Full Text of HB0233 95th General Assembly
HB0233ham001 95TH GENERAL ASSEMBLY
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Judiciary I - Civil Law Committee
Filed: 3/21/2007
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09500HB0233ham001 |
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LRB095 04636 AJO 33733 a |
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| AMENDMENT TO HOUSE BILL 233
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| AMENDMENT NO. ______. Amend House Bill 233 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Illinois Marriage and Dissolution of | 5 |
| Marriage Act is amended by changing Sections 103, 302, 304, | 6 |
| 403, 501, 511, 604, and 606 as follows:
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| (750 ILCS 5/103) (from Ch. 40, par. 103)
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| Sec. 103. Trial by Jury.) | 9 |
| (a) There shall be no trial by jury
under this Act , except | 10 |
| where authorized under subsection (b) .
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| (b) A jury trial pilot program shall be established in | 12 |
| Suburban Municipal District 4 of the Circuit Court of Cook | 13 |
| County. Under the jury trial pilot program, cases in Suburban | 14 |
| Municipal District 4 may be heard by the court with a jury only | 15 |
| to the extent permitted by this Act. The Supreme Court and the | 16 |
| Circuit Court of Cook County shall adopt rules to govern the |
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| jury trial pilot program, including the starting date for the | 2 |
| jury trial pilot program. The jury trial pilot program shall | 3 |
| end 2 years after the starting date. Only cases that are | 4 |
| commenced after the starting date shall be eligible to be heard | 5 |
| by the court with a jury under the jury trial pilot program. | 6 |
| Any case that is heard by the court with a jury under the jury | 7 |
| trial pilot program and is still pending when the jury trial | 8 |
| pilot program ends may be heard to final judgment by the court | 9 |
| with a jury. The Supreme Court may make any findings, reports, | 10 |
| or recommendations it wishes to make regarding the jury trial | 11 |
| pilot program.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/302) (from Ch. 40, par. 302)
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| Sec. 302. Time of Commencement.) (a) A declaration of
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| invalidity under paragraphs (1) through (3) of Section 301
may | 16 |
| be sought by any of the following persons and must be
commenced | 17 |
| within the times specified:
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| (1) for any of the reasons set forth in paragraph (1) of
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| Section 301, by either party or by the legal representative
of | 20 |
| the party who lacked capacity to consent, no later than
90 days | 21 |
| after the petitioner obtained knowledge of the described
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| condition;
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| (2) for the reason set forth in paragraph (2) of Section | 24 |
| 301,
by either party, no later than one year after the | 25 |
| petitioner
obtained knowledge of the described condition;
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| (3) for the reason set forth in paragraph (3) of Section | 2 |
| 301,
by the underaged party, his parent or guardian, prior to | 3 |
| the time
the underaged party reaches the age at which he could | 4 |
| have married
without needing to satisfy the omitted | 5 |
| requirement.
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| (b) In no event may a declaration of invalidity of marriage | 7 |
| be
sought after the death of either party to the marriage under
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| subsections (1), (2) and (3) of Section 301.
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| (c) A declaration of invalidity for the reason set forth
in | 10 |
| paragraph (4) of Section 301 may be sought by either party,
the | 11 |
| legal spouse in case of a bigamous marriage, the State's
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| Attorney or a child of either party, at any time not to exceed
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| 3 years following the death of the first party to die. | 14 |
| (d) This subsection (d) applies only to the jury trial | 15 |
| pilot program established under Section 103. A case may be | 16 |
| heard by the court with a jury only if a party demands a trial | 17 |
| by jury in accordance with the Code of Civil Procedure and the | 18 |
| other party agrees to have the case heard by the court with a | 19 |
| jury. The grounds for declaration of invalidity of marriage | 20 |
| shall be heard by the court without a jury.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/304) (from Ch. 40, par. 304)
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| Sec. 304. Retroactivity.) | 24 |
| (a) Unless the court finds, after
a consideration of all | 25 |
| relevant circumstances, including
the effect of a retroactive |
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| judgment on third parties, that
the interests of justice would | 2 |
| be served by making the judgment
not retroactive, it shall | 3 |
| declare the marriage invalid as of the
date of the marriage. | 4 |
| The provisions of this Act relating to
property rights of the | 5 |
| spouses, maintenance, support and custody
of children on | 6 |
| dissolution of marriage are applicable to non-retroactive
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| judgments of invalidity of marriage only. | 8 |
| (b) This subsection (b) applies only to the jury trial | 9 |
| pilot program established under Section 103. If the court | 10 |
| declares a judgment of invalidity of marriage to be | 11 |
| non-retroactive and the case is heard by the court with a jury, | 12 |
| contested issues relating to
property rights of the spouses, | 13 |
| maintenance, support, and custody
of children shall be heard by | 14 |
| the court with a jury.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/403) (from Ch. 40, par. 403)
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| Sec. 403. Pleadings - Commencement - Abolition of Existing | 18 |
| Defenses
- Procedure.)
