Full Text of HB5221 97th General Assembly
HB5221eng 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Income Withholding for Support Act is | 5 | | amended by changing Sections 20, 35, and 45 as follows:
| 6 | | (750 ILCS 28/20)
| 7 | | Sec. 20. Entry of order for support containing income | 8 | | withholding
provisions; income withholding notice. | 9 | | (a) In addition to any content required under other laws, | 10 | | every order for
support entered on or after July 1, 1997, | 11 | | shall:
| 12 | | (1) Require an income withholding notice to be prepared | 13 | | and served
immediately upon any payor of the obligor by the | 14 | | obligee or public office,
unless a written agreement is | 15 | | reached between and signed by both parties
providing for an | 16 | | alternative arrangement, approved and entered into the | 17 | | record
by the court, which ensures payment of support. In | 18 | | that case, the order for
support shall provide that an | 19 | | income withholding notice is to be prepared and
served only | 20 | | if the obligor becomes delinquent in paying the order for | 21 | | support;
and
| 22 | | (2) Contain a dollar amount to be paid until payment in | 23 | | full of any
delinquency that accrues after entry of the |
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| 1 | | order for support. The amount for
payment of delinquency | 2 | | shall not be less than 20% of the total of the current
| 3 | | support amount and the amount to be paid periodically for | 4 | | payment of any
arrearage stated in the order for support; | 5 | | and
| 6 | | (3) Include the obligor's Social Security Number, | 7 | | which the obligor shall
disclose to the court. If the | 8 | | obligor is not a United States citizen, the
obligor shall | 9 | | disclose to the court, and the court shall include in the | 10 | | order
for support, the obligor's alien registration | 11 | | number, passport number, and home
country's social | 12 | | security or national health number, if
applicable.
| 13 | | (b) At the time the order for support is entered, the Clerk | 14 | | of the Circuit
Court shall provide a copy of the order to the | 15 | | obligor and shall make copies
available to the obligee and | 16 | | public office.
| 17 | | (c) The income withholding notice shall:
| 18 | | (1) be in the standard format prescribed by the federal | 19 | | Department of
Health and Human Services; and
| 20 | | (1.1) state the date of entry of the order for support | 21 | | upon which the
income withholding notice is based; and
| 22 | | (2) direct any payor to withhold the dollar amount | 23 | | required for current
support under the order for support; | 24 | | and
| 25 | | (3) direct any payor to withhold the dollar amount | 26 | | required to be paid
periodically under the order for |
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| 1 | | support for payment of the amount of any
arrearage stated | 2 | | in the order for support; and
| 3 | | (4) direct any payor or labor union or trade union to | 4 | | enroll a child as a
beneficiary of a health insurance plan | 5 | | and withhold or cause to be withheld, if
applicable, any | 6 | | required premiums; and
| 7 | | (5) state the amount of the payor income withholding | 8 | | fee specified under
this Section; and
| 9 | | (6) state that the amount actually withheld from the | 10 | | obligor's income for
support and other purposes, including | 11 | | the payor withholding fee specified under
this Section, may | 12 | | not be in excess of the maximum amount permitted under the
| 13 | | federal Consumer Credit Protection Act; and
| 14 | | (7) in bold face type, the size of which
equals the | 15 | | largest type on the notice, state the duties of the payor | 16 | | and the fines and penalties for failure
to withhold and pay | 17 | | over income and for discharging, disciplining, refusing to
| 18 | | hire, or otherwise penalizing the obligor because of the | 19 | | duty to withhold and
pay over income under this Section; | 20 | | and
| 21 | | (8) state the rights, remedies, and duties of the | 22 | | obligor under this
Section; and
| 23 | | (9) include the Social Security number of the obligor; | 24 | | and
| 25 | | (10) include the date that withholding for current | 26 | | support terminates,
which shall be the date of termination |
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| 1 | | of the current support obligation set
forth in the order | 2 | | for support; and
| 3 | | (11) contain the signature of the obligee or
the | 4 | | printed name and telephone number of the authorized
| 5 | | representative of the public office, except that the | 6 | | failure to contain the
signature of the obligee or the | 7 | | printed name and telephone number of
the authorized | 8 | | representative of the public office shall not
affect the | 9 | | validity of the income withholding
notice; and
| 10 | | (12) direct any payor to pay over amounts withheld for | 11 | | payment of support
to the State Disbursement Unit.
