on or after June 1, 1997, except as follows:
(1) Subdivisions (c)(1) and (c)(2) of this Section | | 508, as well as provisions of subdivision (c)(3) of this Section 508 pertaining to written engagement agreements, apply only to cases filed on or after June 1, 1997.
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(2) The following do not apply in the case of a
| | hearing under this Section that began before June 1, 1997:
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(A) Subsection (c-1) of Section 501.
(B) Subsection (j) of Section 503.
(C) The changes to this Section 508 made by this
| | amendatory Act of 1996 pertaining to the final setting of fees.
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(Source: P.A. 96-583, eff. 1-1-10.)
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(750 ILCS 5/509) (from Ch. 40, par. 509)
Sec. 509.
Independence of Provisions of Judgment or
Temporary Order.) If a party fails to comply with a provision
of a judgment, order or injunction, the obligation of the other
party to make payments for support or maintenance or to permit
visitation is not suspended; but he may move the court to grant
an appropriate order.
(Source: P.A. 80-923.)
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(750 ILCS 5/510) (from Ch. 40, par. 510)
Sec. 510. Modification and termination of provisions for
maintenance, support, educational expenses, and property disposition.
(a) Except as otherwise provided in paragraph (f) of Section 502 and
in subsection (b), clause (3) of Section 505.2, the provisions of any
judgment respecting maintenance or support may be modified only as to
installments accruing subsequent to due notice by the moving party of the
filing of the motion for modification. An order for child
support may be modified as follows:
(1) upon a showing of a substantial change in
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(2) without the necessity of showing a substantial
| | change in circumstances, as follows:
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(A) upon a showing of an inconsistency of at
| | least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or
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(B) upon a showing of a need to provide for the
| | health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child's health care needs.
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The provisions of subparagraph (a)(2)(A) shall apply only
in cases in which a party is receiving child support
enforcement services from the Department of Healthcare and Family Services under
Article X of the Illinois Public Aid Code, and only when at least 36
months have elapsed since the order for child support was entered or last
modified.
(a-5) An order for maintenance may be modified or terminated only upon a
showing of a substantial change in circumstances. In all such proceedings, as
well as in proceedings in which maintenance is being reviewed, the court shall
consider the applicable factors set forth in subsection (a) of Section 504 and
the following factors:
(1) any change in the employment status of either
| | party and whether the change has been made in good faith;
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(2) the efforts, if any, made by the party receiving
| | maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;
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(3) any impairment of the present and future earning
| | capacity of either party;
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(4) the tax consequences of the maintenance payments
| | upon the respective economic circumstances of the parties;
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(5) the duration of the maintenance payments
| | previously paid (and remaining to be paid) relative to the length of the marriage;
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(6) the property, including retirement benefits,
| | awarded to each party under the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage and the present status of the property;
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(7) the increase or decrease in each party's income
| | since the prior judgment or order from which a review, modification, or termination is being sought;
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(8) the property acquired and currently owned by each
| | party after the entry of the judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of invalidity of marriage; and
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(9) any other factor that the court expressly finds
| | to be just and equitable.
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(b) The provisions as to property disposition may not be revoked or
modified,
unless the court finds the existence of conditions that justify the
reopening of a judgment under the laws of this State.
(c) Unless otherwise agreed by the parties in a written agreement
set forth in the judgment or otherwise approved by the court, the obligation
to pay future maintenance is terminated upon the death of either party, or
the remarriage of the party receiving maintenance, or if the party
receiving maintenance cohabits with another person on a resident,
continuing conjugal basis. Any obligation of a payor party for premium payments respecting insurance on such party's life imposed under subsection (f) of Section 504 is also terminated on the occurrence of any of the foregoing events, unless otherwise agreed by the parties. Any termination of an obligation for maintenance as a result of the death of the payor party, however, shall be inapplicable to any right of the other party or such other party's designee to receive a death benefit under such insurance on the payor party's life.
(d) Unless otherwise provided in this Act, or as agreed in writing or
expressly
provided in the
judgment, provisions for the support of a child are terminated by emancipation
of the
child, or if the child has attained the age of 18 and is still attending
high school,
provisions for the support of the child are terminated upon the date that the
child
graduates from high school or the date the child attains the age of 19,
whichever is
earlier, but not by the death of a parent obligated to support or educate the
child.
An existing obligation to pay for support
or educational expenses, or both, is not terminated by the death of a
parent. When a parent obligated to pay support or educational
expenses, or both, dies, the amount of support or educational expenses, or
both, may be enforced, modified, revoked or commuted to a lump sum payment,
as equity may require, and that determination may be provided for at the
time of the dissolution of the marriage or thereafter.