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| (a) The petition for dissolution of marriage or legal
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| separation shall be verified and shall minimally set forth:
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| (1) the age, occupation and residence of each party and | 22 |
| his length
of residence in this State;
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| (2) the date of the marriage and the place at which it | 24 |
| was
registered;
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| (2.5) whether a petition for dissolution of marriage is |
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| pending in
any other county or state;
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| (3) that the jurisdictional requirements of subsection | 3 |
| (a) of
Section 401 have been met and that there exist | 4 |
| grounds for dissolution of
marriage or legal separation. | 5 |
| The petitioner need only allege the name
of the particular | 6 |
| grounds relied upon, which shall constitute a legally
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| sufficient allegation of the grounds; and the respondent | 8 |
| shall be
entitled to demand a bill of particulars prior to | 9 |
| trial setting forth
the facts constituting the grounds, if | 10 |
| he so chooses. The petition must
also contain:
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| (4) the names, ages and addresses of all living | 12 |
| children of the
marriage and whether the wife is pregnant;
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| (5) any arrangements as to support, custody and | 14 |
| visitation of the
children and maintenance of a spouse; and
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| (6) the relief sought.
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| (b) Either or both parties to the marriage may initiate the
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| proceeding. | 18 |
| (b-5) This subsection (b-5) applies only to the jury trial | 19 |
| pilot program established under Section 103. A case may be | 20 |
| heard by the court with a jury only if a party demands a trial | 21 |
| by jury in accordance with the Code of Civil Procedure and the | 22 |
| other party agrees to have the case heard by the court with a | 23 |
| jury.
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| (c) The previously existing defense of recrimination is | 25 |
| abolished.
The defense of condonation is abolished only as to | 26 |
| condonations
occurring after a proceeding is filed under this |
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| Act and after the
court has acquired jurisdiction over the | 2 |
| respondent.
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| (d) The court may join additional parties necessary and | 4 |
| proper for
the exercise of its authority under this Act.
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| (e) Contested trials shall be on a bifurcated basis with | 6 |
| the grounds
being tried first. Upon the court determining that | 7 |
| the grounds exist,
the court may allow additional time for the
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| parties to settle
amicably the remaining issues before resuming | 9 |
| the trial, or may
proceed immediately to trial on the
remaining | 10 |
| issues. In cases where the grounds are uncontested and proved
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| as in cases of default, the trial on all other remaining issues | 12 |
| shall proceed
immediately, if so ordered by the court or if the | 13 |
| parties so stipulate,
issue on the pleadings notwithstanding.
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| (e-5) This subsection (e-5) applies only to the jury trial | 15 |
| pilot program established under Section 103. Contested trials | 16 |
| shall be on a bifurcated basis with the grounds
being tried | 17 |
| first. The grounds shall be heard by the court without a jury. | 18 |
| Upon the court determining that the grounds exist,
the court | 19 |
| may allow additional time for the
parties to settle
amicably | 20 |
| the remaining issues before resuming the trial, or may
proceed | 21 |
| immediately to trial on the
remaining issues
after the court | 22 |
| has impaneled the jury. Uncontested issues shall not be | 23 |
| submitted to the jury.
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| (f) Even if no bill of particulars shall have been filed | 25 |
| demanding
the specification of the particular facts underlying | 26 |
| the allegation of
the grounds, the court shall nonetheless |
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| require proper and sufficient
proof of the existence of the | 2 |
| grounds.
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| (Source: P.A. 90-174, eff. 10-1-97.)
