101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB5613

 

Introduced , by Rep. Thaddeus Jones

 

SYNOPSIS AS INTRODUCED:
 
750 ILCS 5/502  from Ch. 40, par. 502
750 ILCS 5/504  from Ch. 40, par. 504
750 ILCS 5/510  from Ch. 40, par. 510

    Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that any agreement or provision of an agreement regarding the disposition of maintenance in which the obligor is the petitioner in an order of protection under the Illinois Domestic Violence Act of 1986 and the obligee is the respondent in the order of protection is unconscionable. Provides that a court shall not grant a maintenance award to a spouse if the intended obligor spouse has been granted an order of protection under the Illinois Domestic Violence Act of 1986 against the intended obligee spouse. Provides that an order for maintenance shall be terminated if the obligor spouse is granted an order of protection under the Domestic Violence Act of 1986 against the obligee spouse. Makes corresponding changes.


LRB101 20010 LNS 69539 b

 

 

A BILL FOR

 

HB5613LRB101 20010 LNS 69539 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Marriage and Dissolution of
5Marriage Act is amended by changing Sections 502, 504, and 510
6as follows:
 
7    (750 ILCS 5/502)  (from Ch. 40, par. 502)
8    Sec. 502. Agreement.
9    (a) To promote amicable settlement of disputes between
10parties to a marriage attendant upon the dissolution of their
11marriage, the parties may enter into an agreement containing
12provisions for disposition of any property owned by either of
13them, maintenance of either of them, support, parental
14responsibility allocation of their children, and support of
15their children as provided in Sections 513 and 513.5 after the
16children attain majority. The parties may also enter into an
17agreement allocating the sole or joint ownership of or
18responsibility for a companion animal. As used in this Section,
19"companion animal" does not include a service animal as defined
20in Section 2.01c of the Humane Care for Animals Act. Any
21agreement pursuant to this Section must be in writing, except
22for good cause shown with the approval of the court, before
23proceeding to an oral prove up.

 

 

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1    (b) The terms of the agreement, except those providing for
2the support and parental responsibility allocation of
3children, are binding upon the court unless it finds, after
4considering the economic circumstances of the parties and any
5other relevant evidence produced by the parties, on their own
6motion or on request of the court, that the agreement is
7unconscionable. Any agreement or provision of an agreement
8regarding the disposition of maintenance in which the obligor
9is the petitioner in an order of protection under the Illinois
10Domestic Violence Act of 1986 and the obligee is the respondent
11in the order of protection is unconscionable. The terms of the
12agreement incorporated into the judgment are binding if there
13is any conflict between the terms of the agreement and any
14testimony made at an uncontested prove-up hearing on the
15grounds or the substance of the agreement.
16    (c) If the court finds the agreement unconscionable, it may
17request the parties to submit a revised agreement or upon
18hearing, may make orders for the disposition of property,
19maintenance, child support and other matters. If the agreement
20is unconscionable under subsection (b) due to an order of
21protection under the Illinois Domestic Violence Act of 1986,
22the court shall require the parties to submit a revised
23agreement, as it relates to the disposition of maintenance, or
24upon hearing, shall deny any order or provision of an order for
25the disposition of maintenance.
26    (d) Unless the agreement provides to the contrary, its

 

 

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1terms shall be set forth in the judgment, and the parties shall
2be ordered to perform under such terms, or if the agreement
3provides that its terms shall not be set forth in the judgment,
4the judgment shall identify the agreement and state that the
5court has approved its terms.
6    (e) Terms of the agreement set forth in the judgment are
7enforceable by all remedies available for enforcement of a
8judgment, including contempt, and are enforceable as contract
9terms.
10    (f) Child support, support of children as provided in
11Sections 513 and 513.5 after the children attain majority, and
12parental responsibility allocation of children may be modified
13upon a showing of a substantial change in circumstances. The
14parties may provide that maintenance is non-modifiable in
15amount, duration, or both. If the parties do not provide that
16maintenance is non-modifiable in amount, duration, or both,
17then those terms are modifiable upon a substantial change of
18circumstances. Property provisions of an agreement are never
19modifiable. The judgment may expressly preclude or limit
20modification of other terms set forth in the judgment if the
21agreement so provides. Otherwise, terms of an agreement set
22forth in the judgment are automatically modified by
23modification of the judgment.
24(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-422,
25eff. 1-1-18.)
 

