Rep. La Shawn K. Ford
Filed: 4/12/2013
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1 | AMENDMENT TO HOUSE BILL 2330
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2 | AMENDMENT NO. ______. Amend House Bill 2330, AS AMENDED, by | ||||||
3 | replacing everything after the enacting clause with the | ||||||
4 | following:
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5 | "Section 5. The Illinois Public Aid Code is amended by | ||||||
6 | adding Section 10-12.5 as follows: | ||||||
7 | (305 ILCS 5/10-12.5 new) | ||||||
8 | Sec. 10-12.5. Suspension of child support during a period | ||||||
9 | of incarceration. | ||||||
10 | (a) Unless otherwise agreed by the parties in a written | ||||||
11 | agreement set forth in a court or administrative order for | ||||||
12 | support or unless the custodial parent objects to the | ||||||
13 | suspension of the child support obligation within 60 days of | ||||||
14 | receiving notice regarding the suspension, an obligation to pay | ||||||
15 | child support is suspended by operation of law during any | ||||||
16 | period of time in which the person owing a duty of support is |
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1 | committed to the custody of the Department of Corrections or | ||||||
2 | the Department of Juvenile Justice. If the custodial parent | ||||||
3 | objects, the child support obligation shall not be suspended | ||||||
4 | and if the non-custodial parent wishes to obtain a | ||||||
5 | modification, he or she must petition for a modification of | ||||||
6 | support in accordance with Section 510 of the Illinois Marriage | ||||||
7 | and Dissolution of Marriage Act. The Department shall provide, | ||||||
8 | by rule, for notice to the custodial parent describing the | ||||||
9 | custodial parent's rights regarding a prospective modification | ||||||
10 | in accordance with Section 510 of the Illinois Marriage and | ||||||
11 | Dissolution of Marriage Act. | ||||||
12 | (b) Any period of incarceration of a parent obligated to | ||||||
13 | pay child support shall not be considered a period of voluntary | ||||||
14 | unemployment. In the case of an incarcerated parent obligated | ||||||
15 | to pay child support greater than $0 whose period of | ||||||
16 | incarceration is greater than one year and whose period of | ||||||
17 | incarceration begins on or after July 1, 2013, the Department | ||||||
18 | shall: | ||||||
19 | (1) temporarily suspend any support obligation of the | ||||||
20 | parent and the enforcement of any support obligation of the | ||||||
21 | parent existing prior to the period of incarceration; and | ||||||
22 | (2) temporarily prohibit the accrual of any interest on | ||||||
23 | any support obligation of the parent existing prior to the | ||||||
24 | period of incarceration during such period. | ||||||
25 | The temporary suspension of the child support obligation | ||||||
26 | and of the accrual of interest on any support obligation of the |
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1 | parent existing prior to the period of incarceration shall end | ||||||
2 | and both support and accrual of interest on any pre-existing | ||||||
3 | unpaid obligation shall resume upon the first charging period | ||||||
4 | to occur after the obligated parent's release from | ||||||
5 | incarceration. Unless the terms of the support obligation have | ||||||
6 | been otherwise modified, the support terms shall resume at the | ||||||
7 | same level as prior to the temporary suspension. | ||||||
8 | (c) Provided the Department is advised or given notice of | ||||||
9 | the obligated parent's incarceration for a period to exceed one | ||||||
10 | year beginning after July 1, 2013, the Department, for cases | ||||||
11 | enrolled in the Child Support Enforcement Program established | ||||||
12 | by Title IV-D of the Social Security Act, or the noncustodial | ||||||
13 | parent or his or her representative in all other cases, shall | ||||||
14 | provide both parties with: | ||||||
15 | (1) notice of any suspension of review, adjustment, or | ||||||
16 | enforcement of a support obligation and of any prohibition | ||||||
17 | on interest accrual on such obligation that is imposed in | ||||||
18 | accordance with paragraphs (1) and (2) of subsection (b); | ||||||
19 | and | ||||||
20 | (2) an opportunity to request that the suspension or | ||||||
21 | prohibition be terminated or modified on the basis that the | ||||||
22 | noncustodial parent has sufficient income or resources to | ||||||
23 | continue payment of the support obligation during the | ||||||
24 | noncustodial parent's period of incarceration. | ||||||
25 | (d) The Department shall not be liable for failing to act | ||||||
26 | upon the provisions established under paragraphs (1) and (2) of |
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1 | subsection (a) if the Department has not been advised of the | ||||||
2 | obligated parent's incarceration or if the Department has in | ||||||
3 | place proper procedures for considering an obligated parent's | ||||||
4 | incarceration when setting and modifying child support | ||||||
5 | obligations and follows those procedures routinely. | ||||||
6 | Section 10. The Illinois Marriage and Dissolution of | ||||||
7 | Marriage Act is amended by changing Section 510 as follows:
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8 | (750 ILCS 5/510) (from Ch. 40, par. 510)
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9 | Sec. 510. Modification and termination of provisions for
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10 | maintenance, support, educational expenses, and property | ||||||
11 | disposition.