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| (750 ILCS 5/501) (from Ch. 40, par. 501)
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| Sec. 501. Temporary Relief.) In all proceedings under this | 6 |
| Act,
temporary relief shall be as follows:
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| (a) Either party may move for:
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| (1) temporary maintenance or temporary support of a | 9 |
| child of the
marriage entitled to support, accompanied by | 10 |
| an affidavit as to the
factual basis for the relief | 11 |
| requested;
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| (2) a temporary restraining order or preliminary | 13 |
| injunction, accompanied
by affidavit showing a
factual | 14 |
| basis for any of the following relief:
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| (i) restraining any person from transferring, | 16 |
| encumbering,
concealing or otherwise disposing of any | 17 |
| property except in the usual
course of business or for | 18 |
| the necessities of life, and, if so
restrained, | 19 |
| requiring him to notify the moving party and his | 20 |
| attorney of
any proposed extraordinary expenditures | 21 |
| made after the order is issued;
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| (ii) enjoining a party from removing a child from | 23 |
| the jurisdiction
of the court;
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| (iii) enjoining a party from striking or | 25 |
| interfering with the
personal liberty of the other |
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| party or of any child; or
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| (iv) providing other injunctive relief proper in | 3 |
| the circumstances;
or
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| (3) other appropriate temporary relief.
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| (b) The court may issue a temporary restraining order | 6 |
| without
requiring notice to the other party only if it finds, | 7 |
| on the basis of
the moving affidavit or other evidence, that | 8 |
| irreparable injury will
result to the moving party if no order | 9 |
| is issued until the time for
responding has elapsed.
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| (c) A response hereunder may be filed within 21 days after | 11 |
| service
of notice of motion or at the time specified in the | 12 |
| temporary
restraining order.
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| (c-1) As used in this subsection (c-1), "interim attorney's | 14 |
| fees and
costs" means attorney's fees and costs
assessed
from | 15 |
| time to time while a case is pending, in favor of the | 16 |
| petitioning party's
current counsel, for reasonable fees and | 17 |
| costs either already incurred or to be
incurred, and "interim | 18 |
| award" means an award of interim attorney's fees and
costs. | 19 |
| Interim awards shall be governed by the following:
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| (1) Except for good cause shown, a proceeding for (or | 21 |
| relating to) interim
attorney's fees and costs shall be | 22 |
| nonevidentiary, summary in nature, and
expeditious. When a | 23 |
| party files a petition for interim attorney's fees and
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| costs supported by one or more
affidavits that delineate | 25 |
| relevant factors, the court (or a hearing officer)
shall | 26 |
| assess an interim award after affording the opposing party |
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| a reasonable
opportunity to file a responsive pleading. A | 2 |
| responsive pleading shall set out
the amount of each | 3 |
| retainer or other payment or payments, or both, previously
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| paid to the responding party's counsel by or on behalf of | 5 |
| the responding party.
In assessing an
interim award, the | 6 |
| court shall consider all relevant factors, as presented,
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| that appear reasonable and necessary, including:
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| (A) the income and property of each party, | 9 |
| including alleged marital
property within the sole | 10 |
| control of one party and alleged non-marital property
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| within access to a party;
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| (B) the needs of each party;
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| (C) the realistic earning capacity of each party;
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| (D) any impairment to present earning capacity of | 15 |
| either party,
including
age and physical and emotional | 16 |
| health;
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| (E) the standard of living established during the | 18 |
| marriage;
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| (F) the degree of complexity of the issues, | 20 |
| including custody, valuation
or division (or both) of | 21 |
| closely held businesses, and tax planning, as well as
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| reasonable needs for expert investigations or expert | 23 |
| witnesses, or both;
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| (G) each party's access to relevant information;
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| (H) the amount of the payment or payments made or | 26 |
| reasonably expected to
be made to the attorney for the |
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| other party; and
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| (I) any other factor that the court expressly finds | 3 |
| to be just and
equitable.
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| (2) Any assessment of an interim award (including one | 5 |
| pursuant to an
agreed
order) shall be without prejudice to | 6 |
| any final allocation and without prejudice
as to any claim | 7 |
| or right of either party or any counsel of record at the | 8 |
| time
of the award. Any such claim or right may be presented | 9 |
| by the appropriate
party or counsel at a hearing on | 10 |
| contribution under subsection (j) of Section
503 or a | 11 |
| hearing on counsel's fees under subsection (c) of Section | 12 |
| 508. Unless
otherwise ordered by the court at the final | 13 |
| hearing between the parties or in a
hearing under | 14 |
| subsection (j) of Section 503 or subsection (c) of
Section | 15 |
| 508, interim awards, as well as the aggregate of all other | 16 |
| payments
by each party
to
counsel and related payments to | 17 |
| third parties, shall be deemed to have been
advances from | 18 |
| the parties' marital estate. Any portion of any interim | 19 |
| award
constituting an overpayment shall be remitted back to | 20 |
| the appropriate party or
parties, or, alternatively, to | 21 |
| successor counsel, as the court determines and
directs, | 22 |
| after notice.
