HB0619 95TH GENERAL ASSEMBLY

LRB095 07308 DRJ 27447 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB0619

Introduced 2/5/2007, by Rep. Cynthia Soto

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-7	from Ch. 23, par. 10-7
305 ILCS 5/10-10	from Ch. 23, par. 10-10
305 ILCS 5/10-11	from Ch. 23, par. 10-11

Amends the Illinois Public Aid Code. Provides that before a court or the Department of Healthcare and Family Services' Child and Spouse Support Unit enters an order for support, the court or Unit must determine whether another order has been entered requiring the responsible relative to contribute to the support of the person requiring support. Provides that if the court or the Child and Spouse Support Unit determines that another such order has been entered, the court or Unit must ensure that its order does not require the responsible relative to make any payment of support that duplicates a payment required under the other order. Effective immediately.

A BILL FOR

AN ACT in relation to 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 10-7, 10-10, and 10-11 as follows:

(305 ILCS 5/10-7) (from Ch. 23, par. 10-7)

Sec. 10-7. Notice of support due.

(a) When an administrative enforcement unit has determined that a responsible relative is financially able to contribute to the support of an applicant or recipient, the responsible relative shall be notified by mailing him a copy of the determination by United States registered or certified mail, advising him of his legal obligation to make support payments for such period or periods of time, definite in duration or indefinite, as the circumstances require. The notice shall direct payment as provided in Section 10-8. Where applicable, the determination and notice may include a demand for reimbursement for emergency aid granted an applicant or recipient during the period between the application and determination of the relative's obligation for support and for aid granted during any subsequent period the responsible relative was financially able to provide support but failed or refused to do so.

(b) In the alternative, when support is sought on behalf of applicants for or recipients of financial aid under Article IV of this Act and other persons who are given access to the child support enforcement services of this Article as provided in Section 10-1, the administrative enforcement unit shall not be required to send the notice and may enter an administrative order immediately under the provisions of Section 10-11. The order shall be based upon the determination made under the provisions of Section 10-6 or, in instances of default, upon the needs of the persons for whom support is sought. In addition to requiring payment of future support, the administrative order may require payment of support for a period before the date the order is entered. The amount of support to be paid for the prior period shall be determined under the guidelines established by the Illinois Department pursuant to Section 10-3. The order shall direct payment as provided in Section 10-10.

Before entering an administrative order for support under this subsection, the administrative enforcement unit must determine whether a court has entered an order requiring the responsible relative to contribute to the support of the person or persons requiring support. If the administrative enforcement unit determines that a court has entered such an order, the unit must ensure that its order entered under this subsection does not require the responsible relative to make any payment of support that duplicates a payment ordered by the court.

(Source: P.A. 92-590, eff. 7-1-02.)

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

Sec. 10-10. Court enforcement; applicability also to persons who are not applicants or recipients. Except where the Illinois Department, by agreement, acts for the local governmental unit, as provided in Section 10-3.1, local governmental units shall refer to the State's Attorney or to the proper legal representative of the governmental unit, for judicial enforcement as herein provided, instances of non-support or insufficient support when the dependents are applicants or recipients under Article VI. The Child and Spouse Support Unit established by Section 10-3.1 may institute in behalf of the Illinois Department any actions under this Section for judicial enforcement of the support liability when the dependents are (a) applicants or recipients under Articles III, IV, V or VII; (b) applicants or recipients in a local governmental unit when the Illinois Department, by agreement, acts for the unit; or (c) non-applicants or non-recipients who are receiving child support enforcement services under this Article X, as provided in Section 10-1. Where the Child and Spouse Support Unit has exercised its option and discretion not to apply the provisions of Sections 10-3 through 10-8, the failure by the Unit to apply such provisions shall not be a bar to bringing an action under this Section.

Action shall be brought in the circuit court to obtain support, or for the recovery of aid granted during the period such support was not provided, or both for the obtainment of support and the recovery of the aid provided. Actions for the recovery of aid may be taken separately or they may be consolidated with actions to obtain support. Such actions may be brought in the name of the person or persons requiring support, or may be brought in the name of the Illinois Department or the local governmental unit, as the case requires, in behalf of such persons.

The court may enter such orders for the payment of moneys for the support of the person as may be just and equitable and may direct payment thereof for such period or periods of time as the circumstances require, including support for a period before the date the order for support is entered. The order may be entered against any or all of the defendant responsible relatives and may be based upon the proportionate ability of each to contribute to the person's support.

