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1 | AN ACT concerning public aid.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Illinois Public Aid Code is amended by | ||||||
5 | adding 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 | ||||||
8 | of incarceration. | ||||||
9 | (a) During any period of time in which the person owing a | ||||||
10 | duty of support is committed to the custody of the Department | ||||||
11 | of Corrections or the Department of Juvenile Justice, an | ||||||
12 | obligation to pay child support is suspended by operation of | ||||||
13 | law, but not until 60 days after the custodial parent receives | ||||||
14 | notice and an opportunity to request a termination or | ||||||
15 | modification of the suspension of the support obligation in | ||||||
16 | accordance with subsection (c) of this Section. If the | ||||||
17 | custodial parent requests that the suspension or prohibition of | ||||||
18 | the support obligation be terminated or modified and the court | ||||||
19 | terminates or modifies the suspension of the support | ||||||
20 | obligation, or if the parties have otherwise agreed in a | ||||||
21 | written agreement set forth in a court or administrative order | ||||||
22 | for support, then the child support obligation shall not be | ||||||
23 | suspended and if the non-custodial parent wishes to obtain a |
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1 | modification, he or she must petition for a modification of | ||||||
2 | support in accordance with Section 510 of the Illinois Marriage | ||||||
3 | and Dissolution of Marriage Act. The Department may provide, by | ||||||
4 | rule, for notice to the custodial parent describing the | ||||||
5 | custodial parent's rights regarding a prospective modification | ||||||
6 | in accordance with Section 510 of the Illinois Marriage and | ||||||
7 | Dissolution of Marriage Act. | ||||||
8 | If a non-custodial parent receives a settlement, claim, | ||||||
9 | inheritance, lottery prize award, or other lump sum or periodic | ||||||
10 | income of $500 or more a month or $5,000 or more as a one-time | ||||||
11 | lump sum, during a period in which his or her child support | ||||||
12 | obligation is suspended pursuant to this Code, the | ||||||
13 | non-custodial parent shall notify the custodial parent, and in | ||||||
14 | IV-D cases also notify the Department, within 7 days of | ||||||
15 | receiving or becoming aware that he or she is entitled to | ||||||
16 | receive this income. If the custodial parent wishes to obtain a | ||||||
17 | modification based on this income, he or she must petition for | ||||||
18 | a modification of support in accordance with Section 510 of the | ||||||
19 | Illinois Marriage and Dissolution of Marriage Act. | ||||||
20 | (b) Any period of incarceration of a parent obligated to | ||||||
21 | pay child support shall not be considered a period of voluntary | ||||||
22 | unemployment. In the case of an incarcerated parent obligated | ||||||
23 | to pay child support greater than $0 whose period of | ||||||
24 | incarceration is greater than one year and whose period of | ||||||
25 | incarceration begins on or after July 1, 2014, the Department | ||||||
26 | shall: |
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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 | ||||||
8 | and of the accrual of interest on any support obligation of the | ||||||
9 | parent existing prior to the period of incarceration shall end | ||||||
10 | and both support and accrual of interest on any pre-existing | ||||||
11 | unpaid obligation shall resume upon the first charging period | ||||||
12 | to occur after the obligated parent's release from | ||||||
13 | incarceration. Unless the terms of the support obligation have | ||||||
14 | been otherwise modified, the support terms shall resume at the | ||||||
15 | same level as prior to the temporary suspension. | ||||||
16 | (c) Provided the Department is advised or given notice of | ||||||
17 | the obligated parent's incarceration for a period to exceed one | ||||||
18 | year beginning after July 1, 2014, the Department, for cases | ||||||
19 | enrolled in the Child Support Enforcement Program established | ||||||
20 | by Title IV-D of the Social Security Act, or the noncustodial | ||||||
21 | parent or his or her representative in all other cases, shall | ||||||
22 | provide 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); |
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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 | ||||||
8 | upon the provisions established under paragraphs (1) and (2) of | ||||||
9 | subsection (b) if the Department has not been advised of the | ||||||
10 | obligated parent's incarceration or if the Department has in | ||||||
11 | place proper procedures for considering an obligated parent's | ||||||
12 | incarceration when setting and modifying child support | ||||||
13 | obligations and follows those procedures routinely. | ||||||
14 | Section 10. The Illinois Marriage and Dissolution of | ||||||
15 | Marriage Act is amended by changing Section 510 as follows:
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16 | (750 ILCS 5/510) (from Ch. 40, par. 510)
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17 | Sec. 510. Modification and termination of provisions for
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18 | maintenance, support, educational expenses, and property | ||||||
19 | disposition.