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| (3) In any proceeding under this subsection (c-1), the | 24 |
| court (or hearing
officer) shall assess an interim award | 25 |
| against an opposing party in an
amount necessary to enable | 26 |
| the petitioning party to participate adequately in
the |
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| litigation, upon findings that the party from whom | 2 |
| attorney's fees and
costs are sought has the financial | 3 |
| ability to pay reasonable amounts and that
the party | 4 |
| seeking attorney's fees and costs lacks sufficient access | 5 |
| to assets
or income to pay reasonable amounts. In | 6 |
| determining an award, the
court shall consider whether | 7 |
| adequate participation in the litigation requires
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| expenditure of more fees and costs for a party that is not | 9 |
| in control of assets
or relevant information. Except for | 10 |
| good cause shown, an interim award shall
not be less than | 11 |
| payments made or reasonably expected to be made to the | 12 |
| counsel
for the other party. If the court finds that both | 13 |
| parties
lack financial ability or access to assets or | 14 |
| income for reasonable attorney's
fees and costs, the court | 15 |
| (or hearing officer) shall enter an order that
allocates | 16 |
| available funds for each party's counsel, including | 17 |
| retainers or
interim payments, or both, previously paid, in | 18 |
| a manner that achieves
substantial parity between the | 19 |
| parties.
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| (4) The changes to this Section 501 made by this | 21 |
| amendatory Act of 1996
apply to cases pending on or after | 22 |
| June 1, 1997, except as otherwise provided
in Section 508.
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| (d) A temporary order entered under this Section:
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| (1) does not prejudice the rights of the parties or the | 25 |
| child which
are to be adjudicated at subsequent hearings in | 26 |
| the proceeding;
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| (2) may be revoked or modified before final judgment, | 2 |
| on a showing
by affidavit and upon hearing; and
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| (3) terminates when the final judgment is entered or | 4 |
| when the
petition for dissolution of marriage or legal | 5 |
| separation or declaration
of invalidity of marriage is | 6 |
| dismissed.
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| (e) This subsection (e) applies only to the jury trial | 8 |
| pilot program established under Section 103. All proceedings | 9 |
| for temporary relief shall be heard by the court without a | 10 |
| jury.
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| (Source: P.A. 89-712, eff. 6-1-97.)
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| (750 ILCS 5/511) (from Ch. 40, par. 511)
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| Sec. 511. Procedure. A judgment of dissolution or of
legal | 14 |
| separation or of declaration of invalidity of marriage
may be | 15 |
| enforced or modified by order of court pursuant to petition.
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| (a) Any judgment entered within this State may be enforced
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| or modified in the judicial circuit wherein such judgment was
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| entered or last modified by the filing of a petition with
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| notice mailed to the respondent at his last
known address, or | 20 |
| by the issuance of summons to the respondent.
If neither party | 21 |
| continues to reside in the county wherein such judgment
was | 22 |
| entered or last modified, the court on the motion of either | 23 |
| party or on
its own motion may transfer a post-judgment | 24 |
| proceeding, including a
proceeding under the Income | 25 |
| Withholding for Support Act, to another county or judicial
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| circuit, as appropriate, where either party resides. If the | 2 |
| post-judgment
proceeding is with respect to maintenance or | 3 |
| support, any such transfer
shall be to the county or judicial | 4 |
| circuit wherein the recipient or
proposed recipient of such | 5 |
| maintenance or support resides.
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| (b) In any post-judgment proceeding to enforce or modify in
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| one judicial circuit the judgment of another judicial circuit
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| of this State, the moving party shall commence the proceeding
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| by filing a petition establishing the judgment and attaching
a | 10 |
| copy of the judgment as a part of the petition. The parties
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| shall continue to be designated as in the original proceeding.
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| Notice of the filing of the petition shall be mailed to the
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| clerk of the court wherein the judgment was entered and last
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| modified in the same manner as notice is mailed when | 15 |
| registering
a foreign judgment. Summons shall be served as | 16 |
| provided by law.
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| (c) In any post-judgment proceeding to enforce or modify | 18 |
| the
judgment of another state, the moving party shall commence | 19 |
| the
proceeding by filing a petition to enroll that judgment,
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| attaching a copy thereof as a part of the petition and proceed
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| as provided for in paragraph (b) hereof.