Before entering an order under this Section, the court must determine whether the Department of Healthcare and Family Services' administrative enforcement unit has entered an administrative order for support under Section 10-7 or 10-11 requiring the responsible relative to contribute to the support of the person or persons requiring support. If the court determines that the administrative enforcement unit has entered such an order, the court must ensure that its order entered under this Section does not require the responsible relative to make any payment of support that duplicates a payment ordered by the administrative enforcement unit.

The Court shall determine the amount of child support (including child support for a period before the date the order for child support is entered) by using the guidelines and standards set forth in subsection (a) of Section 505 and in Section 505.2 of the Illinois Marriage and Dissolution of Marriage Act. For purposes of determining the amount of child support to be paid for a period before the date the order for child support is entered, there is a rebuttable presumption that the responsible relative's net income for that period was the same as his or her net income at the time the order is entered.

If (i) the responsible relative was properly served with a request for discovery of financial information relating to the responsible relative's ability to provide child support, (ii) the responsible relative failed to comply with the request, despite having been ordered to do so by the court, and (iii) the responsible relative is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the responsible relative'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.

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 minor child, or both, would be seriously endangered by disclosure of the party's address.

The Court shall determine the amount of maintenance using the standards set forth in Section 504 of the Illinois Marriage and Dissolution of Marriage Act.

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. Any such judgment is subject to modification or termination only in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act. 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.

When an order is entered for the support of a minor, the court may provide therein for reasonable visitation of the minor by the person or persons who provided support pursuant to the order. Whoever willfully refuses to comply with such visitation order or willfully interferes with its enforcement may be declared in contempt of court and punished therefor.

Except where the local governmental unit has entered into an agreement with the Illinois Department for the Child and Spouse Support Unit to act for it, as provided in Section 10-3.1, support orders entered by the court in cases involving applicants or recipients under Article VI shall provide that payments thereunder be made directly to the local governmental unit. Orders for the support of all other applicants or recipients shall provide that payments thereunder be made directly to the Illinois Department. In accordance with federal law and regulations, the Illinois Department may continue to collect current maintenance payments or child support payments, or both, after those persons cease to receive public assistance and until termination of services under Article X. The Illinois Department shall pay the net amount collected to those persons after deducting any costs incurred in making the collection or any collection fee from the amount of any recovery made. In both cases the order shall permit the local governmental unit or the Illinois Department, as the case may be, to direct the responsible relative or relatives to make support payments directly to the needy person, or to some person or agency in his behalf, upon removal of the person from the public aid rolls or upon termination of services under Article X.

If the notice of support due issued pursuant to Section 10-7 directs that support payments be made directly to the needy person, or to some person or agency in his behalf, and the recipient is removed from the public aid rolls, court action may be taken against the responsible relative hereunder if he fails to furnish support in accordance with the terms of such notice.

Actions may also be brought under this Section in behalf of any person who is in need of support from responsible relatives, as defined in Section 2-11 of Article II who is not an applicant for or recipient of financial aid under this Code. In such instances, the State's Attorney of the county in which such person resides shall bring action against the responsible relatives hereunder. If the Illinois Department, as authorized by Section 10-1, extends the child support enforcement services provided by this Article to spouses and dependent children who are not applicants or recipients under this Code, the Child and Spouse Support Unit established by Section 10-3.1 shall bring action against the responsible relatives hereunder and any support orders entered by the court in such cases shall provide that payments thereunder be made directly to the Illinois Department.

Whenever it is determined in a proceeding to establish or enforce a child support or maintenance obligation that the person owing a duty of support is unemployed, the court may order the person to seek employment and report periodically to the court with a diary, listing or other memorandum of his or her efforts in accordance with such order. Additionally, the court may order the unemployed person to report to the Department of Employment Security for job search services or to make application with the local Job Training Partnership Act provider for participation in job search, training or work programs and where the duty of support is owed to a child receiving child support enforcement services under this Article X, the court may order the unemployed person to report to the Illinois Department for participation in job search, training or work programs established under Section 9-6 and Article IXA of this Code.

Whenever it is determined that a person owes past-due support for a child receiving assistance under this Code, the court shall order at the request of the Illinois Department:

(1) that the person pay the past-due support in accordance with a plan approved by the court; or

(2) if the person owing past-due support is unemployed, is subject to such a plan, and is not incapacitated, that the person participate in such job search, training, or work programs established under Section 9-6 and Article IXA of this Code as the court deems appropriate.