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12 | (a) Except as otherwise provided in paragraph (f) of | ||||||
13 | Section 502 and
in subsection (b), clause (3) of Section 505.2, | ||||||
14 | the provisions of any
judgment respecting maintenance or | ||||||
15 | support may be modified only as to
installments accruing | ||||||
16 | subsequent to due notice by the moving party of the
filing of | ||||||
17 | the motion for modification. An order for child
support may be | ||||||
18 | modified as follows:
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19 | (1) upon a showing of a substantial change in | ||||||
20 | circumstances , including incarceration prior to July 1, | ||||||
21 | 2013 or for a period of incarceration of less than one | ||||||
22 | year ; and
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23 | (2) without the necessity of showing a substantial | ||||||
24 | change in
circumstances, as follows:
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1 | (A) upon a showing of an inconsistency of at least | ||||||
2 | 20%, but no
less than $10 per month, between the amount | ||||||
3 | of the existing order and the
amount of child support | ||||||
4 | that results from application of the guidelines
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5 | specified in Section 505 of this Act unless the | ||||||
6 | inconsistency is due to the
fact that the amount of the | ||||||
7 | existing order resulted from a deviation from the
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8 | guideline amount and there has not been a change in the | ||||||
9 | circumstances that
resulted in that deviation; or
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10 | (B) upon a showing of a need to provide for the | ||||||
11 | health care needs
of the child under the order through | ||||||
12 | health insurance or other means. In no
event shall the | ||||||
13 | eligibility for or receipt of medical assistance be | ||||||
14 | considered
to meet the need to provide for the child's | ||||||
15 | health care needs.
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16 | The provisions of subparagraph (a)(2)(A) shall apply only
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17 | in cases in which a party is receiving child support
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18 | enforcement services from the Department of Healthcare and | ||||||
19 | Family Services under
Article X of the Illinois Public Aid | ||||||
20 | Code, and only when at least 36
months have elapsed since the | ||||||
21 | order for child support was entered or last
modified.
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22 | (a-5) An order for maintenance may be modified or | ||||||
23 | terminated only upon a
showing of a substantial change in | ||||||
24 | circumstances. In all such proceedings, as
well as in | ||||||
25 | proceedings in which maintenance is being reviewed, the court | ||||||
26 | shall
consider the applicable factors set forth in subsection |
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1 | (a) of Section 504 and
the following factors:
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2 | (1) any change in the employment status of either party | ||||||
3 | and whether the
change has been made
in good faith;
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4 | (2) the efforts, if any, made by the party receiving | ||||||
5 | maintenance to become
self-supporting, and
the | ||||||
6 | reasonableness of the efforts where they are appropriate;
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7 | (3) any impairment of the present and future earning | ||||||
8 | capacity of either
party;
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9 | (4) the tax consequences of the maintenance payments | ||||||
10 | upon the respective
economic
circumstances of the parties;
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11 | (5) the duration of the maintenance payments | ||||||
12 | previously paid (and
remaining to be paid) relative
to the | ||||||
13 | length of the marriage;
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14 | (6) the property, including retirement benefits, | ||||||
15 | awarded to each party
under the judgment of
dissolution of | ||||||
16 | marriage, judgment of legal separation, or judgment of
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17 | declaration of invalidity of
marriage and the present | ||||||
18 | status of the property;
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19 | (7) the increase or decrease in each party's income | ||||||
20 | since the prior
judgment or order from which
a review, | ||||||
21 | modification, or termination is being sought;
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22 | (8) the property acquired and currently owned by each | ||||||
23 | party after the
entry of 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
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26 | (9) any other factor that the court expressly finds to |
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1 | be just and
equitable.