| 12 | | (d) The accrual of a delinquency as a condition for service | 13 | | of an income
withholding notice, under the exception to | 14 | | immediate withholding in subsection
(a) of this Section, shall | 15 | | apply only to the initial service of an income
withholding | 16 | | notice on a payor of the obligor.
| 17 | | (e) Notwithstanding the exception to immediate withholding | 18 | | contained in
subsection (a) of this Section, if the court finds | 19 | | at the time of any hearing
that an arrearage has accrued, the | 20 | | court shall order immediate service of an
income withholding | 21 | | notice upon the payor.
| 22 | | (f) If the order for support, under the exception to | 23 | | immediate withholding
contained in subsection (a) of this | 24 | | Section, provides that an income
withholding notice is to be | 25 | | prepared and served only if the obligor becomes
delinquent in | 26 | | paying the order for support, the obligor may execute a written
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| 1 | | waiver of that condition and request immediate service on the | 2 | | payor.
| 3 | | (g) The obligee or public office may serve the income | 4 | | withholding notice on
the payor or its superintendent, manager, | 5 | | or other agent by ordinary mail or
certified mail return | 6 | | receipt requested, by facsimile transmission or other
| 7 | | electronic means, by personal delivery, or by any method | 8 | | provided by law for
service of a summons. At the time of | 9 | | service on the payor and as notice that
withholding has | 10 | | commenced, the obligee or public office shall serve a copy of
| 11 | | the income withholding notice on the obligor by ordinary mail | 12 | | addressed to his
or her last known address. A copy of an income | 13 | | withholding notice and proof of service shall be filed with the | 14 | | Clerk of the Circuit Court only when necessary in connection | 15 | | with a petition to contest, modify, suspend, terminate, or | 16 | | correct an income withholding notice, an action to enforce | 17 | | income withholding against a payor, or the resolution of other | 18 | | disputes involving an income withholding notice. The changes | 19 | | made to this subsection by this amendatory Act of the 96th | 20 | | General Assembly apply on and after September 1, 2009.
| 21 | | (h) At any time after the initial service of an income | 22 | | withholding notice,
any other payor of the obligor may be | 23 | | served with the same income
withholding notice without further | 24 | | notice to the obligor.
A copy of the income withholding notice | 25 | | together with a proof of service on
the other payor shall be | 26 | | filed with the Clerk of the Circuit Court.
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| 1 | | (i) New service of an income withholding notice is not | 2 | | required in order to
resume withholding of income in the case | 3 | | of an obligor with respect to whom an
income withholding notice | 4 | | was previously served on the payor if withholding of
income was | 5 | | terminated because of an interruption in the obligor's | 6 | | employment of
less than 180 days.
| 7 | | (Source: P.A. 96-858, eff. 1-8-10.)
| 8 | | (750 ILCS 28/35)
| 9 | | Sec. 35. Duties of payor.
| 10 | | (a) It shall be the duty of any payor who has
been served | 11 | | with an income withholding notice to deduct and pay over income | 12 | | as
provided
in
this Section. The payor shall deduct the amount | 13 | | designated in the
income withholding notice, as supplemented by | 14 | | any
notice provided pursuant to subsection (f) of Section 45,
| 15 | | beginning
no later than the next payment of income which is | 16 | | payable or creditable to
the obligor
that occurs 14 days | 17 | | following the date the income withholding notice was
mailed, | 18 | | sent by facsimile or other electronic
means, or placed for | 19 | | personal delivery to or service on the
payor. The payor may | 20 | | combine
all amounts withheld for the benefit of an obligee or | 21 | | public office into a
single payment and transmit the payment | 22 | | with a listing of obligors from
whom withholding has been | 23 | | effected. The payor shall pay the amount withheld
to the State | 24 | | Disbursement Unit within
7 business days after the date the
| 25 | | amount would (but for the duty to withhold income) have been |
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| 1 | | paid or credited
to the obligor. If the payor knowingly fails | 2 | | to withhold the amount designated
in the income
withholding | 3 | | notice or to pay any amount withheld to the
State
Disbursement | 4 | | Unit within
7 business days after the date the amount would | 5 | | have been paid or credited to
the
obligor, then the payor shall | 6 | | pay a penalty of $100 for each day that the
amount designated | 7 | | in the income withholding notice (whether or
not withheld by | 8 | | the payor) is not paid to the State Disbursement Unit after
the | 9 | | period of
7 business days has expired. The total penalty for a | 10 | | payor's failure, on one occasion, to withhold or pay to the | 11 | | State Disbursement Unit an amount designated in the
income | 12 | | withholding notice may not exceed $10,000. The failure of a | 13 | | payor, on
more than one
occasion, to pay amounts withheld to | 14 | | the State Disbursement Unit within
7 business days after the | 15 | | date the amount would have been paid or credited to
the
obligor | 16 | | creates a
presumption that the payor knowingly failed to pay | 17 | | over the amounts. This
penalty may be collected in a civil | 18 | | action which may be brought against the
payor in favor of the | 19 | | obligee or public office. An action to collect the penalty may | 20 | | not be brought more than one year after the date of the payor's | 21 | | alleged failure to withhold or pay income.
