Full Text of SB1261 100th General Assembly
SB1261sam001 100TH GENERAL ASSEMBLY | Sen. Linda Holmes Filed: 3/1/2017
| | 10000SB1261sam001 | | LRB100 10927 HEP 21930 a |
|
| 1 | | AMENDMENT TO SENATE BILL 1261
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 1261 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Illinois Marriage and Dissolution of | 5 | | Marriage Act is amended by changing Sections 452, 501, 502, and | 6 | | 503 as follows:
| 7 | | (750 ILCS 5/452)
| 8 | | Sec. 452. Petition. The parties to a dissolution proceeding | 9 | | may file a
joint petition for simplified dissolution if they | 10 | | certify that all of the
following conditions exist when the | 11 | | proceeding is commenced:
| 12 | | (a) Neither party is dependent on the other party for | 13 | | support or each
party is willing to waive the right to | 14 | | support; and the parties understand
that consultation with | 15 | | attorneys may help them determine eligibility for
spousal | 16 | | support.
|
| | | 10000SB1261sam001 | - 2 - | LRB100 10927 HEP 21930 a |
|
| 1 | | (b) Either party has met the residency or military | 2 | | presence requirement of Section 401 of this
Act.
| 3 | | (c) The requirements of Section 401 regarding proof of | 4 | | irreconcilable differences have been met.
| 5 | | (d) No children were born of the relationship of the | 6 | | parties or
adopted by the parties during the marriage, and | 7 | | the wife, to her knowledge,
is not pregnant by the husband.
| 8 | | (e) The duration of the marriage does not exceed 8 | 9 | | years.
| 10 | | (f) Neither party has any interest in real property or | 11 | | retirement benefits unless the retirement benefits are | 12 | | exclusively held in individual retirement accounts and the | 13 | | combined value of the accounts is less than $10,000.
| 14 | | (g) The parties waive any rights to maintenance.
| 15 | | (h) The total fair market value of all marital | 16 | | property, after
deducting all encumbrances, is less than | 17 | | $50,000, the
combined gross annualized income from all | 18 | | sources is less than
$60,000, and neither party has a gross | 19 | | annualized income from all sources
in excess of $30,000.
| 20 | | (i) The parties have disclosed to each other all assets | 21 | | and liabilities and their tax
returns for all years of the | 22 | | marriage.
| 23 | | (j) The parties have executed a written agreement | 24 | | dividing all assets
in excess of $100 in value and | 25 | | allocating responsibility for debts and
liabilities | 26 | | between the parties. |
| | | 10000SB1261sam001 | - 3 - | LRB100 10927 HEP 21930 a |
|
| 1 | | (k) The parties have executed a written agreement | 2 | | allocating ownership of and responsibility for any | 3 | | domestic animals owned by the parties.
| 4 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17 .)
| 5 | | (750 ILCS 5/501) (from Ch. 40, par. 501)
| 6 | | Sec. 501. Temporary relief. In all proceedings under this | 7 | | Act,
temporary relief shall be as follows:
| 8 | | (a) Either party may petition or move for:
| 9 | | (1) temporary maintenance or temporary support of a | 10 | | child of the
marriage entitled to support, accompanied by | 11 | | an affidavit as to the
factual basis for the relief | 12 | | requested. One form of financial affidavit, as determined | 13 | | by the Supreme Court, shall be used statewide. The | 14 | | financial affidavit shall be supported by documentary | 15 | | evidence including, but not limited to, income tax returns, | 16 | | pay stubs, and banking statements. Unless the court | 17 | | otherwise directs, any affidavit or supporting documentary | 18 | | evidence submitted pursuant
to this paragraph shall not be | 19 | | made
part of the public record of the proceedings but shall | 20 | | be available to
the court or an appellate court in which | 21 | | the proceedings are subject to
review, to the parties, | 22 | | their
attorneys, and such other persons as the court
may | 23 | | direct. Upon motion of a party, a court may hold a hearing | 24 | | to determine whether and why there is a disparity between a | 25 | | party's sworn affidavit and the supporting documentation. |
| | | 10000SB1261sam001 | - 4 - | LRB100 10927 HEP 21930 a |
|
| 1 | | If a party intentionally or recklessly files an inaccurate | 2 | | or misleading financial affidavit, the court shall impose | 3 | | significant penalties and sanctions including, but not | 4 | | limited to, costs and attorney's fees;
| 5 | | (2) a temporary restraining order or preliminary | 6 | | injunction, accompanied
