HB0321 95TH GENERAL ASSEMBLY

LRB095 04833 DRJ 24894 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB0321

Introduced 1/22/2007, by Rep. Chapin Rose

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-16.3	from Ch. 23, par. 10-16.3
305 ILCS 5/10-17.4	from Ch. 23, par. 10-17.4
305 ILCS 5/10-25.5
305 ILCS 5/12-12.2 new
750 ILCS 5/505	from Ch. 40, par. 505
750 ILCS 5/706.2	from Ch. 40, par. 706.2

Amends the Illinois Public Aid Code and the Illinois Marriage and Dissolution of Marriage Act. Provides that in the case of a parent who has been delinquent in the payment of child support for a period of 3 months or longer, once the parent is no longer delinquent, the court shall require the parent to post security or a bond, or give some other guarantee, of a character and amount sufficient to assure payment of at least 2 months of child support. Provides that the posting of such security does not affect the parent's obligation to continue to make child support payments as they become due. Provides that in the case of a parent who is delinquent in the payment of child support for a period of 3 months or longer, the lien on the parent's personal property shall extend to all of the parent's lawsuit proceeds and lottery winnings, if any. Provides for the Department of Healthcare and Family Services' disclosure of the names and addresses of individuals who are delinquent in the payment of child support for a period of 3 months or longer.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning child support.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Public Aid Code is amended by changing Sections 10-16.3, 10-17.4, and 10-25.5 and by adding Section 12-12.2 as follows:

(305 ILCS 5/10-16.3) (from Ch. 23, par. 10-16.3)

Sec. 10-16.3. Posting Security, Bond or Guarantee to Secure Payment. The court may require the responsible relative to post security, bond or give some other guarantee of a character and amount sufficient to assure payment of any amount of support due. In the case of a responsible relative who has been delinquent in the payment of child support under an Illinois court order or administrative order for a period of 3 months or longer, once the relative is no longer delinquent, the court shall require the responsible relative to post security or a bond, or give some other guarantee, of a character and amount sufficient to assure payment of at least 2 months of child support. The posting of such security does not affect the responsible relative's obligation to continue to make child support payments as they become due.

(Source: P.A. 84-758.)

(305 ILCS 5/10-17.4) (from Ch. 23, par. 10-17.4)

Sec. 10-17.4. Security, Bond or Guarantee to Secure Payment. The Illinois Department may provide by rule for the requiring of, or for the requesting of the court to require, a responsible relative to post security, bond or give some other guarantee of a character and amount sufficient to assure payment of any amount due under a support order entered by a court or administrative body of this or any other State on behalf of resident or non-resident persons. In the case of a responsible relative who has been delinquent in the payment of child support under an Illinois court order or administrative order for a period of 3 months or longer, the rule shall provide for security in an amount as provided in Section 10-16.3. The rule shall provide for notice to and an opportunity to be heard by each responsible relative affected and any final administrative decision rendered by the Department shall be reviewed only under and in accordance with the Administrative Review Law.

(Source: P.A. 84-758.)

(305 ILCS 5/10-25.5)

Sec. 10-25.5. Administrative liens and levies on personal property for past-due child support.

(a) The State shall have a lien on all legal and equitable interests of responsible relatives in their personal property, including any account in a financial institution as defined in Section 10-24, or in the case of an insurance company or benefit association only in accounts as defined in Section 10-24, in the amount of past-due child support owing pursuant to an order for child support entered under Sections 10-10 and 10-11 of this Code, or under the Illinois Marriage and Dissolution of Marriage Act, the Non-Support of Spouse and Children Act, the Non-Support Punishment Act, the Uniform Interstate Family Support Act, or the Illinois Parentage Act of 1984. In the case of a responsible relative who is delinquent in the payment of child support under an Illinois court order or administrative order for a period of 3 months or longer, the State's lien shall extend to all of the responsible relative's lawsuit proceeds and lottery winnings, if any.