(e) The right to petition for support or educational expenses, or both,
under Sections 505 and 513 is not extinguished by the death of a parent.
Upon a petition filed before or after a parent's death, the court may award
sums of money out of the decedent's estate for the child's support or
educational expenses, or both, as equity may require. The time within
which a claim may be filed against the estate of a decedent under Sections
505 and 513 and subsection (d) and this subsection shall be governed by the
provisions of the Probate Act of 1975, as a barrable, noncontingent claim.
(f) A petition to modify or terminate child support, custody, or
visitation shall not delay any child support enforcement litigation or
supplementary proceeding on behalf of the obligee, including, but not limited
to, a petition for a rule to show cause, for non-wage garnishment, or for a
restraining order.
(Source: P.A. 97-608, eff. 1-1-12.)
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(750 ILCS 5/511) (from Ch. 40, par. 511)
Sec. 511.
Procedure.
A judgment of dissolution or of
legal separation or of declaration of invalidity of marriage
may be enforced or modified by order of court pursuant to petition.
(a) Any judgment entered within this State may be enforced
or modified in the judicial circuit wherein such judgment was
entered or last modified by the filing of a petition with
notice mailed to the respondent at his last
known address, or by the issuance of summons to the respondent.
If neither party continues to reside in the county wherein such judgment
was entered or last modified, the court on the motion of either party or on
its own motion may transfer a post-judgment proceeding, including a
proceeding under the Income Withholding for Support Act, to another county or judicial
circuit, as appropriate, where either party resides. If the post-judgment
proceeding is with respect to maintenance or support, any such transfer
shall be to the county or judicial circuit wherein the recipient or
proposed recipient of such maintenance or support resides.
(b) In any post-judgment proceeding to enforce or modify in
one judicial circuit the judgment of another judicial circuit
of this State, the moving party shall commence the proceeding
by filing a petition establishing the judgment and attaching
a copy of the judgment as a part of the petition. The parties
shall continue to be designated as in the original proceeding.
Notice of the filing of the petition shall be mailed to the
clerk of the court wherein the judgment was entered and last
modified in the same manner as notice is mailed when registering
a foreign judgment. Summons shall be served as provided by law.
(c) In any post-judgment proceeding to enforce or modify the
judgment of another state, the moving party shall commence the
proceeding by filing a petition to enroll that judgment,
attaching a copy thereof as a part of the petition and proceed
as provided for in paragraph (b) hereof.
(d) In any post-judgment proceeding to enforce a judgment or order for
payment of maintenance or support, including a proceeding under the Income
Withholding for Support Act, where the terms of such judgment or order provide
that
payments of such maintenance or support are to be made to the clerk of the
court and where neither party continues to reside in the county wherein
such judgment or order was entered or last modified, the court on the
motion of either party or on its own motion may transfer the collection of
the maintenance or support to the clerk of the court in another county or
judicial circuit, as appropriate, wherein the recipient of the maintenance
or support payments resides.
(Source: P.A. 90-673, eff. 1-1-99.)
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(750 ILCS 5/512) (from Ch. 40, par. 512)
Sec. 512.
Post-Judgment Venue.) After 30 days from the entry
of a judgment of dissolution of marriage or the last modification
thereof, any further proceedings to enforce or modify the judgment
shall be as follows:
(a) If the respondent does not then reside within this State,
further proceedings shall be had either in the judicial circuit
wherein the moving party resides or where the judgment was
entered or last modified.
(b) If one or both of the parties then resides in the judicial
circuit wherein the judgment was entered or last modified, further
proceedings shall be had in the judicial circuit that last
exercised jurisdiction in the matter; provided, however, that
the court may in its discretion, transfer matters involving a
change in child custody to the judicial circuit where the minor
or dependent child resides.
(c) If neither party then resides in the judicial circuit
wherein the judgment was entered or last modified, further
proceedings shall be had in that circuit or in the judicial
circuit wherein either party resides or where the respondent
is actively employed; provided, however, that the court may,
in its discretion, transfer matters involving a change in child
custody to the judicial circuit where the minor or dependent child resides.
(d) Objection to venue is waived if not made within such time
as the respondent's answer is due. Counter relief shall be heard
and determined by the court hearing any matter already pending.
(Source: P.A. 80-923.)
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(750 ILCS 5/513) (from Ch. 40, par. 513)
Sec. 513. Support for Non-minor Children and Educational Expenses.