by affidavit showing a
factual | 7 | | basis for any of the following relief:
| 8 | | (i) restraining any person from transferring, | 9 | | encumbering,
concealing or otherwise disposing of any | 10 | | property except in the usual
course of business or for | 11 | | the necessities of life, and, if so
restrained, | 12 | | requiring him to notify the moving party and his | 13 | | attorney of
any proposed extraordinary expenditures | 14 | | made after the order is issued; however, an order need | 15 | | not include an exception for transferring, | 16 | | encumbering,
or otherwise disposing of property in the | 17 | | usual course of business or for the necessities of life | 18 | | if the court enters appropriate orders that enable the | 19 | | parties to pay their necessary
personal and business | 20 | | expenses including, but not limited to, appropriate | 21 | | professionals to assist the court pursuant to | 22 | | subsection (l) of Section 503 to administer the payment | 23 | | and accounting of such living and business expenses;
| 24 | | (ii) enjoining a party from removing a child from | 25 | | the jurisdiction
of the court for more than 14 days;
| 26 | | (iii) enjoining a party from striking or |
| | | 10000SB1261sam001 | - 5 - | LRB100 10927 HEP 21930 a |
|
| 1 | | interfering with the
personal liberty of the other | 2 | | party or of any child; or
| 3 | | (iv) providing other injunctive relief proper in | 4 | | the circumstances;
or
| 5 | | (3) other appropriate temporary relief including, in | 6 | | the discretion of the court, ordering the purchase or sale | 7 | | of assets and requiring that a party or parties borrow | 8 | | funds in the appropriate circumstances.
| 9 | | Issues concerning temporary maintenance or temporary | 10 | | support of a child entitled to support shall be dealt with on a | 11 | | summary basis based on allocated parenting time, financial | 12 | | affidavits, tax returns, pay stubs, banking statements, and | 13 | | other
relevant documentation, except an evidentiary hearing | 14 | | may be held upon a showing of good cause. If a party | 15 | | intentionally or recklessly files an inaccurate or misleading | 16 | | financial affidavit, the court shall impose significant | 17 | | penalties and sanctions including, but not limited to, costs | 18 | | and attorney's fees resulting from the improper | 19 | | representation. | 20 | | (b) The court may issue a temporary restraining order | 21 | | without
requiring notice to the other party only if it finds, | 22 | | on the basis of
the moving affidavit or other evidence, that | 23 | | irreparable injury will
result to the moving party if no order | 24 | | is issued until the time for
responding has elapsed.
| 25 | | (c) A response hereunder may be filed within 21 days after | 26 | | service
of notice of motion or at the time specified in the |
| | | 10000SB1261sam001 | - 6 - | LRB100 10927 HEP 21930 a |
|
| 1 | | temporary
restraining order.
| 2 | | (c-1) As used in this subsection (c-1), "interim attorney's | 3 | | fees and
costs" means attorney's fees and costs
assessed
from | 4 | | time to time while a case is pending, in favor of the | 5 | | petitioning party's
current counsel, for reasonable fees and | 6 | | costs either already incurred or to be
incurred, and "interim | 7 | | award" means an award of interim attorney's fees and
costs. | 8 | | Interim awards shall be governed by the following:
| 9 | | (1) Except for good cause shown, a proceeding for (or | 10 | | relating to) interim
attorney's fees and costs in a | 11 | | pre-judgment dissolution proceeding shall be | 12 | | nonevidentiary and summary in nature. All hearings for or | 13 | | relating to interim attorney's fees and costs under this | 14 | | subsection shall be scheduled expeditiously by the court. | 15 | | When a party files a petition for interim attorney's fees | 16 | | and
costs supported by one or more
affidavits that | 17 | | delineate relevant factors, the court (or a hearing | 18 | | officer)
shall assess an interim award after affording the | 19 | | opposing party a reasonable
opportunity to file a | 20 | | responsive pleading. A responsive pleading shall set out
| 21 | | the amount of each retainer or other payment or payments, | 22 | | or both, previously
paid to the responding party's counsel | 23 | | by or on behalf of the responding party. A responsive | 24 | | pleading shall include costs incurred, and shall indicate | 25 | | whether the costs are paid or unpaid.