 

 

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1    (750 ILCS 5/504)  (from Ch. 40, par. 504)
2    Sec. 504. Maintenance.
3    (a) Entitlement to maintenance. In a proceeding for
4dissolution of marriage, legal separation, declaration of
5invalidity of marriage, or dissolution of a civil union, a
6proceeding for maintenance following a legal separation or
7dissolution of the marriage or civil union by a court which
8lacked personal jurisdiction over the absent spouse, a
9proceeding for modification of a previous order for maintenance
10under Section 510 of this Act, or any proceeding authorized
11under Section 501 of this Act, the court may grant a
12maintenance award for either spouse in amounts and for periods
13of time as the court deems just, without regard to marital
14misconduct unless the marital misconduct involves an order of
15protection under the Illinois Domestic Violence Act of 1986,
16and the maintenance may be paid from the income or property of
17the other spouse. The court shall first make a finding as to
18whether a maintenance award is appropriate, after
19consideration of all relevant factors, including:
20        (1) the income and property of each party, including
21    marital property apportioned and non-marital property
22    assigned to the party seeking maintenance as well as all
23    financial obligations imposed on the parties as a result of
24    the dissolution of marriage;
25        (2) the needs of each party;
26        (3) the realistic present and future earning capacity

 

 

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1    of each party;
2        (4) any impairment of the present and future earning
3    capacity of the party seeking maintenance due to that party
4    devoting time to domestic duties or having forgone or
5    delayed education, training, employment, or career
6    opportunities due to the marriage;
7        (5) any impairment of the realistic present or future
8    earning capacity of the party against whom maintenance is
9    sought;
10        (6) the time necessary to enable the party seeking
11    maintenance to acquire appropriate education, training,
12    and employment, and whether that party is able to support
13    himself or herself through appropriate employment;
14        (6.1) the effect of any parental responsibility
15    arrangements and its effect on a party's ability to seek or
16    maintain employment;
17        (7) the standard of living established during the
18    marriage;
19        (8) the duration of the marriage;
20        (9) the age, health, station, occupation, amount and
21    sources of income, vocational skills, employability,
22    estate, liabilities, and the needs of each of the parties;
23        (10) all sources of public and private income
24    including, without limitation, disability and retirement
25    income;
26        (11) the tax consequences to each party;

 

 

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1        (12) contributions and services by the party seeking
2    maintenance to the education, training, career or career
3    potential, or license of the other spouse;
4        (13) any valid agreement of the parties; and
5        (14) any other factor that the court expressly finds to
6    be just and equitable.
7    A court shall not grant a maintenance award to a spouse if
8the intended obligor spouse has been granted an order of
9protection under the Illinois Domestic Violence Act of 1986
10against the intended obligee spouse.
11    (b) (Blank).
12    (b-1) Amount and duration of maintenance. Unless the court
13finds that a maintenance award is appropriate, it shall bar
14maintenance as to the party seeking maintenance regardless of
15the length of the marriage at the time the action was
16commenced. Only if the court finds that a maintenance award is
17appropriate, the court shall order guideline maintenance in
18accordance with paragraph (1) or non-guideline maintenance in
19accordance with paragraph (2) of this subsection (b-1). If the
20application of guideline maintenance results in a combined
21maintenance and child support obligation that exceeds 50% of
22the payor's net income, the court may determine non-guideline
23maintenance in accordance with paragraph (2) of this subsection
24(b-1), non-guideline child support in accordance with
25paragraph (3.4) of subsection (a) of Section 505, or both.
26        (1) Maintenance award in accordance with guidelines.