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| (d) In any post-judgment proceeding to enforce a judgment | 23 |
| or order for
payment of maintenance or support, including a | 24 |
| proceeding under the Income
Withholding for Support Act, where | 25 |
| the terms of such judgment or order provide
that
payments of | 26 |
| such maintenance or support are to be made to the clerk of the
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| court and where neither party continues to reside in the county | 2 |
| wherein
such judgment or order was entered or last modified, | 3 |
| the court on the
motion of either party or on its own motion | 4 |
| may transfer the collection of
the maintenance or support to | 5 |
| the clerk of the court in another county or
judicial circuit, | 6 |
| as appropriate, wherein the recipient of the maintenance
or | 7 |
| support payments resides.
| 8 |
| (e) This subsection (e) applies only to the jury trial | 9 |
| pilot program established under Section 103. All post-judgment | 10 |
| proceedings to enforce or modify a judgment of dissolution,
| 11 |
| legal separation, or invalidity of marriage shall be heard by | 12 |
| the court without a jury.
| 13 |
| (Source: P.A. 90-673, eff. 1-1-99.)
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| (750 ILCS 5/604) (from Ch. 40, par. 604)
| 15 |
| Sec. 604. Interviews.) (a)
The court may interview the | 16 |
| child in chambers
to ascertain the child's wishes as to his | 17 |
| custodian and as to visitation.
Counsel shall be present at the | 18 |
| interview unless otherwise agreed upon by
the parties. The | 19 |
| court shall cause a court reporter to be present who shall
make | 20 |
| a complete record of the interview instantaneously to be part | 21 |
| of the
record in the case.
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| (a-5) This subsection (a-5) applies only to the jury trial | 23 |
| pilot program established under Section 103. In a case heard by | 24 |
| the court with a jury, the court may not interview the child in | 25 |
| chambers
to ascertain the child's wishes as to his custodian |
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| and as to visitation.
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| (b) The court may seek the advice of professional | 3 |
| personnel, whether or
not employed by the court on a regular | 4 |
| basis. The advice given shall be
in writing and made available | 5 |
| by the court to counsel. Counsel may examine,
as a witness, any | 6 |
| professional personnel consulted by the court, designated
as a | 7 |
| court's witness.
| 8 |
| (Source: P.A. 80-923.)
| 9 |
| (750 ILCS 5/606) (from Ch. 40, par. 606)
| 10 |
| Sec. 606. Hearings.
| 11 |
| (a) Custody proceedings shall receive priority in
being set | 12 |
| for hearing.
| 13 |
| (b) The court may tax as costs the payment of necessary | 14 |
| travel and other
expenses incurred by any person whose presence | 15 |
| at the hearing the court
deems necessary to determine the best | 16 |
| interest of the child.
| 17 |
| (c)
The court, without a jury, shall determine questions of | 18 |
| law and fact.
If it finds that a public hearing may be | 19 |
| detrimental to the child's best
interest, the court may exclude | 20 |
| the public from a custody hearing, but may
admit any person who | 21 |
| has a direct and legitimate interest in the particular
case or | 22 |
| a legitimate educational or research interest in the work of | 23 |
| the court.
| 24 |
| (c-5) This subsection (c-5) applies only to the jury trial | 25 |
| pilot program established under Section 103. If a case is heard |
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| by the court with a jury under Part III or Part IV and custody | 2 |
| is contested, the court shall determine questions of law and | 3 |
| the jury shall determine questions of fact. If the court finds | 4 |
| that a public hearing may be detrimental to the child's best
| 5 |
| interest, the court may exclude the public from a custody | 6 |
| hearing, but may
admit any person who has a direct and | 7 |
| legitimate interest in the particular
case or a legitimate | 8 |
| educational or research interest in the work of the court.
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| (d) If the court finds it necessary, in order to protect | 10 |
| the child's
welfare,
that the record of any interview, report, | 11 |
| investigation, or testimony in a
custody
proceeding be kept | 12 |
| secret, the court may make an appropriate order sealing the
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| record.
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| (e) Previous statements made by the child relating to any | 15 |
| allegations
that the child is an abused or neglected child | 16 |
| within the meaning of the
Abused and Neglected Child Reporting | 17 |
| Act, or an abused or neglected minor
within the meaning of the | 18 |
| Juvenile Court Act of 1987, shall be admissible
in evidence in | 19 |
| a hearing concerning custody of or visitation with the
child. | 20 |
| No such statement, however, if uncorroborated and not subject | 21 |
| to
cross-examination, shall be sufficient in itself to support | 22 |
| a finding of
abuse or neglect.
| 23 |
| (Source: P.A. 87-1081.)".
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