In assessing an
| 26 | | interim award, the court shall consider all relevant |
| | | 10000SB1261sam001 | - 7 - | LRB100 10927 HEP 21930 a |
|
| 1 | | factors, as presented,
that appear reasonable and | 2 | | necessary, including to the extent applicable:
| 3 | | (A) the income and property of each party, | 4 | | including alleged marital
property within the sole | 5 | | control of one party and alleged non-marital property
| 6 | | within access to a party;
| 7 | | (B) the needs of each party;
| 8 | | (C) the realistic earning capacity of each party;
| 9 | | (D) any impairment to present earning capacity of | 10 | | either party,
including
age and physical and emotional | 11 | | health;
| 12 | | (E) the standard of living established during the | 13 | | marriage;
| 14 | | (F) the degree of complexity of the issues, | 15 | | including allocation of parental responsibility, | 16 | | valuation
or division (or both) of closely held | 17 | | businesses, and tax planning, as well as
reasonable | 18 | | needs for expert investigations or expert witnesses, | 19 | | or both;
| 20 | | (G) each party's access to relevant information;
| 21 | | (H) the amount of the payment or payments made or | 22 | | reasonably expected to
be made to the attorney for the | 23 | | other party; and
| 24 | | (I) any other factor that the court expressly finds | 25 | | to be just and
equitable.
| 26 | | (2) Any assessment of an interim award (including one |
| | | 10000SB1261sam001 | - 8 - | LRB100 10927 HEP 21930 a |
|
| 1 | | pursuant to an
agreed
order) shall be without prejudice to | 2 | | any final allocation and without prejudice
as to any claim | 3 | | or right of either party or any counsel of record at the | 4 | | time
of the award. Any such claim or right may be presented | 5 | | by the appropriate
party or counsel at a hearing on | 6 | | contribution under subsection (j) of Section
503 or a | 7 | | hearing on counsel's fees under subsection (c) of Section | 8 | | 508. Unless
otherwise ordered by the court at the final | 9 | | hearing between the parties or in a
hearing under | 10 | | subsection (j) of Section 503 or subsection (c) of
Section | 11 | | 508, interim awards, as well as the aggregate of all other | 12 | | payments
by each party
to
counsel and related payments to | 13 | | third parties, shall be deemed to have been
advances from | 14 | | the parties' marital estate. Any portion of any interim | 15 | | award
constituting an overpayment shall be remitted back to | 16 | | the appropriate party or
parties, or, alternatively, to | 17 | | successor counsel, as the court determines and
directs, | 18 | | after notice in a form designated by the Supreme Court. An | 19 | | order for the award of interim attorney's fees shall be a | 20 | | standardized form order and labeled "Interim Fee Award | 21 | | Order".
| 22 | | (3) In any proceeding under this subsection (c-1), the | 23 | | court (or hearing
officer) shall assess an interim award | 24 | | against an opposing party in an
amount necessary to enable | 25 | | the petitioning party to participate adequately in
the | 26 | | litigation, upon findings that the party from whom |
| | | 10000SB1261sam001 | - 9 - | LRB100 10927 HEP 21930 a |
|
| 1 | | attorney's fees and
costs are sought has the financial | 2 | | ability to pay reasonable amounts and that
the party | 3 | | seeking attorney's fees and costs lacks sufficient access | 4 | | to assets
or income to pay reasonable amounts. In | 5 | | determining an award, the
court shall consider whether | 6 | | adequate participation in the litigation requires
| 7 | | expenditure of more fees and costs for a party that is not | 8 | | in control of assets
or relevant information. Except for | 9 | | good cause shown, an interim award shall
not be less than | 10 | | payments made or reasonably expected to be made to the | 11 | | counsel
for the other party. If the court finds that both | 12 | | parties
lack financial ability or access to assets or | 13 | | income for reasonable attorney's
fees and costs, the court | 14 | | (or hearing officer) shall enter an order that
allocates | 15 | | available funds for each party's counsel, including | 16 | | retainers or
interim payments, or both, previously paid, in | 17 | | a manner that achieves
substantial parity between the | 18 | | parties.