 

 

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1    If the combined gross annual income of the parties is less
2    than $500,000 and the payor has no obligation to pay child
3    support or maintenance or both from a prior relationship,
4    maintenance payable after the date the parties' marriage is
5    dissolved shall be in accordance with subparagraphs (A) and
6    (B) of this paragraph (1), unless the court makes a finding
7    that the application of the guidelines would be
8    inappropriate.
9            (A) The amount of maintenance under this paragraph
10        (1) shall be calculated by taking 33 1/3% of the
11        payor's net annual income minus 25% of the payee's net
12        annual income. The amount calculated as maintenance,
13        however, when added to the net income of the payee,
14        shall not result in the payee receiving an amount that
15        is in excess of 40% of the combined net income of the
16        parties.
17            (A-1) Modification of maintenance orders entered
18        before January 1, 2019 that are and continue to be
19        eligible for inclusion in the gross income of the payee
20        for federal income tax purposes and deductible by the
21        payor shall be calculated by taking 30% of the payor's
22        gross annual income minus 20% of the payee's gross
23        annual income, unless both parties expressly provide
24        otherwise in the modification order. The amount
25        calculated as maintenance, however, when added to the
26        gross income of the payee, may not result in the payee

 

 

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1        receiving an amount that is in excess of 40% of the
2        combined gross income of the parties.
3            (B) The duration of an award under this paragraph
4        (1) shall be calculated by multiplying the length of
5        the marriage at the time the action was commenced by
6        whichever of the following factors applies: less than 5
7        years (.20); 5 years or more but less than 6 years
8        (.24); 6 years or more but less than 7 years (.28); 7
9        years or more but less than 8 years (.32); 8 years or
10        more but less than 9 years (.36); 9 years or more but
11        less than 10 years (.40); 10 years or more but less
12        than 11 years (.44); 11 years or more but less than 12
13        years (.48); 12 years or more but less than 13 years
14        (.52); 13 years or more but less than 14 years (.56);
15        14 years or more but less than 15 years (.60); 15 years
16        or more but less than 16 years (.64); 16 years or more
17        but less than 17 years (.68); 17 years or more but less
18        than 18 years (.72); 18 years or more but less than 19
19        years (.76); 19 years or more but less than 20 years
20        (.80). For a marriage of 20 or more years, the court,
21        in its discretion, shall order maintenance for a period
22        equal to the length of the marriage or for an
23        indefinite term.
24        (1.5) In the discretion of the court, any term of
25    temporary maintenance paid by court order under Section 501
26    may be a corresponding credit to the duration of

 

 

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1    maintenance set forth in subparagraph (b-1)(1)(B).
2        (2) Maintenance award not in accordance with
3    guidelines. Any non-guidelines award of maintenance shall
4    be made after the court's consideration of all relevant
5    factors set forth in subsection (a) of this Section.
6    (b-2) Findings. In each case involving the issue of
7maintenance, the court shall make specific findings of fact, as
8follows:
9        (1) the court shall state its reasoning for awarding or
10    not awarding maintenance and shall include references to
11    each relevant factor set forth in subsection (a) of this
12    Section;
13        (2) if the court deviates from applicable guidelines
14    under paragraph (1) of subsection (b-1), it shall state in
15    its findings the amount of maintenance (if determinable) or
16    duration that would have been required under the guidelines
17    and the reasoning for any variance from the guidelines; and
18        (3) the court shall state whether the maintenance is
19    fixed-term, indefinite, reviewable, or reserved by the
20    court.
21    (b-3) Gross income. For purposes of this Section, the term
22"gross income" means all income from all sources, within the
23scope of that phrase in Section 505 of this Act, except
24maintenance payments in the pending proceedings shall not be
25included.
26    (b-3.5) Net income. As used in this Section, "net income"

 

 