(b) The Illinois Department shall provide by rule for notice to and an opportunity to be heard by each responsible relative affected, and any final administrative decision rendered by the Illinois Department shall be reviewed only under and in accordance with the Administrative Review Law.

(c) When enforcing a lien under subsection (a) of this Section, the Illinois Department shall have the authority to execute notices of administrative liens and levies, which shall contain the name and address of the responsible relative, a description of the property to be levied, the fact that a lien is being claimed for past-due child support, and such other information as the Illinois Department may by rule prescribe. The Illinois Department may serve the notice of lien or levy upon any financial institution where the accounts as defined in Section 10-24 of the responsible relative may be held, for encumbrance or surrender of the accounts as defined in Section 10-24 by the financial institution.

(d) The Illinois Department shall enforce its lien against the responsible relative's personal property, other than accounts as defined in Section 10-24 in financial institutions, and levy upon such personal property in the manner provided for enforcement of judgments contained in Article XII of the Code of Civil Procedure.

(e) The Illinois Department shall not be required to furnish bond or make a deposit for or pay any costs or fees of any court or officer thereof in any legal proceeding involving the lien.

(f) To protect the lien of the State for past-due child support, the Illinois Department may, from funds that are available for that purpose, pay or provide for the payment of necessary or essential repairs, purchase tax certificates, or pay or cause to be satisfied any prior liens on the property to which the lien hereunder applies.

(g) A lien on personal property under this Section shall be released in the manner provided under Article XII of the Code of Civil Procedure. Notwithstanding the foregoing, a lien under this Section on accounts as defined in Section 10-24 shall expire upon the passage of 120 days from the date of issuance of the Notice of Lien or Levy by the Illinois Department. However, the lien shall remain in effect during the pendency of any appeal or protest.

(h) A lien created under this Section is subordinate to any prior lien of the financial institution or any prior lien holder or any prior right of set-off that the financial institution may have against the assets, or in the case of an insurance company or benefit association only in the accounts as defined in Section 10-24.

(i) A financial institution has no obligation under this Section to hold, encumber, or surrender the assets, or in the case of an insurance company or benefit association only the accounts as defined in Section 10-24, until the financial institution has been properly served with a subpoena, summons, warrant, court or administrative order, or administrative lien and levy requiring that action.

(Source: P.A. 90-18, eff. 7-1-97; 91-613, eff. 10-1-99.)

(305 ILCS 5/12-12.2 new)

Sec. 12-12.2. Disclosure if 3 months delinquent in payment of child support.

(a) The Director of Healthcare and Family Services shall disclose on the Department's web site the names and addresses of all responsible relatives who are delinquent in the payment of child support under an Illinois court order or administrative order for a period of 3 months or longer. The Director also shall disclose the amount of the child support arrearage and any other information the Director deems appropriate. The information disclosed under this subsection shall also be available for public inspection at any of the Department's offices in this State.

(b) At least 90 days before the disclosure under subsection (a) of the name of an individual who is in arrears in his or her child support obligations, the Director shall mail a written notice to the individual by certified mail addressed to the individual's last known address. The notice shall detail the amount of the arrearage and the Department's intent to disclose the arrearage. If the arrearage is not paid 60 days after the notice was delivered to the individual or the Department has been notified that delivery was refused, and the individual has not, since the mailing of the notice, entered into a written agreement with the Department for payment of the arrearage, the Director shall disclose the individual's arrearage under subsection (a).

(c) An individual in arrears in his or her child support obligations under an Illinois court order or administrative order is not subject to disclosure under subsection (a) if (1) a written agreement for payment exists between the individual and the Department or (2) the arrearage is the subject of an administrative hearing, administrative review, or judicial review.

(d) A disclosure made by the Director in a good faith effort to comply with this Section may not be considered a violation of any confidentiality laws.