A determination under this Section shall not be administratively reviewable by the procedures specified in Sections 10-12, and 10-13 to 10-13.10. Any determination under these Sections, if made the basis of court action under this Section, shall not affect the de novo judicial determination required under this Section.

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 this Code and shall be enforced by the court upon petition.

All orders for support, when entered or modified, shall include a provision requiring the non-custodial parent to notify the court and, in cases in which a party is receiving child support enforcement services under this Article X, the Illinois Department, within 7 days, (i) of the name, address, and telephone number of any new employer of the non-custodial parent, (ii) whether the non-custodial parent 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 Code, which service shall be sufficient for purposes of due process.

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 paragraph shall be construed to prevent the court from modifying the order or terminating the order in the event the child is otherwise emancipated.

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, then 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 the 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 paragraph. 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 paragraph with regard to the order. This paragraph shall not be construed to prevent or affect the establishment or modification of an order for the support of a minor child or the establishment or modification of an order for the support of a non-minor child or educational expenses under Section 513 of the Illinois Marriage and Dissolution of Marriage Act.

Payments under this Section to the Illinois Department pursuant to the Child Support Enforcement Program established by Title IV-D of the Social Security Act shall be paid into the Child Support Enforcement Trust Fund. All payments under this Section to the Illinois Department of Human Services shall be deposited in the DHS Recoveries Trust Fund. Disbursements from these funds shall be as provided in Sections 12-9.1 and 12-10.2 of this Code. Payments received by a local governmental unit shall be deposited in that unit's General Assistance Fund.

To the extent the provisions of this Section are inconsistent with the requirements pertaining to the State Disbursement Unit under Sections 10-10.4 and 10-26 of this Code, the requirements pertaining to the State Disbursement Unit shall apply.

(Source: P.A. 93-1061, eff. 1-1-05; 94-88, eff. 1-1-06; revised 8-9-05.)

(305 ILCS 5/10-11) (from Ch. 23, par. 10-11)

Sec. 10-11. Administrative Orders. In lieu of actions for court enforcement of support under Section 10-10, the Child and Spouse Support Unit of the Illinois Department, in accordance with the rules of the Illinois Department, may issue an administrative order requiring the responsible relative to comply with the terms of the determination and notice of support due, determined and issued under Sections 10-6 and 10-7. The Unit may also enter an administrative order under subsection (b) of Section 10-7. The administrative order shall be served upon the responsible relative by United States registered or certified mail. In cases in which the responsible relative appeared at the office of the Child and Spouse Support Unit in response to the notice of support obligation issued under Section 10-4, however, or in cases of default in which the notice was served on the responsible relative by certified mail, return receipt requested, or by any method provided by law for service of summons, the administrative determination of paternity or administrative support order may be sent to the responsible relative by ordinary mail addressed to the responsible relative's last known address.

Before entering an administrative order for support under this Section, the Child and Spouse Support Unit must determine whether a court has entered an order requiring the responsible relative to contribute to the support of the person or persons requiring support. If the Child and Spouse Support Unit determines that a court has entered such an order, the Unit must ensure that its order entered under this Section does not require the responsible relative to make any payment of support that duplicates a payment ordered by the court.

If a responsible relative or a person receiving child support enforcement services under this Article fails to petition the Illinois Department for release from or modification of the administrative order, as provided in Section 10-12 or Section 10-12.1, the order shall become final and there shall be no further administrative or judicial remedy. Likewise a decision by the Illinois Department as a result of an administrative hearing, as provided in Sections 10-13 to 10-13.10, shall become final and enforceable if not judicially reviewed under the Administrative Review Law, as provided in Section 10-14.

Any new or existing support order entered by the Illinois Department 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. Any such judgment is subject to modification or termination only in accordance with Section 510 of the Illinois Marriage and Dissolution of Marriage Act. 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.

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 majority or is otherwise emancipated. 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 paragraph shall be construed to prevent modification of the order by the Department.

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, then 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 the 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 paragraph. 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 paragraph with regard to the order. This paragraph shall not be construed to prevent or affect the establishment or modification of an order for the support of a minor child or the establishment or modification of an order for the support of a non-minor child or educational expenses under Section 513 of the Illinois Marriage and Dissolution of Marriage Act.

An order for support shall include a date on which the 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 that the child's 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 paragraph shall be construed to prevent the Illinois Department from modifying the order or terminating the order in the event the child is otherwise emancipated.

(Source: P.A. 92-590, eff. 7-1-02; 92-876, eff. 6-1-03; 93-1061, eff. 1-1-05.)

Section 99. Effective date. This Act takes effect upon becoming law.