| 19 | | (4) The changes to this Section 501 made by this | 20 | | amendatory Act of 1996
apply to cases pending on or after | 21 | | June 1, 1997, except as otherwise provided
in Section 508.
| 22 | | (c-2) Allocation of use of marital residence. Where
there | 23 | | is on file a verified complaint or verified petition seeking
| 24 | | temporary eviction from the marital residence, the court may, | 25 | | during the
pendency of the proceeding, only in cases where the | 26 | | physical or mental well-being of either spouse or
his or her |
| | | 10000SB1261sam001 | - 10 - | LRB100 10927 HEP 21930 a |
|
| 1 | | children is jeopardized by occupancy of the marital residence | 2 | | by both
spouses, and only upon due notice and full hearing, | 3 | | unless waived by the
court on good cause shown, enter orders | 4 | | granting the exclusive possession of the marital residence to | 5 | | either spouse,
by eviction from, or restoration of, the marital | 6 | | residence, until the final
determination of the cause pursuant | 7 | | to the factors listed in Section 602.7 of this Act. No such | 8 | | order shall in any manner affect any
estate in homestead | 9 | | property of either party. In entering orders under this | 10 | | subsection (c-2), the court shall balance hardships to the | 11 | | parties. | 12 | | (d) A temporary order entered under this Section:
| 13 | | (1) does not prejudice the rights of the parties or the | 14 | | child which
are to be adjudicated at subsequent hearings in | 15 | | the proceeding;
| 16 | | (2) may be revoked or modified before final judgment, | 17 | | on a showing
by affidavit and upon hearing; and
| 18 | | (3) terminates when the final judgment is entered or | 19 | | when the
petition for dissolution of marriage or legal | 20 | | separation or declaration
of invalidity of marriage is | 21 | | dismissed.
| 22 | | (e) The fees or costs of mediation shall
be borne by the | 23 | | parties and may be assessed by the court as it deems equitable | 24 | | without prejudice and are subject to reallocation at the | 25 | | conclusion of the case. | 26 | | (f) Domestic animals. Either party may petition or move for |
| | | 10000SB1261sam001 | - 11 - | LRB100 10927 HEP 21930 a |
|
| 1 | | the temporary allocation of sole or joint ownership of and | 2 | | responsibility for a domestic animal owned by the parties. In | 3 | | issuing an order under this subsection, the court shall take | 4 | | into consideration the well-being of the domestic animal. | 5 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17 .)
| 6 | | (750 ILCS 5/502) (from Ch. 40, par. 502)
| 7 | | Sec. 502. Agreement. | 8 | | (a) To promote amicable settlement
of disputes between
| 9 | | parties to a marriage attendant upon the dissolution of their | 10 | | marriage,
the parties may enter
into an agreement containing | 11 | | provisions for
disposition of any
property owned by either of | 12 | | them, maintenance of either of them, support,
parental | 13 | | responsibility allocation
of their children, and support of | 14 | | their children as provided in Sections 513 and 513.5 after
the | 15 | | children attain majority. The parties may also enter into an | 16 | | agreement allocating the sole or joint ownership of or | 17 | | responsibility for a domestic animal. Any agreement pursuant to | 18 | | this Section must be in writing, except for good cause shown | 19 | | with the approval of the court, before proceeding to an oral | 20 | | prove up.
