Illinois General Assembly - Full Text of HB0861
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Full Text of HB0861  102nd General Assembly

HB0861eng 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB0861 EngrossedLRB102 12717 LNS 18056 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
19Section, "companion animal" does not include a service animal
20as defined in Section 2.01c of the Humane Care for Animals Act.
21Any agreement pursuant to this Section must be in writing,
22except for good cause shown with the approval of the court,
23before proceeding 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 is unconscionable if
9the obligor is the petitioner for an order of protection under
10the Illinois Domestic Violence Act of 1986 and the obligee is
11the respondent to the petition for the order of protection.
12The terms of the agreement incorporated into the judgment are
13binding if there is any conflict between the terms of the
14agreement and any testimony made at an uncontested prove-up
15hearing on the grounds or the substance of the agreement.
16    (c) If the court finds the agreement unconscionable, it
17may request 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;
25100-422, eff. 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
10maintenance under Section 510 of this Act, or any proceeding
11authorized under 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
24    of 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
4    party devoting time to domestic duties or having forgone
5    or 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
16    or 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
6    to be just and equitable.
7    A court shall not grant a maintenance award to a spouse who
8is the respondent to a petition for an order of protection
9under the Illinois Domestic Violence Act of 1986 if the
10petitioner is granted an order of protection and is the
11intended obligor and the respondent 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
25subsection (b-1), non-guideline child support in accordance
26with paragraph (3.4) of subsection (a) of Section 505, or

 

 

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

 

 

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

 

 

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1    temporary maintenance paid by court order under Section
2    501 may be a corresponding credit to the duration of
3    maintenance set forth in subparagraph (b-1)(1)(B).
4        (2) Maintenance award not in accordance with
5    guidelines. Any non-guidelines award of maintenance shall
6    be made after the court's consideration of all relevant
7    factors set forth in subsection (a) of this Section.
8    (b-2) Findings. In each case involving the issue of
9maintenance, the court shall make specific findings of fact,
10as follows:
11        (1) the court shall state its reasoning for awarding
12    or not awarding maintenance and shall include references
13    to each relevant factor set forth in subsection (a) of
14    this Section;
15        (2) if the court deviates from applicable guidelines
16    under paragraph (1) of subsection (b-1), it shall state in
17    its findings the amount of maintenance (if determinable)
18    or duration that would have been required under the
19    guidelines and the reasoning for any variance from the
20    guidelines; and
21        (3) the court shall state whether the maintenance is
22    fixed-term, indefinite, reviewable, or reserved by the
23    court.
24    (b-3) Gross income. For purposes of this Section, the term
25"gross income" means all income from all sources, within the
26scope of that phrase in Section 505 of this Act, except

 

 

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

 

 

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

 

 

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

 

 

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1inhabitants, the order shall direct the obligor to pay to the
2clerk, in addition to the maintenance payments, all fees
3imposed by the county board under paragraph (4) of subsection
4(bb) of Section 27.2 of the Clerks of Courts Act. Unless paid
5in cash or pursuant to an order for withholding, the payment of
6the fee shall be by a separate instrument from the support
7payment and shall be made to the order of the Clerk.
8    (f) Maintenance secured by life insurance. An award
9ordered by a court upon entry of a dissolution judgment or upon
10entry of an award of maintenance following a reservation of
11maintenance in a dissolution judgment may be reasonably
12secured, in whole or in part, by life insurance on the payor's
13life on terms as to which the parties agree or, if the parties
14do not agree, on such terms determined by the court, subject to
15the following:
16        (1) With respect to existing life insurance, provided
17    the court is apprised through evidence, stipulation, or
18    otherwise as to level of death benefits, premium, and
19    other relevant data and makes findings relative thereto,
20    the court may allocate death benefits, the right to assign
21    death benefits, or the obligation for future premium
22    payments between the parties as it deems just.
23        (2) To the extent the court determines that its award
24    should be secured, in whole or in part, by new life
25    insurance on the payor's life, the court may only order:
26            (i) that the payor cooperate on all appropriate

 

 

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1        steps for the payee to obtain such new life insurance;
2        and
3            (ii) that the payee, at his or her sole option and
4        expense, may obtain such new life insurance on the
5        payor's life up to a maximum level of death benefit
6        coverage, or descending death benefit coverage, as is
7        set by the court, such level not to exceed a reasonable
8        amount in light of the court's award, with the payee or
9        the payee's designee being the beneficiary of such
10        life insurance.
11    In determining the maximum level of death benefit
12    coverage, the court shall take into account all relevant
13    facts and circumstances, including the impact on access to
14    life insurance by the maintenance payor. If in resolving
15    any issues under paragraph (2) of this subsection (f) a
16    court reviews any submitted or proposed application for
17    new insurance on the life of a maintenance payor, the
18    review shall be in camera.
19        (3) (Blank).
20(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
21100-520, eff. 1-1-18 (see Section 5 of P.A. 100-565 for the
22effective date of P.A. 100-520); 100-923, eff. 1-1-19.)