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Sections 505 and 706.2 as follows:

(750 ILCS 5/505) (from Ch. 40, par. 505)

Sec. 505. Child support; contempt; penalties.

(a) In a proceeding for dissolution of marriage, legal separation, declaration of invalidity of marriage, a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, a proceeding for modification of a previous order for child support under Section 510 of this Act, or any proceeding authorized under Section 501 or 601 of this Act, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct. The duty of support owed to a child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child. For purposes of this Section, the term "child" shall include any child under age 18 and any child under age 19 who is still attending high school.

(1) The Court shall determine the minimum amount of support by using the following guidelines:

(2) The above guidelines shall be applied in each case unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child in light of evidence including but not limited to one or more of the following relevant factors:

(a) the financial resources and needs of the child;

(b) the financial resources and needs of the custodial parent;

(c) the standard of living the child would have enjoyed had the marriage not been dissolved;

(d) the physical and emotional condition of the child, and his educational needs; and

(e) the financial resources and needs of the non-custodial parent.

If the court deviates from the guidelines, the court's finding shall state the amount of support that would have been required under the guidelines, if determinable. The court shall include the reason or reasons for the variance from the guidelines.

(3) "Net income" is defined as the total of all income from all sources, minus the following deductions:

(a) Federal income tax (properly calculated withholding or estimated payments);

(b) State income tax (properly calculated withholding or estimated payments);

(c) Social Security (FICA payments);

(d) Mandatory retirement contributions required by law or as a condition of employment;

(e) Union dues;

(f) Dependent and individual health/hospitalization insurance premiums;

(g) Prior obligations of support or maintenance actually paid pursuant to a court order;

(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.

(4) In cases where the court order provides for health/hospitalization insurance coverage pursuant to Section 505.2 of this Act, the premiums for that insurance, or that portion of the premiums for which the supporting party is responsible in the case of insurance provided through an employer's health insurance plan where the employer pays a portion of the premiums, shall be subtracted from net income in determining the minimum amount of support to be ordered.

(4.5) In a proceeding for child support following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the supporting party's net income for the prior period was the same as his or her net income at the time the order for current support is entered.

(5) If the net income cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the payor's net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.

(6) If (i) the non-custodial parent was properly served with a request for discovery of financial information relating to the non-custodial parent's ability to provide child support, (ii) the non-custodial parent failed to comply with the request, despite having been ordered to do so by the court, and (iii) the non-custodial parent is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the non-custodial parent's ability to provide child support that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further foundation for its admission.

(a-5) In an action to enforce an order for support based on the respondent's failure to make support payments as required by the order, notice of proceedings to hold the respondent in contempt for that failure may be served on the respondent by personal service or by regular mail addressed to the respondent's last known address. The respondent's last known address may be determined from records of the clerk of the court, from the Federal Case Registry of Child Support Orders, or by any other reasonable means.

(b) Failure of either parent to comply with an order to pay support shall be punishable as in other cases of contempt. In addition to other penalties provided by law the Court may, after finding the parent guilty of contempt, order that the parent be:

(1) placed on probation with such conditions of probation as the Court deems advisable;

(2) sentenced to periodic imprisonment for a period not to exceed 6 months; provided, however, that the Court may permit the parent to be released for periods of time during the day or night to:

(A) work; or

(B) conduct a business or other self-employed occupation.

The Court may further order any part or all of the earnings of a parent during a sentence of periodic imprisonment paid to the Clerk of the Circuit Court or to the parent having custody or to the guardian having custody of the children of the sentenced parent for the support of said children until further order of the Court.

If there is a unity of interest and ownership sufficient to render no financial separation between a non-custodial parent and another person or persons or business entity, the court may pierce the ownership veil of the person, persons, or business entity to discover assets of the non-custodial parent held in the name of that person, those persons, or that business entity. The following circumstances are sufficient to authorize a court to order discovery of the assets of a person, persons, or business entity and to compel the application of any discovered assets toward payment on the judgment for support:

(1) the non-custodial parent and the person, persons, or business entity maintain records together.