| 21 | | (b) The terms of the agreement, except those providing for | 22 | | the support and parental responsibility allocation of | 23 | | children, are binding upon the court unless it finds, after
| 24 | | considering the economic circumstances of the parties and any | 25 | | other relevant evidence
produced by the parties, on their own |
| | | 10000SB1261sam001 | - 12 - | LRB100 10927 HEP 21930 a |
|
| 1 | | motion or on request of the court,
that the
agreement is | 2 | | unconscionable. The terms of the agreement incorporated into | 3 | | the judgment are binding if there is any conflict between the | 4 | | terms of the agreement and any testimony made at an uncontested | 5 | | prove-up hearing on the grounds or the substance of the | 6 | | agreement.
| 7 | | (c) If the court finds the agreement unconscionable,
it may | 8 | | request the parties to submit a revised agreement
or upon | 9 | | hearing, may make orders
for the disposition of property, | 10 | | maintenance, child support and other matters.
| 11 | | (d) Unless the agreement provides to the contrary, its
| 12 | | terms shall be set forth
in the judgment, and the parties shall | 13 | | be ordered to perform under such
terms, or if the agreement
| 14 | | provides that its terms shall not be set forth in the judgment, | 15 | | the judgment shall
identify the agreement and state that the | 16 | | court has approved its terms.
| 17 | | (e) Terms of the agreement set forth in the judgment are | 18 | | enforceable by
all remedies available for enforcement
of a | 19 | | judgment, including contempt, and are enforceable as contract | 20 | | terms.
| 21 | | (f) Child support, support of children as provided in | 22 | | Sections 513 and 513.5 after
the children attain majority, and | 23 | | parental responsibility allocation of children may be modified | 24 | | upon a showing of a substantial change in circumstances. The | 25 | | parties may provide that maintenance is non-modifiable in | 26 | | amount, duration, or both. If the parties do not provide that |
| | | 10000SB1261sam001 | - 13 - | LRB100 10927 HEP 21930 a |
|
| 1 | | maintenance is non-modifiable in amount, duration, or both, | 2 | | then those terms are modifiable upon a substantial change of | 3 | | circumstances. Property provisions of an agreement are never | 4 | | modifiable. The judgment may expressly preclude or limit | 5 | | modification of other terms set forth in the
judgment if the | 6 | | agreement so provides. Otherwise, terms
of an agreement
set | 7 | | forth in the judgment are automatically modified by | 8 | | modification of the judgment.
| 9 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17 .)
| 10 | | (750 ILCS 5/503) (from Ch. 40, par. 503)
| 11 | | Sec. 503. Disposition of property and debts.
| 12 | | (a) For purposes of this Act, "marital property" means all | 13 | | property, including debts and other obligations, acquired
by | 14 | | either spouse subsequent to the marriage, except the following, | 15 | | which is
known as "non-marital property":
| 16 | | (1) property acquired by gift, legacy or descent or | 17 | | property acquired in exchange for such property;
| 18 | | (2) property acquired in exchange for property | 19 | | acquired before the
marriage;
| 20 | | (3) property acquired by a spouse after a judgment of | 21 | | legal separation;
| 22 | | (4) property excluded by valid agreement of the | 23 | | parties, including
a premarital agreement or a postnuptial | 24 | | agreement;
| 25 | | (5) any judgment or property obtained by judgment |
| | | 10000SB1261sam001 | - 14 - | LRB100 10927 HEP 21930 a |
|
| 1 | | awarded to a spouse
from the other spouse except, however, | 2 | | when a spouse is required to sue the other spouse in order | 3 | | to obtain insurance coverage or otherwise recover from a | 4 | | third party and the recovery is directly related to amounts | 5 | | advanced by the marital estate, the judgment shall be | 6 | | considered marital property;
| 7 | | (6) property acquired before the marriage, except as it | 8 | | relates to retirement plans that may have both marital and | 9 | | non-marital characteristics;
| 10 | | (6.5) all property acquired by a spouse by
the sole use | 11 | | of non-marital property as collateral for a loan that then | 12 | | is used to acquire property
during the marriage; to the | 13 | | extent that the marital estate repays any portion of the | 14 | | loan, it shall be considered a contribution from the | 15 | | marital estate to the non-marital estate subject to | 16 | | reimbursement; | 17 | | (7) the increase in value of non-marital property, | 18 | | irrespective of whether the
increase results from a | 19 | | contribution of marital property, non-marital property,
| 20 | | the personal effort of a spouse, or otherwise, subject to | 21 | | the right of
reimbursement provided in subsection (c) of | 22 | | this Section; and
| 23 | | (8) income from property acquired by a method listed in | 24 | | paragraphs (1)
through (7) of this subsection if the income | 25 | | is not attributable to the
personal effort of a spouse.
