Illinois General Assembly - Full Text of HB4759
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Full Text of HB4759  101st General Assembly

HB4759 101ST GENERAL ASSEMBLY

  
  

 


 
101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4759

 

Introduced 2/18/2020, 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

    Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that any agreement between parties for the disposition of maintenance is unconscionable if the obligee spouse is the respondent in an order of protection under the Illinois Domestic Violence Act of 1986 and the obligor spouse is granted in the order of protection. Provides that a court shall not grant a maintenance award to a spouse who is the respondent in an order of protection under the Illinois Domestic Violence Act of 1986 if the petitioner is granted an order of protection and is the intended obligor and the respondent is the intended obligee. Makes corresponding changes.


LRB101 16861 LNS 66260 b

 

 

A BILL FOR

 

HB4759LRB101 16861 LNS 66260 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 and 504 as
6follows:
 
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 who
8is the respondent in an order of protection under the Illinois
9Domestic Violence Act of 1986 if the petitioner is granted an
10order of protection and is the intended obligor and the
11respondent is the intended obligee.
12    (b) (Blank).
13    (b-1) Amount and duration of maintenance. Unless the court
14finds that a maintenance award is appropriate, it shall bar
15maintenance as to the party seeking maintenance regardless of
16the length of the marriage at the time the action was
17commenced. Only if the court finds that a maintenance award is
18appropriate, the court shall order guideline maintenance in
19accordance with paragraph (1) or non-guideline maintenance in
20accordance with paragraph (2) of this subsection (b-1). If the
21application of guideline maintenance results in a combined
22maintenance and child support obligation that exceeds 50% of
23the payor's net income, the court may determine non-guideline
24maintenance in accordance with paragraph (2) of this subsection
25(b-1), non-guideline child support in accordance with
26paragraph (3.4) of subsection (a) of Section 505, or both.

 

 

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

 

 

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1        gross income of the payee, may not result in the payee
2        receiving an amount that is in excess of 40% of the
3        combined gross income of the parties.
4            (B) The duration of an award under this paragraph
5        (1) shall be calculated by multiplying the length of
6        the marriage at the time the action was commenced by
7        whichever of the following factors applies: less than 5
8        years (.20); 5 years or more but less than 6 years
9        (.24); 6 years or more but less than 7 years (.28); 7
10        years or more but less than 8 years (.32); 8 years or
11        more but less than 9 years (.36); 9 years or more but
12        less than 10 years (.40); 10 years or more but less
13        than 11 years (.44); 11 years or more but less than 12
14        years (.48); 12 years or more but less than 13 years
15        (.52); 13 years or more but less than 14 years (.56);
16        14 years or more but less than 15 years (.60); 15 years
17        or more but less than 16 years (.64); 16 years or more
18        but less than 17 years (.68); 17 years or more but less
19        than 18 years (.72); 18 years or more but less than 19
20        years (.76); 19 years or more but less than 20 years
21        (.80). For a marriage of 20 or more years, the court,
22        in its discretion, shall order maintenance for a period
23        equal to the length of the marriage or for an
24        indefinite term.
25        (1.5) In the discretion of the court, any term of
26    temporary maintenance paid by court order under Section 501

 

 

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

 

 

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1    (b-3.5) Net income. As used in this Section, "net income"
2has the meaning provided in Section 505 of this Act, except
3maintenance payments in the pending proceedings shall not be
4included.
5    (b-4) Modification of maintenance orders entered before
6January 1, 2019. For any order for maintenance or unallocated
7maintenance and child support entered before January 1, 2019
8that is modified after December 31, 2018, payments thereunder
9shall continue to retain the same tax treatment for federal
10income tax purposes unless both parties expressly agree
11otherwise and the agreement is included in the modification
12order.
13    (b-4.5) Maintenance designation.
14        (1) Fixed-term maintenance. If a court grants
15    maintenance for a fixed term, the court shall designate the
16    termination of the period during which this maintenance is
17    to be paid. Maintenance is barred after the end of the
18    period during which fixed-term maintenance is to be paid.
19        (2) Indefinite maintenance. If a court grants
20    maintenance for an indefinite term, the court shall not
21    designate a termination date. Indefinite maintenance shall
22    continue until modification or termination under Section
23    510.
24        (3) Reviewable maintenance. If a court grants
25    maintenance for a specific term with a review, the court
26    shall designate the period of the specific term and state

 

 

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

 

 

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

 

 

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

 

 

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1        payor's life up to a maximum level of death benefit
2        coverage, or descending death benefit coverage, as is
3        set by the court, such level not to exceed a reasonable
4        amount in light of the court's award, with the payee or
5        the payee's designee being the beneficiary of such life
6        insurance.
7    In determining the maximum level of death benefit coverage,
8    the court shall take into account all relevant facts and
9    circumstances, including the impact on access to life
10    insurance by the maintenance payor. If in resolving any
11    issues under paragraph (2) of this subsection (f) a court
12    reviews any submitted or proposed application for new
13    insurance on the life of a maintenance payor, the review
14    shall be in camera.
15        (3) (Blank).
16(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-520,
17eff. 1-1-18 (see Section 5 of P.A. 100-565 for the effective
18date of P.A. 100-520); 100-923, eff. 1-1-19.)