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2 | (b) The provisions as to property disposition may not be | ||||||
3 | revoked or
modified,
unless the court finds the existence of | ||||||
4 | conditions that justify the
reopening of a judgment under the | ||||||
5 | laws of this State.
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6 | (c) Unless otherwise agreed by the parties in a written | ||||||
7 | agreement
set forth in the judgment or otherwise approved by | ||||||
8 | the court, the obligation
to pay future maintenance is | ||||||
9 | terminated upon the death of either party, or
the remarriage of | ||||||
10 | the party receiving maintenance, or if the party
receiving | ||||||
11 | maintenance cohabits with another person on a resident,
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12 | continuing conjugal basis. Any obligation of a payor party for | ||||||
13 | premium payments respecting insurance on such party's life | ||||||
14 | imposed under subsection (f) of Section 504 is also terminated | ||||||
15 | on the occurrence of any of the foregoing events, unless | ||||||
16 | otherwise agreed by the parties. Any termination of an | ||||||
17 | obligation for maintenance as a result of the death of the | ||||||
18 | payor party, however, shall be inapplicable to any right of the | ||||||
19 | other party or such other party's designee to receive a death | ||||||
20 | benefit under such insurance on the payor party's life.
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21 | (d) Unless otherwise provided in this Act, or as agreed in | ||||||
22 | writing or
expressly
provided in the
judgment, provisions for | ||||||
23 | the support of a child are terminated by emancipation
of the
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24 | child, or if the child has attained the age of 18 and is still | ||||||
25 | attending
high school,
provisions for the support of the child | ||||||
26 | are terminated upon the date that the
child
graduates from high |
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1 | school or the date the child attains the age of 19,
whichever | ||||||
2 | is
earlier, but not by the death of a parent obligated to | ||||||
3 | support or educate the
child.
An existing obligation to pay for | ||||||
4 | support
or educational expenses, or both, is not terminated by | ||||||
5 | the death of a
parent. When a parent obligated to pay support | ||||||
6 | or educational
expenses, or both, dies, the amount of support | ||||||
7 | or educational expenses, or
both, may be enforced, modified, | ||||||
8 | revoked or commuted to a lump sum payment,
as equity may | ||||||
9 | require, and that determination may be provided for at the
time | ||||||
10 | of the dissolution of the marriage or thereafter.