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1has the meaning provided in Section 505 of this Act, except
2maintenance payments in the pending proceedings shall not be
3included.
4    (b-4) Modification of maintenance orders entered before
5January 1, 2019. For any order for maintenance or unallocated
6maintenance and child support entered before January 1, 2019
7that is modified after December 31, 2018, payments thereunder
8shall continue to retain the same tax treatment for federal
9income tax purposes unless both parties expressly agree
10otherwise and the agreement is included in the modification
11order.
12    (b-4.5) Maintenance designation.
13        (1) Fixed-term maintenance. If a court grants
14    maintenance for a fixed term, the court shall designate the
15    termination of the period during which this maintenance is
16    to be paid. Maintenance is barred after the end of the
17    period during which fixed-term maintenance is to be paid.
18        (2) Indefinite maintenance. If a court grants
19    maintenance for an indefinite term, the court shall not
20    designate a termination date. Indefinite maintenance shall
21    continue until modification or termination under Section
22    510.
23        (3) Reviewable maintenance. If a court grants
24    maintenance for a specific term with a review, the court
25    shall designate the period of the specific term and state
26    that the maintenance is reviewable. Upon review, the court

 

 

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1    shall make a finding in accordance with subdivision (b-8)
2    of this Section, unless the maintenance is modified or
3    terminated under Section 510.
4    (b-5) Interest on maintenance. Any maintenance obligation
5including any unallocated maintenance and child support
6obligation, or any portion of any support obligation, that
7becomes due and remains unpaid shall accrue simple interest as
8set forth in Section 505 of this Act.
9    (b-7) Maintenance judgments. Any new or existing
10maintenance order including any unallocated maintenance and
11child support order entered by the court under this Section
12shall be deemed to be a series of judgments against the person
13obligated to pay support thereunder. Each such judgment to be
14in the amount of each payment or installment of support and
15each such judgment to be deemed entered as of the date the
16corresponding payment or installment becomes due under the
17terms of the support order, except no judgment shall arise as
18to any installment coming due after the termination of
19maintenance as provided by Section 510 of the Illinois Marriage
20and Dissolution of Marriage Act or the provisions of any order
21for maintenance. Each such judgment shall have the full force,
22effect and attributes of any other judgment of this State,
23including the ability to be enforced. Notwithstanding any other
24State or local law to the contrary, a lien arises by operation
25of law against the real and personal property of the obligor
26for each installment of overdue support owed by the obligor.

 

 

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1    (b-8) Review of maintenance. Upon review of any previously
2ordered maintenance award, the court may extend maintenance for
3further review, extend maintenance for a fixed non-modifiable
4term, extend maintenance for an indefinite term, or permanently
5terminate maintenance in accordance with subdivision
6(b-1)(1)(A) of this Section.
7    (c) Maintenance during an appeal. The court may grant and
8enforce the payment of maintenance during the pendency of an
9appeal as the court shall deem reasonable and proper.
10    (d) Maintenance during imprisonment. No maintenance shall
11accrue during the period in which a party is imprisoned for
12failure to comply with the court's order for the payment of
13such maintenance.
14    (e) Fees when maintenance is paid through the clerk. When
15maintenance is to be paid through the clerk of the court in a
16county of 500,000 inhabitants or less, the order shall direct
17the obligor to pay to the clerk, in addition to the maintenance
18payments, all fees imposed by the county board under paragraph
19(4) of subsection (bb) of Section 27.1a of the Clerks of Courts
20Act. When maintenance is to be paid through the clerk of the
21court in a county of more than 500,000 but less than 3,000,000
22inhabitants, the order shall direct the obligor to pay to the
23clerk, in addition to the maintenance payments, all fees
24imposed by the county board under paragraph (4) of subsection
25(bb) of Section 27.2 of the Clerks of Courts Act. Unless paid
26in cash or pursuant to an order for withholding, the payment of

 

 

