99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB1491

 

Introduced 2/6/2015, by Rep. La Shawn K. Ford

 

SYNOPSIS AS INTRODUCED:
 
305 ILCS 5/10-12.5 new
750 ILCS 5/510  from Ch. 40, par. 510

    Amends the Illinois Public Aid Code, the Unified Code of Corrections, and the Illinois Marriage and Dissolution of Marriage Act. Provides that a person's obligation to pay child support pursuant to a court or administrative order is suspended by operation of law during any period that the person is committed to the custody of the Department of Corrections or the Department of Juvenile Justice. Provides that the programs of the Department of Healthcare and Family Services concerning child support orders shall include cases in which a responsible relative who is committed to the custody of the Department of Corrections or the Department of Juvenile Justice requests modification of the support order. Provides that the Department of Corrections and the Department of Juvenile Justice shall establish programs to assist committed persons who are obligors under child support orders in cases in which child support enforcement services are provided by the Department of Healthcare and Family Services. Provides for inclusion of information about any child support obligation owed by the defendant and recommendations concerning the payment of that obligation in a presentence report; requires a presentence investigation and report in the case of a misdemeanor defendant who owes a child support obligation.


LRB099 05929 HEP 25977 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB1491LRB099 05929 HEP 25977 b

1    AN ACT concerning public aid.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Public Aid Code is amended by
5adding Section 10-12.5 as follows:
 
6    (305 ILCS 5/10-12.5 new)
7    Sec. 10-12.5. Suspension of child support during a period
8of incarceration.
9    (a) During any period of time in which the person owing a
10duty of support is committed to the custody of the Department
11of Corrections or the Department of Juvenile Justice, an
12obligation to pay child support is suspended by operation of
13law, but not until 60 days after the custodial parent receives
14notice and an opportunity to request a termination or
15modification of the suspension of the support obligation in
16accordance with subsection (c) of this Section. If the
17custodial parent requests that the suspension or prohibition of
18the support obligation be terminated or modified and the court
19terminates or modifies the suspension of the support
20obligation, or if the parties have otherwise agreed in a
21written agreement set forth in a court or administrative order
22for support, then the child support obligation shall not be
23suspended and if the non-custodial parent wishes to obtain a

 

 

HB1491- 2 -LRB099 05929 HEP 25977 b

1modification, he or she must petition for a modification of
2support in accordance with Section 510 of the Illinois Marriage
3and Dissolution of Marriage Act. The Department may provide, by
4rule, for notice to the custodial parent describing the
5custodial parent's rights regarding a prospective modification
6in accordance with Section 510 of the Illinois Marriage and
7Dissolution of Marriage Act.
8    If a non-custodial parent receives a settlement, claim,
9inheritance, lottery prize award, or other lump sum or periodic
10income of $500 or more a month or $5,000 or more as a one-time
11lump sum, during a period in which his or her child support
12obligation is suspended pursuant to this Code, the
13non-custodial parent shall notify the custodial parent, and in
14IV-D cases also notify the Department, within 7 days of
15receiving or becoming aware that he or she is entitled to
16receive this income. If the custodial parent wishes to obtain a
17modification based on this income, he or she must petition for
18a modification of support in accordance with Section 510 of the
19Illinois Marriage and Dissolution of Marriage Act.
20    (b) Any period of incarceration of a parent obligated to
21pay child support shall not be considered a period of voluntary
22unemployment. In the case of an incarcerated parent obligated
23to pay child support greater than $0 whose period of
24incarceration is greater than one year and whose period of
25incarceration begins on or after July 1, 2014, the Department
26shall:

 

 