A finding of a | 22 | | payor's nonperformance within the time required under
this Act | 23 | | must be documented by a certified mail return receipt
or a | 24 | | sheriff's or private process server's proof of service showing | 25 | | the date
the income withholding notice was served on the payor.
| 26 | | For purposes of this Act,
a withheld
amount shall be considered |
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| 1 | | paid by a payor on the date it is mailed by the
payor, or on the | 2 | | date an electronic funds transfer of the amount has been
| 3 | | initiated by the payor, or on the date delivery of the amount | 4 | | has been
initiated by the payor. For each deduction, the payor | 5 | | shall provide the
State Disbursement Unit, at the time of
| 6 | | transmittal, with the date
the amount would (but for the duty | 7 | | to withhold income) have been paid or
credited to the obligor.
| 8 | | After June 30, 2000, every payor that has 250 or more | 9 | | employees shall use
electronic funds transfer to pay all | 10 | | amounts withheld under this Section.
During the year
2001 and | 11 | | during each year thereafter, every payor that has fewer than | 12 | | 250
employees
and that
withheld income under this Section | 13 | | pursuant to 10 or more income withholding
notices
during | 14 | | December of the preceding year shall use electronic funds | 15 | | transfer to
pay all
amounts withheld under this Section.
| 16 | | Upon receipt of an income withholding notice requiring that | 17 | | a
minor child be named as a
beneficiary of a health insurance | 18 | | plan available through an employer or labor
union or trade | 19 | | union, the employer or labor union or trade union shall
| 20 | | immediately enroll the minor child as a beneficiary in the | 21 | | health insurance
plan designated by the income withholding | 22 | | notice. The
employer shall withhold any required
premiums and | 23 | | pay over any amounts so withheld and any additional amounts the
| 24 | | employer pays to the insurance carrier in a timely manner. The | 25 | | employer or
labor union or trade union shall mail to the | 26 | | obligee, within 15 days of
enrollment or upon request, notice |
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| 1 | | of the date of coverage, information on the
dependent coverage | 2 | | plan, and all forms necessary to obtain reimbursement for
| 3 | | covered health expenses, such as would be made available to a | 4 | | new employee.
When an order for dependent coverage is in effect | 5 | | and the insurance coverage is
terminated or changed for any | 6 | | reason, the employer or labor union or trade
union shall notify | 7 | | the obligee within 10 days of the termination or change date
| 8 | | along with notice of conversion privileges.
| 9 | | For withholding of income, the payor shall be entitled to | 10 | | receive a fee
not to exceed $5 per month to be taken
from
the | 11 | | income to be paid to the
obligor.
| 12 | | (b) Whenever the obligor is no longer receiving income from | 13 | | the payor,
the payor shall return a copy of the income | 14 | | withholding
notice to the obligee
or public office and shall | 15 | | provide information for the purpose of enforcing
this Act.
| 16 | | (c) Withholding of income under this Act shall be made | 17 | | without
regard
to any prior or subsequent garnishments, | 18 | | attachments, wage assignments,
or any other claims of | 19 | | creditors. Withholding of income
under this Act shall not be in | 20 | | excess of the maximum amounts
permitted under the federal | 21 | | Consumer Credit Protection Act.
Income available for | 22 | | withholding shall be applied first to the current
support | 23 | | obligation, then to any premium required for employer, labor | 24 | | union, or
trade union-related health insurance coverage | 25 | | ordered under the order for
support, and then to payments | 26 | | required on past-due support obligations. If
there is |
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| 1 | | insufficient available income remaining to pay the full amount | 2 | | of the
required health insurance premium after withholding of | 3 | | income for the current
support obligation, then the remaining | 4 | | available income shall be applied to
payments required on | 5 | | past-due support obligations.