(2) the non-custodial parent and the person, persons, or business entity fail to maintain an arms length relationship between themselves with regard to any assets.

(3) the non-custodial parent transfers assets to the person, persons, or business entity with the intent to perpetrate a fraud on the custodial parent.

With respect to assets which are real property, no order entered under this paragraph shall affect the rights of bona fide purchasers, mortgagees, judgment creditors, or other lien holders who acquire their interests in the property prior to the time a notice of lis pendens pursuant to the Code of Civil Procedure or a copy of the order is placed of record in the office of the recorder of deeds for the county in which the real property is located.

The court may also order in cases where the parent is 90 days or more delinquent in payment of support or has been adjudicated in arrears in an amount equal to 90 days obligation or more, that the parent's Illinois driving privileges be suspended until the court determines that the parent is in compliance with the order of support. The court may also order that the parent be issued a family financial responsibility driving permit that would allow limited driving privileges for employment and medical purposes in accordance with Section 7-702.1 of the Illinois Vehicle Code. The clerk of the circuit court shall certify the order suspending the driving privileges of the parent or granting the issuance of a family financial responsibility driving permit to the Secretary of State on forms prescribed by the Secretary. Upon receipt of the authenticated documents, the Secretary of State shall suspend the parent's driving privileges until further order of the court and shall, if ordered by the court, subject to the provisions of Section 7-702.1 of the Illinois Vehicle Code, issue a family financial responsibility driving permit to the parent.

In addition to the penalties or punishment that may be imposed under this Section, any person whose conduct constitutes a violation of Section 15 of the Non-Support Punishment Act may be prosecuted under that Act, and a person convicted under that Act may be sentenced in accordance with that Act. The sentence may include but need not be limited to a requirement that the person perform community service under Section 50 of that Act or participate in a work alternative program under Section 50 of that Act. A person may not be required to participate in a work alternative program under Section 50 of that Act if the person is currently participating in a work program pursuant to Section 505.1 of this Act.

A support obligation, or any portion of a support obligation, which becomes due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure. An order for support entered or modified on or after January 1, 2006 shall contain a statement that a support obligation required under the order, or any portion of a support obligation required under the order, that becomes due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure. Failure to include the statement in the order for support does not affect the validity of the order or the accrual of interest as provided in this Section.

(c) A one-time charge of 20% is imposable upon the amount of past-due child support owed on July 1, 1988 which has accrued under a support order entered by the court. The charge shall be imposed in accordance with the provisions of Section 10-21 of the Illinois Public Aid Code and shall be enforced by the court upon petition.

(d) Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. A lien arises by operation of law against the real and personal property of the noncustodial parent for each installment of overdue support owed by the noncustodial parent. In the case of a noncustodial parent who is delinquent in the payment of child support under an Illinois court order for a period of 3 months or longer, the lien shall extend to all of the noncustodial parent's lawsuit proceeds and lottery winnings, if any.

(e) When child support is to be paid through the clerk of the court in a county of 1,000,000 inhabitants or less, the order shall direct the obligor to pay to the clerk, in addition to the child support payments, all fees imposed by the county board under paragraph (3) of subsection (u) of Section 27.1 of the Clerks of Courts Act. Unless paid in cash or pursuant to an order for withholding, the payment of the fee shall be by a separate instrument from the support payment and shall be made to the order of the Clerk.

(f) All orders for support, when entered or modified, shall include a provision requiring the obligor to notify the court and, in cases in which a party is receiving child and spouse services under Article X of the Illinois Public Aid Code, the Illinois Department of Healthcare and Family Services Public Aid, within 7 days, (i) of the name and address of any new employer of the obligor, (ii) whether the obligor has access to health insurance coverage through the employer or other group coverage and, if so, the policy name and number and the names of persons covered under the policy, and (iii) of any new residential or mailing address or telephone number of the non-custodial parent. In any subsequent action to enforce a support order, upon a sufficient showing that a diligent effort has been made to ascertain the location of the non-custodial parent, service of process or provision of notice necessary in the case may be made at the last known address of the non-custodial parent in any manner expressly provided by the Code of Civil Procedure or this Act, which service shall be sufficient for purposes of due process.