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1the fee shall be by a separate instrument from the support
2payment and shall be made to the order of the Clerk.
3    (f) Maintenance secured by life insurance. An award ordered
4by a court upon entry of a dissolution judgment or upon entry
5of an award of maintenance following a reservation of
6maintenance in a dissolution judgment may be reasonably
7secured, in whole or in part, by life insurance on the payor's
8life on terms as to which the parties agree or, if the parties
9do not agree, on such terms determined by the court, subject to
10the following:
11        (1) With respect to existing life insurance, provided
12    the court is apprised through evidence, stipulation, or
13    otherwise as to level of death benefits, premium, and other
14    relevant data and makes findings relative thereto, the
15    court may allocate death benefits, the right to assign
16    death benefits, or the obligation for future premium
17    payments between the parties as it deems just.
18        (2) To the extent the court determines that its award
19    should be secured, in whole or in part, by new life
20    insurance on the payor's life, the court may only order:
21            (i) that the payor cooperate on all appropriate
22        steps for the payee to obtain such new life insurance;
23        and
24            (ii) that the payee, at his or her sole option and
25        expense, may obtain such new life insurance on the
26        payor's life up to a maximum level of death benefit

 

 

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1        coverage, or descending death benefit coverage, as is
2        set by the court, such level not to exceed a reasonable
3        amount in light of the court's award, with the payee or
4        the payee's designee being the beneficiary of such life
5        insurance.
6    In determining the maximum level of death benefit coverage,
7    the court shall take into account all relevant facts and
8    circumstances, including the impact on access to life
9    insurance by the maintenance payor. If in resolving any
10    issues under paragraph (2) of this subsection (f) a court
11    reviews any submitted or proposed application for new
12    insurance on the life of a maintenance payor, the review
13    shall be in camera.
14        (3) (Blank).
15(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-520,
16eff. 1-1-18 (see Section 5 of P.A. 100-565 for the effective
17date of P.A. 100-520); 100-923, eff. 1-1-19.)
 
18    (750 ILCS 5/510)  (from Ch. 40, par. 510)
19    Sec. 510. Modification and termination of provisions for
20maintenance, support, educational expenses, and property
21disposition.
22    (a) Except as otherwise provided in paragraph (f) of
23Section 502 and in subsection (b), clause (3) of Section 505.2,
24the provisions of any judgment respecting maintenance or
25support may be modified only as to installments accruing

 

 

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

 

 

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1Code, and only when at least 36 months have elapsed since the
2order for child support was entered or last modified.
3    The court may grant a petition for modification that seeks
4to apply the changes made to subsection (a) of Section 505 by
5Public Act 99-764 to an order entered before the effective date
6of Public Act 99-764 only upon a finding of a substantial
7change in circumstances that warrants application of the
8changes. The enactment of Public Act 99-764 itself does not
9constitute a substantial change in circumstances warranting a
10modification.
11    (a-5) Except as otherwise provided in subsection (a-7), An
12order for maintenance may be modified or terminated only upon a
13showing of a substantial change in circumstances. The court may
14grant a petition for modification that seeks to apply the
15changes made to Section 504 by this amendatory Act of the 100th
16General Assembly to an order entered before the effective date
17of this amendatory Act of the 100th General Assembly only upon
18a finding of a substantial change in circumstances that
19warrants application of the changes. The enactment of this
20amendatory Act of the 100th General Assembly itself does not
21constitute a substantial change in circumstances warranting a
22modification. In all such proceedings, as well as in
23proceedings in which maintenance is being reviewed, the court
24shall consider the applicable factors set forth in subsection
25(a) of Section 504 and the following factors:
26        (1) any change in the employment status of either party

 

 

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1    and whether the change has been made in good faith;
2        (2) the efforts, if any, made by the party receiving
3    maintenance to become self-supporting, and the
4    reasonableness of the efforts where they are appropriate;
5        (3) any impairment of the present and future earning
6    capacity of either party;
7        (4) the tax consequences of the maintenance payments
8    upon the respective economic circumstances of the parties;
9        (5) the duration of the maintenance payments
10    previously paid (and remaining to be paid) relative to the
11    length of the marriage;
12        (6) the property, including retirement benefits,
13    awarded to each party under the judgment of dissolution of
14    marriage, judgment of legal separation, or judgment of
15    declaration of invalidity of marriage and the present
16    status of the property;
17        (7) the increase or decrease in each party's income
18    since the prior judgment or order from which a review,
19    modification, or termination is being sought;
20        (8) the property acquired and currently owned by each
21    party after the entry of the judgment of dissolution of
22    marriage, judgment of legal separation, or judgment of
23    declaration of invalidity of marriage; and
24        (9) any other factor that the court expressly finds to
25    be just and equitable.
26    (a-6) (Blank).