HB1491- 3 -LRB099 05929 HEP 25977 b

1        (1) temporarily suspend any support obligation of the
2    parent and the enforcement of any support obligation of the
3    parent existing prior to the period of incarceration; and
4        (2) temporarily prohibit the accrual of any interest on
5    any support obligation of the parent existing prior to the
6    period of incarceration during such period.
7    The temporary suspension of the child support obligation
8and of the accrual of interest on any support obligation of the
9parent existing prior to the period of incarceration shall end
10and both support and accrual of interest on any pre-existing
11unpaid obligation shall resume upon the first charging period
12to occur after the obligated parent's release from
13incarceration. Unless the terms of the support obligation have
14been otherwise modified, the support terms shall resume at the
15same level as prior to the temporary suspension.
16    (c) Provided the Department is advised or given notice of
17the obligated parent's incarceration for a period to exceed one
18year beginning after July 1, 2014, the Department, for cases
19enrolled in the Child Support Enforcement Program established
20by Title IV-D of the Social Security Act, or the noncustodial
21parent or his or her representative in all other cases, shall
22provide both parties with:
23        (1) notice of any suspension or review, adjustment, or
24    enforcement of a support obligation and of any prohibition
25    on interest accrual on such obligation that is imposed in
26    accordance with paragraphs (1) and (2) of subsection (b);

 

 

HB1491- 4 -LRB099 05929 HEP 25977 b

1    and
2        (2) an opportunity to request that the suspension or
3    prohibition be terminated or modified on the basis that the
4    noncustodial parent has sufficient income or resources to
5    continue payment of the support obligation during the
6    noncustodial parent's period of incarceration.
7    (d) The Department shall not be liable for failing to act
8upon the provisions established under paragraphs (1) and (2) of
9subsection (b) if the Department has not been advised of the
10obligated parent's incarceration or if the Department has in
11place proper procedures for considering an obligated parent's
12incarceration when setting and modifying child support
13obligations and follows those procedures routinely.
 
14    Section 10. The Illinois Marriage and Dissolution of
15Marriage Act is amended by changing Section 510 as follows:
 
16    (750 ILCS 5/510)  (from Ch. 40, par. 510)
17    Sec. 510. Modification and termination of provisions for
18maintenance, support, educational expenses, and property
19disposition.
20    (a) Except as otherwise provided in paragraph (f) of
21Section 502 and in subsection (b), clause (3) of Section 505.2,
22the provisions of any judgment respecting maintenance or
23support may be modified only as to installments accruing
24subsequent to due notice by the moving party of the filing of

 

 

HB1491- 5 -LRB099 05929 HEP 25977 b

1the motion for modification. An order for child support may be
2modified as follows:
3        (1) upon a showing of a substantial change in
4    circumstances, including incarceration prior to July 1,
5    2014 or for a period of incarceration of less than one
6    year; and
7        (2) without the necessity of showing a substantial
8    change in circumstances, as follows:
9            (A) upon a showing of an inconsistency of at least
10        20%, but no less than $10 per month, between the amount
11        of the existing order and the amount of child support
12        that results from application of the guidelines
13        specified in Section 505 of this Act unless the
14        inconsistency is due to the fact that the amount of the
15        existing order resulted from a deviation from the
16        guideline amount and there has not been a change in the
17        circumstances that resulted in that deviation; or
18            (B) upon a showing of a need to provide for the
19        health care needs of the child under the order through
20        health insurance or other means. In no event shall the
21        eligibility for or receipt of medical assistance be
22        considered to meet the need to provide for the child's
23        health care needs.
24    The provisions of subparagraph (a)(2)(A) shall apply only
25in cases in which a party is receiving child support
26enforcement services from the Department of Healthcare and

 

 