(a) The court may award sums of money out of the property and income of
either or both parties or the estate of a deceased parent, as equity may
require, for the support of the child or children of the parties who have
attained majority in the following instances:
(1) When the child is mentally or physically disabled
| | and not otherwise emancipated, an application for support may be made before or after the child has attained majority.
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(2) The court may also make provision for the
| | educational expenses of the child or children of the parties, whether of minor or majority age, and an application for educational expenses may be made before or after the child has attained majority, or after the death of either parent. The authority under this Section to make provision for educational expenses extends not only to periods of college education or professional or other training after graduation from high school, but also to any period during which the child of the parties is still attending high school, even though he or she attained the age of 19. The educational expenses may include, but shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.
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If educational expenses are ordered payable, each
| | parent and the child shall sign any consents necessary for the educational institution to provide the supporting parent with access to the child's academic transcripts, records, and grade reports. The consents shall not apply to any non-academic records. Failure to execute the required consent may be a basis for a modification or termination of any order entered under this Section. Unless the court specifically finds that the child's safety would be jeopardized, each parent is entitled to know the name of the educational institution the child attends. This amendatory Act of the 95th General Assembly applies to all orders entered under this paragraph (2) on or after the effective date of this amendatory Act of the 95th General Assembly.
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The authority under this Section to make provision
| | for educational expenses, except where the child is mentally or physically disabled and not otherwise emancipated, terminates when the child receives a baccalaureate degree.
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(b) In making awards under paragraph (1) or (2) of subsection (a), or
pursuant to a petition or motion to decrease, modify, or terminate any such
award, the court shall consider all relevant factors that appear reasonable
and necessary, including:
(1) The financial resources of both parents.
(2) The standard of living the child would have
| | enjoyed had the marriage not been dissolved.
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(3) The financial resources of the child.
(4) The child's academic performance.
(Source: P.A. 95-954, eff. 8-29-08.)
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(750 ILCS 5/514) (from Ch. 40, par. 514)
Sec. 514.
Partition of Real Estate.) A court having jurisdiction in an
action for dissolution of marriage may, upon petition of one of the parties,
hear and decide an action for partition subject to the provisions
of Article XVII of the Code of Civil Procedure, as
now or hereafter amended, except as otherwise provided in this Act.
(Source: P.A. 82-783.)
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(750 ILCS 5/515) (from Ch. 40, par. 515)
Sec. 515.
Partition to be Filed in Counties where Real Estate Located.)
A court hearing an action for partition pursuant to Section 514 of this
Act may determine and declare the rights, titles and interests of all parties
to that action without regard to the location within this State of the land
in question. However, if the land in question is located in a county other
than that in which the dissolution of marriage action is commenced, notice
of the action for partition and a certified copy of the judgment of dissolution
of marriage must be filed, by the party filing
the petition for partition, in the office of the recorder or registrar
of titles in each county, other than that where the action is brought, where
any part of the land in question is located.
(Source: P.A. 83-358.)
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(750 ILCS 5/516) (from Ch. 40, par. 516)
Sec. 516. Public Aid collection fee. In all cases instituted by the
Department of Healthcare and Family Services (formerly Illinois
Department of Public Aid) on behalf of a child or spouse, other than one
receiving a grant of financial aid under Article IV of The Illinois Public
Aid Code, on whose behalf an application has been made and approved for
child support enforcement services as provided by Section 10-1 of that
Code, the court
shall impose a collection fee on the individual who owes a child or spouse
support obligation in an amount equal to 10% of the amount so owed as long
as such collection is required by federal law, which fee shall be in addition
to the support obligation. The imposition of such fee
shall be in accordance with provisions of Title IV, Part D, of the Social
Security Act and regulations duly promulgated thereunder. The fee shall
be payable to the clerk of the circuit court for transmittal to the
Department of Healthcare and Family Services and shall continue until child support
enforcement services are
terminated
by that Department.
(Source: P.A. 95-331, eff. 8-21-07.)
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(750 ILCS 5/517)
Sec. 517. Notice of child support enforcement services. The Department of Healthcare and Family Services may provide notice at any time to the parties to an action filed under this Act that child support enforcement services are being provided by the Department under Article X of the Illinois Public Aid Code. The notice shall be sent by regular mail to the party's last known address on file with the clerk of the court or the State Case Registry established under Section 10-27 of the Illinois Public Aid Code. After notice is provided pursuant to this Section, the Department shall be entitled, as if it were a party, to notice of any further proceedings brought in the case. The
Department shall provide the clerk of the court with copies of the notices sent to the parties. The clerk shall file the copies in the court file.
(Source: P.A. 94-88, eff. 1-1-06; 95-331, eff. 8-21-07.)
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