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20 | (a) Except as otherwise provided in paragraph (f) of | ||||||
21 | Section 502 and
in subsection (b), clause (3) of Section 505.2, | ||||||
22 | the provisions of any
judgment respecting maintenance or | ||||||
23 | support may be modified only as to
installments accruing | ||||||
24 | subsequent to due notice by the moving party of the
filing of |
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1 | the motion for modification. An order for child
support may be | ||||||
2 | modified as follows:
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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
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7 | (2) without the necessity of showing a substantial | ||||||
8 | change in
circumstances, as follows:
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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
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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
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16 | guideline amount and there has not been a change in the | ||||||
17 | circumstances that
resulted in that deviation; or
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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.
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24 | The provisions of subparagraph (a)(2)(A) shall apply only
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25 | in cases in which a party is receiving child support
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26 | enforcement services from the Department of Healthcare and |
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1 | Family Services under
Article X of the Illinois Public Aid | ||||||
2 | Code, and only when at least 36
months have elapsed since the | ||||||
3 | order for child support was entered or last
modified.
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4 | (a-5) An order for maintenance may be modified or | ||||||
5 | terminated only upon a
showing of a substantial change in | ||||||
6 | circumstances. In all such proceedings, as
well as in | ||||||
7 | proceedings in which maintenance is being reviewed, the court | ||||||
8 | shall
consider the applicable factors set forth in subsection | ||||||
9 | (a) of Section 504 and
the following factors:
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10 | (1) any change in the employment status of either party | ||||||
11 | and whether the
change has been made
in good faith;
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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;
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15 | (3) any impairment of the present and future earning | ||||||
16 | capacity of either
party;
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17 | (4) the tax consequences of the maintenance payments | ||||||
18 | upon the respective
economic
circumstances of the parties;
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19 | (5) the duration of the maintenance payments | ||||||
20 | previously paid (and
remaining to be paid) relative
to the | ||||||
21 | length of the marriage;
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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
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25 | declaration of invalidity of
marriage and the present | ||||||
26 | status of the property;
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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;
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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
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7 | declaration of invalidity of
marriage; and
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8 | (9) any other factor that the court expressly finds to | ||||||
9 | be just and
equitable.
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10 | (b) The provisions as to property disposition may not be | ||||||
11 | revoked or
modified,
unless the court finds the existence of | ||||||
12 | conditions that justify the
reopening of a judgment under the | ||||||
13 | laws of this State.
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14 | (c) Unless otherwise agreed by the parties in a written | ||||||
15 | agreement
set forth in the judgment or otherwise approved by | ||||||
16 | the court, the obligation
to pay future maintenance is | ||||||
17 | terminated upon the death of either party, or
the remarriage of | ||||||
18 | the party receiving maintenance, or if the party
receiving | ||||||
19 | maintenance cohabits with another person on a resident,
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20 | continuing conjugal basis. Any obligation of a payor party for | ||||||
21 | premium payments respecting insurance on such party's life | ||||||
22 | imposed under subsection (f) of Section 504 is also terminated | ||||||
23 | on the occurrence of any of the foregoing events, unless | ||||||
24 | otherwise agreed by the parties. Any termination of an | ||||||
25 | obligation for maintenance as a result of the death of the | ||||||
26 | payor party, however, shall be inapplicable to any right of the |
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1 | other party or such other party's designee to receive a death | ||||||
2 | benefit under such insurance on the payor party's life.
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3 | (d) Unless otherwise provided in this Act, or as agreed in | ||||||
4 | writing or
expressly
provided in the
judgment, provisions for | ||||||
5 | the support of a child are terminated by emancipation
of the
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6 | child, or if the child has attained the age of 18 and is still | ||||||
7 | attending
high school,
provisions for the support of the child | ||||||
8 | are terminated upon the date that the
child
graduates from high | ||||||
9 | school or the date the child attains the age of 19,
whichever | ||||||
10 | is
earlier, but not by the death of a parent obligated to | ||||||
11 | support or educate the
child.
An existing obligation to pay for | ||||||
12 | support
or educational expenses, or both, is not terminated by | ||||||
13 | the death of a
parent. When a parent obligated to pay support | ||||||
14 | or educational
expenses, or both, dies, the amount of support | ||||||
15 | or educational expenses, or
both, may be enforced, modified, | ||||||
16 | revoked or commuted to a lump sum payment,
as equity may | ||||||
17 | require, and that determination may be provided for at the
time | ||||||
18 | of the dissolution of the marriage or thereafter.