 

 

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1    (a-7) An order for maintenance shall be terminated if the
2obligor spouse is granted an order of protection under the
3Domestic Violence Act of 1986 against the obligee spouse.
4    (b) The provisions as to property disposition may not be
5revoked or modified, unless the court finds the existence of
6conditions that justify the reopening of a judgment under the
7laws of this State.
8    (c) Unless otherwise agreed by the parties in a written
9agreement set forth in the judgment or otherwise approved by
10the court, the obligation to pay future maintenance is
11terminated upon the death of either party, or the remarriage of
12the party receiving maintenance, or if the party receiving
13maintenance cohabits with another person on a resident,
14continuing conjugal basis. An obligor's obligation to pay
15maintenance or unallocated maintenance terminates by operation
16of law on the date the obligee remarries or the date the court
17finds cohabitation began. The obligor is entitled to
18reimbursement for all maintenance paid from that date forward.
19Any termination of an obligation for maintenance as a result of
20the death of the obligor, however, shall be inapplicable to any
21right of the other party or such other party's designee to
22receive a death benefit under such insurance on the obligor's
23life. An obligee must advise the obligor of his or her
24intention to marry at least 30 days before the remarriage,
25unless the decision is made within this time period. In that
26event, he or she must notify the obligor within 72 hours of

 

 

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1getting married.
2    (c-5) In an adjudicated case, the court shall make specific
3factual findings as to the reason for the modification as well
4as the amount, nature, and duration of the modified maintenance
5award.
6    (d) Unless otherwise provided in this Act, or as agreed in
7writing or expressly provided in the judgment, provisions for
8the support of a child are terminated by emancipation of the
9child, or if the child has attained the age of 18 and is still
10attending high school, provisions for the support of the child
11are terminated upon the date that the child graduates from high
12school or the date the child attains the age of 19, whichever
13is earlier, but not by the death of a parent obligated to
14support or educate the child. An existing obligation to pay for
15support or educational expenses, or both, is not terminated by
16the death of a parent. When a parent obligated to pay support
17or educational expenses, or both, dies, the amount of support
18or educational expenses, or both, may be enforced, modified,
19revoked or commuted to a lump sum payment, as equity may
20require, and that determination may be provided for at the time
21of the dissolution of the marriage or thereafter.
22    (e) The right to petition for support or educational
23expenses, or both, under Sections 505, 513, and 513.5 is not
24extinguished by the death of a parent. Upon a petition filed
25before or after a parent's death, the court may award sums of
26money out of the decedent's estate for the child's support or

 

 

HB5613- 20 -LRB101 20010 LNS 69539 b

1educational expenses, or both, as equity may require. The time
2within which a claim may be filed against the estate of a
3decedent under Sections 505 and 513 and subsection (d) and this
4subsection shall be governed by the provisions of the Probate
5Act of 1975, as a barrable, noncontingent claim.
6    (f) A petition to modify or terminate child support or the
7allocation of parental responsibilities, including parenting
8time, shall not delay any child support enforcement litigation
9or supplementary proceeding on behalf of the obligee,
10including, but not limited to, a petition for a rule to show
11cause, for non-wage garnishment, or for a restraining order.
12(Source: P.A. 99-90, eff. 1-1-16; 99-764, eff. 7-1-17; 100-15,
13eff. 7-1-17; 100-201, eff. 8-18-17; 100-923, eff. 1-1-19.)