If the payor has been served with | 6 | | more than one income
withholding notice
pertaining to the same | 7 | | obligor, the payor shall allocate income available
for | 8 | | withholding on a proportionate share basis, giving priority to | 9 | | current
support payments.
A payor who complies with an income | 10 | | withholding notice that is
regular on its
face shall not be | 11 | | subject to civil liability with respect to any individual,
any | 12 | | agency, or any creditor of the obligor for conduct in | 13 | | compliance with the
notice.
| 14 | | (d) No payor shall discharge, discipline, refuse to hire or | 15 | | otherwise
penalize any obligor because of the duty to withhold | 16 | | income.
| 17 | | (Source: P.A. 96-53, eff. 1-1-10 .)
| 18 | | (750 ILCS 28/45)
| 19 | | Sec. 45. Additional duties.
| 20 | | (a) An obligee who is receiving income withholding
payments | 21 | | under this Act shall notify the State Disbursement Unit and the | 22 | | Clerk
of the Circuit Court of any change of address within 7
| 23 | | days of such change.
| 24 | | (b) An obligee who is a recipient of public aid shall send | 25 | | a copy of
any income withholding notice served by the obligee |
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| 1 | | to the Division
of Child Support Enforcement of the
Department | 2 | | of Healthcare and Family Services.
| 3 | | (c) Each obligor shall notify the obligee, the public | 4 | | office, and the
Clerk of the Circuit
Court of any change of | 5 | | address within 7 days.
| 6 | | (d) An obligor whose income is being withheld pursuant to | 7 | | this Act shall notify
the
obligee, the public office,
and the | 8 | | Clerk of the Circuit Court of any new payor, within 7 days.
| 9 | | (e) (Blank.)
| 10 | | (f) The obligee or public office shall provide notice to | 11 | | the payor and
Clerk of the Circuit Court of any other support | 12 | | payment made, including
but not limited to, a set-off under | 13 | | federal and State law or partial payment
of the delinquency or | 14 | | arrearage, or both.
| 15 | | (g) The State Disbursement Unit shall
maintain complete, | 16 | | accurate, and clear records of all income withholding
payments | 17 | | and their
disbursements. Certified copies of payment records | 18 | | maintained by the State
Disbursement Unit, a public
office, or | 19 | | the Clerk of the Circuit Court shall, without further proof, be
| 20 | | admitted into evidence in any legal proceedings under this Act.
| 21 | | (h) The Department of Healthcare and Family Services shall | 22 | | design suggested legal
forms for proceeding under this Act and | 23 | | shall make available to
the
courts such forms and informational | 24 | | materials which describe the procedures
and remedies set forth | 25 | | herein for distribution to all parties in support
actions.
| 26 | | (i) At the time of transmitting each support payment, the |
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| 1 | | State
Disbursement Unit shall provide the obligee or public | 2 | | office, as appropriate,
with any information furnished by the | 3 | | payor as to the date
the amount would (but for the duty to | 4 | | withhold income) have been paid or
credited to the obligor.
| 5 | | (j) If an obligee who is receiving income withholding
| 6 | | payments under this Act does not receive a payment required | 7 | | under the income withholding notice, he or she must give | 8 | | written notice of the non-receipt to the payor. The notice must | 9 | | include the date on which the obligee believes the payment was | 10 | | to have been made and the amount of the payment. The obligee | 11 | | must send the notice to the payor by certified mail, return | 12 | | receipt requested. | 13 | | After receiving a written notice of non-receipt of payment | 14 | | under this subsection, a payor must, within 14 days thereafter, | 15 | | either (i) notify the obligee of the reason for the non-receipt | 16 | | of payment or (ii) make the required payment, together with | 17 | | interest at the rate of 9% calculated from the date on which | 18 | | the payment of income should have been made. A payor who fails | 19 | | to comply with this subsection is subject to the $100 per day | 20 | | penalty provided under subsection (a) of Section 35 of this | 21 | | Act. | 22 | | (Source: P.A. 95-331, eff. 8-21-07.)
| 23 | | Section 99. Effective date. This Act takes effect upon | 24 | | becoming law.
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