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19 | (d-5) During any period of time in which the person owing a | ||||||
20 | duty of support is committed to the custody of the Department | ||||||
21 | of Corrections or the Department of Juvenile Justice, an | ||||||
22 | obligation to pay child support is suspended by operation of | ||||||
23 | law, but not until 60 days after the custodial parent receives | ||||||
24 | notice and an opportunity to request a termination or | ||||||
25 | modification of the suspension of the support obligation in | ||||||
26 | accordance with subsection (d-7) of this Section. If the |
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1 | custodial parent requests that the suspension or prohibition of | ||||||
2 | the support obligation be terminated or modified and the court | ||||||
3 | terminates or modifies the suspension of the support | ||||||
4 | obligation, or if the parties have otherwise agreed in a | ||||||
5 | written agreement set forth in the judgment or otherwise | ||||||
6 | approved by the court, then the child support obligation shall | ||||||
7 | not be suspended and if the non-custodial parent wishes to | ||||||
8 | obtain a modification, he or she must petition for a | ||||||
9 | modification of support in accordance with this Section. The | ||||||
10 | Department of Healthcare and Family Services may provide, by | ||||||
11 | rule, for notice to the custodial parent describing the | ||||||
12 | custodial parent's rights regarding a prospective modification | ||||||
13 | in accordance with this Section. | ||||||
14 | If a non-custodial parent receives a settlement, claim, | ||||||
15 | inheritance, lottery prize award, or other lump sum or periodic | ||||||
16 | income of $500 or more a month or $5,000 or more as a one-time | ||||||
17 | lump sum, during a period in which his or her child support | ||||||
18 | obligation is suspended pursuant to Section 10-12.5 of the | ||||||
19 | Illinois Public Aid Code, the non-custodial parent shall notify | ||||||
20 | the custodial parent, and in IV-D cases also notify the | ||||||
21 | Department of Healthcare and Family Services, within 7 days of | ||||||
22 | receiving or becoming aware that he or she is entitled to | ||||||
23 | receive this income. If the custodial parent wishes to obtain a | ||||||
24 | modification based on this income, he or she must petition for | ||||||
25 | a modification of support in accordance with this Section. | ||||||
26 | (d-6) The State shall not consider any period of |
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1 | incarceration of such parent as a period of voluntary | ||||||
2 | unemployment that disqualifies the parent from obtaining a | ||||||
3 | modification of the support obligation consistent with the | ||||||
4 | parent's ability to pay child support. In the case of an | ||||||
5 | incarcerated 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 | ||||||
13 | cases enrolled in the Child Support Enforcement Program | ||||||
14 | established by Title IV-D of the Social Security Act, or the | ||||||
15 | noncustodial parent or his or her representative in all other | ||||||
16 | cases, 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. |
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1 | (e) The right to petition for support or educational | ||||||
2 | expenses, or both,
under Sections 505 and 513 is not | ||||||
3 | extinguished by the death of a parent.
Upon a petition filed | ||||||
4 | before or after a parent's death, the court may award
sums of | ||||||
5 | money out of the decedent's estate for the child's support or
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6 | educational expenses, or both, as equity may require. The time | ||||||
7 | within
which a claim may be filed against the estate of a | ||||||
8 | decedent under Sections
505 and 513 and subsection (d) and this | ||||||
9 | subsection shall be governed by the
provisions of the Probate | ||||||
10 | Act of 1975, as a barrable, noncontingent claim.
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11 | (f) A petition to modify or terminate child support, | ||||||
12 | custody, or
visitation shall not delay any child support | ||||||
13 | enforcement litigation or
supplementary proceeding on behalf | ||||||
14 | of the obligee, including, but not limited
to, a petition for a | ||||||
15 | rule to show cause, for non-wage garnishment, or for a
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16 | restraining order.
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17 | (g) The Department of Healthcare and Family Services and | ||||||
18 | the Department of Corrections shall share relevant data and | ||||||
19 | collaborate on the facilitation of identification of | ||||||
20 | incarcerated parents eligible for either temporary suspension | ||||||
21 | of a child support obligation or modification of a child | ||||||
22 | support obligation and shall provide relevant information and | ||||||
23 | assistance to incarcerated parents eligible for modification | ||||||
24 | of support. | ||||||
25 | (h) The crime for which the incarcerated parent was | ||||||
26 | convicted, or the prosecution of the incarcerated parent for |
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1 | that crime by a legal representative of the Department of | ||||||
2 | Healthcare and Family Services for cases enrolled in the Child | ||||||
3 | Support Enforcement Program established by Title IV-D of the | ||||||
4 | Social Security Act, shall not disqualify the incarcerated | ||||||
5 | parent from consideration of modification of a child support | ||||||
6 | obligation, nor shall the action of the Department's legal | ||||||
7 | representative to bring forth the modification request for | ||||||
8 | consideration be considered a conflict of interest for the | ||||||
9 | prosecuting office, except in cases where the crime was | ||||||
10 | committed to avoid a child support obligation or was committed | ||||||
11 | against a child of the obligated parent or the other parent. | ||||||
12 | (Source: P.A. 97-608, eff. 1-1-12.)
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