HB1491- 6 -LRB099 05929 HEP 25977 b

1Family Services under Article X of the Illinois Public Aid
2Code, and only when at least 36 months have elapsed since the
3order for child support was entered or last modified.
4    (a-5) An order for maintenance may be modified or
5terminated only upon a showing of a substantial change in
6circumstances. In all such proceedings, as well as in
7proceedings in which maintenance is being reviewed, the court
8shall consider the applicable factors set forth in subsection
9(a) of Section 504 and the following factors:
10        (1) any change in the employment status of either party
11    and whether the change has been made in good faith;
12        (2) the efforts, if any, made by the party receiving
13    maintenance to become self-supporting, and the
14    reasonableness of the efforts where they are appropriate;
15        (3) any impairment of the present and future earning
16    capacity of either party;
17        (4) the tax consequences of the maintenance payments
18    upon the respective economic circumstances of the parties;
19        (5) the duration of the maintenance payments
20    previously paid (and remaining to be paid) relative to the
21    length of the marriage;
22        (6) the property, including retirement benefits,
23    awarded to each party under the judgment of dissolution of
24    marriage, judgment of legal separation, or judgment of
25    declaration of invalidity of marriage and the present
26    status of the property;

 

 

HB1491- 7 -LRB099 05929 HEP 25977 b

1        (7) the increase or decrease in each party's income
2    since the prior judgment or order from which a review,
3    modification, or termination is being sought;
4        (8) the property acquired and currently owned by each
5    party after the entry of the judgment of dissolution of
6    marriage, judgment of legal separation, or judgment of
7    declaration of invalidity of marriage; and
8        (9) any other factor that the court expressly finds to
9    be just and equitable.
10    (b) The provisions as to property disposition may not be
11revoked or modified, unless the court finds the existence of
12conditions that justify the reopening of a judgment under the
13laws of this State.
14    (c) Unless otherwise agreed by the parties in a written
15agreement set forth in the judgment or otherwise approved by
16the court, the obligation to pay future maintenance is
17terminated upon the death of either party, or the remarriage of
18the party receiving maintenance, or if the party receiving
19maintenance cohabits with another person on a resident,
20continuing conjugal basis. Any obligation of a payor party for
21premium payments respecting insurance on such party's life
22imposed under subsection (f) of Section 504 is also terminated
23on the occurrence of any of the foregoing events, unless
24otherwise agreed by the parties. Any termination of an
25obligation for maintenance as a result of the death of the
26payor party, however, shall be inapplicable to any right of the

 

 

HB1491- 8 -LRB099 05929 HEP 25977 b

1other party or such other party's designee to receive a death
2benefit under such insurance on the payor party's life.
3    (d) Unless otherwise provided in this Act, or as agreed in
4writing or expressly provided in the judgment, provisions for
5the support of a child are terminated by emancipation of the
6child, or if the child has attained the age of 18 and is still
7attending high school, provisions for the support of the child
8are terminated upon the date that the child graduates from high
9school or the date the child attains the age of 19, whichever
10is earlier, but not by the death of a parent obligated to
11support or educate the child. An existing obligation to pay for
12support or educational expenses, or both, is not terminated by
13the death of a parent. When a parent obligated to pay support
14or educational expenses, or both, dies, the amount of support
15or educational expenses, or both, may be enforced, modified,
16revoked or commuted to a lump sum payment, as equity may
17require, and that determination may be provided for at the time
18of the dissolution of the marriage or thereafter.
19    (d-5) During any period of time in which the person owing a
20duty of support is committed to the custody of the Department
21of Corrections or the Department of Juvenile Justice, an
22obligation to pay child support is suspended by operation of
23law, but not until 60 days after the custodial parent receives
24notice and an opportunity to request a termination or
25modification of the suspension of the support obligation in
26accordance with subsection (d-7) of this Section. If the

 

 