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11 | (d-5) Unless otherwise agreed by the parties in a written | ||||||
12 | agreement set forth in the judgment or otherwise approved by | ||||||
13 | the court or unless the custodial parent objects to the | ||||||
14 | suspension of the child support obligation within 60 days of | ||||||
15 | receiving notice regarding the suspension, an obligation to pay | ||||||
16 | child support is suspended by operation of law during any | ||||||
17 | period of time in which the person owing a duty of support is | ||||||
18 | committed to the custody of the Department of Corrections or | ||||||
19 | the Department of Juvenile Justice. If the custodial parent | ||||||
20 | objects, the child support obligation shall not be suspended | ||||||
21 | and if the non-custodial parent wishes to obtain a | ||||||
22 | modification, he or she must petition for a modification of | ||||||
23 | support in accordance with this Section. The Department shall | ||||||
24 | provide, by rule, for notice to the custodial parent describing | ||||||
25 | the custodial parent's rights regarding a prospective | ||||||
26 | modification in accordance with this Section. |
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1 | (d-6) The State shall not consider any period of | ||||||
2 | incarceration of such parent as a period of voluntary | ||||||
3 | unemployment that disqualifies the parent from obtaining a | ||||||
4 | modification of the support obligation consistent with the | ||||||
5 | parent's ability to pay child support. In the case of an | ||||||
6 | incarcerated parent the State shall: | ||||||
7 | (1) temporarily suspend any support obligation of the | ||||||
8 | parent and the enforcement of any support obligation of the | ||||||
9 | parent existing prior to the period of incarceration; and | ||||||
10 | (2) temporarily prohibit the accrual of any interest on | ||||||
11 | any support obligation of the parent existing prior to the | ||||||
12 | period of incarceration during such period. | ||||||
13 | (d-7) The Department of Healthcare and Family Services, for | ||||||
14 | cases enrolled in the Child Support Enforcement Program | ||||||
15 | established by Title IV-D of the Social Security Act, or the | ||||||
16 | noncustodial parent or his or her representative in all other | ||||||
17 | cases, shall provide a custodial parent with: | ||||||
18 | (1) notice of any suspension of review, adjustment, or | ||||||
19 | enforcement of a support obligation and notice of any | ||||||
20 | prohibition on the accrual of interest on the support | ||||||
21 | obligation that is imposed in accordance with paragraphs | ||||||
22 | (1) and (2) of subsection (d-6); and | ||||||
23 | (2) an opportunity to request that the suspension or | ||||||
24 | prohibition be terminated or modified on the basis that the | ||||||
25 | noncustodial parent has sufficient income or resources to | ||||||
26 | continue payment of the support obligation during the |
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1 | noncustodial parent's period of incarceration. | ||||||
2 | (e) The right to petition for support or educational | ||||||
3 | expenses, or both,
under Sections 505 and 513 is not | ||||||
4 | extinguished by the death of a parent.
Upon a petition filed | ||||||
5 | before or after a parent's death, the court may award
sums of | ||||||
6 | money out of the decedent's estate for the child's support or
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7 | educational expenses, or both, as equity may require. The time | ||||||
8 | within
which a claim may be filed against the estate of a | ||||||
9 | decedent under Sections
505 and 513 and subsection (d) and this | ||||||
10 | subsection shall be governed by the
provisions of the Probate | ||||||
11 | Act of 1975, as a barrable, noncontingent claim.
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12 | (f) A petition to modify or terminate child support, | ||||||
13 | custody, or
visitation shall not delay any child support | ||||||
14 | enforcement litigation or
supplementary proceeding on behalf | ||||||
15 | of the obligee, including, but not limited
to, a petition for a | ||||||
16 | rule to show cause, for non-wage garnishment, or for a
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17 | restraining order.
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18 | (g) The Department of Healthcare and Family Services and | ||||||
19 | the Department of Corrections shall share relevant data and | ||||||
20 | collaborate on the facilitation of identification of | ||||||
21 | incarcerated parents eligible for either temporary suspension | ||||||
22 | of a child support obligation or modification of a child | ||||||
23 | support obligation and shall provide relevant information and | ||||||
24 | assistance to incarcerated parents eligible for modification | ||||||
25 | of support. | ||||||
26 | (h) The crime for which the incarcerated parents was |
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1 | convicted, or the prosecution of the incarcerated parent for | ||||||
2 | that crime by a legal representative of the Department of | ||||||
3 | Healthcare and Family Services for cases enrolled in the Child | ||||||
4 | Support Enforcement Program established by Title IV-D of the | ||||||
5 | Social Security Act, shall not disqualify the incarcerated | ||||||
6 | parent from consideration of modification of a child support | ||||||
7 | obligation, nor shall the action of the Department's legal | ||||||
8 | representative to bring forth the modification request for | ||||||
9 | consideration be considered a conflict of interest for the | ||||||
10 | prosecuting office, except in cases where the crime was | ||||||
11 | committed to avoid a child support obligation or was committed | ||||||
12 | against a child of the obligated parent or the other parent. | ||||||
13 | (Source: P.A. 97-608, eff. 1-1-12.)".
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