(g) An order for support shall include a date on which the current support obligation terminates. The termination date shall be no earlier than the date on which the child covered by the order will attain the age of 18. However, if the child will not graduate from high school until after attaining the age of 18, then the termination date shall be no earlier than the earlier of the date on which the child's high school graduation will occur or the date on which the child will attain the age of 19. The order for support shall state that the termination date does not apply to any arrearage that may remain unpaid on that date. Nothing in this subsection shall be construed to prevent the court from modifying the order or terminating the order in the event the child is otherwise emancipated.

(g-5) If there is an unpaid arrearage or delinquency (as those terms are defined in the Income Withholding for Support Act) equal to at least one month's support obligation on the termination date stated in the order for support or, if there is no termination date stated in the order, on the date the child attains the age of majority or is otherwise emancipated, the periodic amount required to be paid for current support of that child immediately prior to that date shall automatically continue to be an obligation, not as current support but as periodic payment toward satisfaction of the unpaid arrearage or delinquency. That periodic payment shall be in addition to any periodic payment previously required for satisfaction of the arrearage or delinquency. The total periodic amount to be paid toward satisfaction of the arrearage or delinquency may be enforced and collected by any method provided by law for enforcement and collection of child support, including but not limited to income withholding under the Income Withholding for Support Act. Each order for support entered or modified on or after the effective date of this amendatory Act of the 93rd General Assembly must contain a statement notifying the parties of the requirements of this subsection. Failure to include the statement in the order for support does not affect the validity of the order or the operation of the provisions of this subsection with regard to the order. This subsection shall not be construed to prevent or affect the establishment or modification of an order for support of a minor child or the establishment or modification of an order for support of a non-minor child or educational expenses under Section 513 of this Act.

(h) An order entered under this Section shall include a provision requiring the obligor to report to the obligee and to the clerk of court within 10 days each time the obligor obtains new employment, and each time the obligor's employment is terminated for any reason. The report shall be in writing and shall, in the case of new employment, include the name and address of the new employer. Failure to report new employment or the termination of current employment, if coupled with nonpayment of support for a period in excess of 60 days, is indirect criminal contempt. For any obligor arrested for failure to report new employment bond shall be set in the amount of the child support that should have been paid during the period of unreported employment. An order entered under this Section shall also include a provision requiring the obligor and obligee parents to advise each other of a change in residence within 5 days of the change except when the court finds that the physical, mental, or emotional health of a party or that of a child, or both, would be seriously endangered by disclosure of the party's address.

(i) The court does not lose the powers of contempt, driver's license suspension, or other child support enforcement mechanisms, including, but not limited to, criminal prosecution as set forth in this Act, upon the emancipation of the minor child or children.

(Source: P.A. 93-148, eff. 7-10-03; 93-1061, eff. 1-1-05; 94-90, eff. 1-1-06; revised 12-15-05.)

(750 ILCS 5/706.2) (from Ch. 40, par. 706.2)

Sec. 706.2. Posting Security, Bond or Guarantee to Secure Payment. The court may require a parent to post security, bond or give some other guarantee of a character and amount sufficient to assure payment of any amount of support due. In the case of a parent who has been delinquent in the payment of child support under an Illinois court order for a period of 3 months or longer, once the parent is no longer delinquent, the court shall require the parent to post security or a bond, or give some other guarantee, of a character and amount sufficient to assure payment of at least 2 months of child support. The posting of such security does not affect the parent's obligation to continue to make child support payments as they become due.

(Source: P.A. 84-758.)