HB1491- 9 -LRB099 05929 HEP 25977 b

1custodial parent requests that the suspension or prohibition of
2the support obligation be terminated or modified and the court
3terminates or modifies the suspension of the support
4obligation, or if the parties have otherwise agreed in a
5written agreement set forth in the judgment or otherwise
6approved by the court, then the child support obligation shall
7not be suspended and if the non-custodial parent wishes to
8obtain a modification, he or she must petition for a
9modification of support in accordance with this Section. The
10Department of Healthcare and Family Services may provide, by
11rule, for notice to the custodial parent describing the
12custodial parent's rights regarding a prospective modification
13in accordance with this Section.
14    If a non-custodial parent receives a settlement, claim,
15inheritance, lottery prize award, or other lump sum or periodic
16income of $500 or more a month or $5,000 or more as a one-time
17lump sum, during a period in which his or her child support
18obligation is suspended pursuant to Section 10-12.5 of the
19Illinois Public Aid Code, the non-custodial parent shall notify
20the custodial parent, and in IV-D cases also notify the
21Department of Healthcare and Family Services, within 7 days of
22receiving or becoming aware that he or she is entitled to
23receive this income. If the custodial parent wishes to obtain a
24modification based on this income, he or she must petition for
25a modification of support in accordance with this Section.
26    (d-6) The State shall not consider any period of

 

 

HB1491- 10 -LRB099 05929 HEP 25977 b

1incarceration of such parent as a period of voluntary
2unemployment that disqualifies the parent from obtaining a
3modification of the support obligation consistent with the
4parent's ability to pay child support. In the case of an
5incarcerated parent the State shall:
6        (1) temporarily suspend any support obligation of the
7    parent and the enforcement of any support obligation of the
8    parent existing prior to the period of incarceration; and
9        (2) temporarily prohibit the accrual of any interest on
10    any support obligation of the parent existing prior to the
11    period of incarceration during such period.
12    (d-7) The Department of Healthcare and Family Services, for
13cases enrolled in the Child Support Enforcement Program
14established by Title IV-D of the Social Security Act, or the
15noncustodial parent or his or her representative in all other
16cases, shall provide a custodial parent with:
17        (1) notice of any suspension or review, adjustment, or
18    enforcement of a support obligation and notice of any
19    prohibition on the accrual of interest on the support
20    obligation that is imposed in accordance with paragraphs
21    (1) and (2) of subsection (d-6); and
22        (2) an opportunity to request that the suspension or
23    prohibition be terminated or modified on the basis that the
24    noncustodial parent has sufficient income or resources to
25    continue payment of the support obligation during the
26    noncustodial parent's period of incarceration.

 

 

HB1491- 11 -LRB099 05929 HEP 25977 b

1    (e) The right to petition for support or educational
2expenses, or both, under Sections 505 and 513 is not
3extinguished by the death of a parent. Upon a petition filed
4before or after a parent's death, the court may award sums of
5money out of the decedent's estate for the child's support or
6educational expenses, or both, as equity may require. The time
7within which a claim may be filed against the estate of a
8decedent under Sections 505 and 513 and subsection (d) and this
9subsection shall be governed by the provisions of the Probate
10Act of 1975, as a barrable, noncontingent claim.
11    (f) A petition to modify or terminate child support,
12custody, or visitation shall not delay any child support
13enforcement litigation or supplementary proceeding on behalf
14of the obligee, including, but not limited to, a petition for a
15rule to show cause, for non-wage garnishment, or for a
16restraining order.
17    (g) The Department of Healthcare and Family Services and
18the Department of Corrections shall share relevant data and
19collaborate on the facilitation of identification of
20incarcerated parents eligible for either temporary suspension
21of a child support obligation or modification of a child
22support obligation and shall provide relevant information and
23assistance to incarcerated parents eligible for modification
24of support.
25    (h) The crime for which the incarcerated parent was
26convicted, or the prosecution of the incarcerated parent for

 

 

HB1491- 12 -LRB099 05929 HEP 25977 b

1that crime by a legal representative of the Department of
2Healthcare and Family Services for cases enrolled in the Child
3Support Enforcement Program established by Title IV-D of the
4Social Security Act, shall not disqualify the incarcerated
5parent from consideration of modification of a child support
6obligation, nor shall the action of the Department's legal
7representative to bring forth the modification request for
8consideration be considered a conflict of interest for the
9prosecuting office, except in cases where the crime was
10committed to avoid a child support obligation or was committed
11against a child of the obligated parent or the other parent.
12(Source: P.A. 97-608, eff. 1-1-12.)