| 26 | | Property acquired prior to a marriage that would otherwise |
| | | 10000SB1261sam001 | - 15 - | LRB100 10927 HEP 21930 a |
|
| 1 | | be non-marital property shall not be deemed to be marital | 2 | | property solely because the property was acquired in | 3 | | contemplation of marriage. | 4 | | The court shall make specific factual findings as to its | 5 | | classification of assets as marital or non-marital property, | 6 | | values, and other factual findings supporting its property | 7 | | award. | 8 | | (b)(1) For purposes of distribution of property, all | 9 | | property acquired by either spouse after the marriage and | 10 | | before a
judgment of dissolution of marriage or declaration of | 11 | | invalidity of marriage is presumed marital property. This | 12 | | presumption includes non-marital property transferred into | 13 | | some form of co-ownership
between the spouses, regardless of | 14 | | whether
title is held individually or by the spouses in some | 15 | | form of co-ownership such
as joint tenancy, tenancy in common, | 16 | | tenancy by the entirety, or community
property. The presumption | 17 | | of marital property is overcome by showing through clear and | 18 | | convincing evidence that
the property was acquired by a method | 19 | | listed in subsection (a) of this Section or was done for estate | 20 | | or tax planning purposes or for other reasons that establish | 21 | | that a transfer between spouses was not intended to be a gift.
| 22 | | (2) For purposes of distribution of property pursuant to | 23 | | this Section,
all pension benefits (including pension benefits | 24 | | under the Illinois Pension
Code, defined benefit plans, defined | 25 | | contribution plans and accounts, individual retirement | 26 | | accounts, and non-qualified plans) acquired by or participated |
| | | 10000SB1261sam001 | - 16 - | LRB100 10927 HEP 21930 a |
|
| 1 | | in by either spouse after the marriage and before a judgment of
| 2 | | dissolution of marriage or legal separation or declaration of | 3 | | invalidity of the marriage are
presumed to be marital property. | 4 | | A spouse may overcome the presumption that these pension | 5 | | benefits are marital property
by showing through clear and | 6 | | convincing evidence that the pension benefits were acquired by | 7 | | a method
listed in subsection (a) of this Section. The right to | 8 | | a division of pension
benefits in just proportions under this | 9 | | Section is enforceable under Section
1-119 of the Illinois | 10 | | Pension Code.
| 11 | | The value of pension benefits in a retirement system | 12 | | subject to the Illinois
Pension Code shall be determined in | 13 | | accordance with the valuation procedures
established by the | 14 | | retirement system.
| 15 | | The recognition of pension benefits as marital property and | 16 | | the division of
those benefits pursuant to a Qualified Illinois | 17 | | Domestic Relations Order shall
not be deemed to be a | 18 | | diminishment, alienation, or impairment of those
benefits. The | 19 | | division of pension benefits is an allocation of property in
| 20 | | which each spouse has a species of common ownership.
| 21 | | (3) For purposes of distribution of property under this | 22 | | Section, all stock
options and restricted stock or similar form | 23 | | of benefit granted to either spouse after the marriage and | 24 | | before a judgment of
dissolution of marriage or legal | 25 | | separation or declaration of invalidity of marriage, whether
| 26 | | vested or non-vested or whether their value is ascertainable, |
| | | 10000SB1261sam001 | - 17 - | LRB100 10927 HEP 21930 a |
|
| 1 | | are presumed to
be marital property. This presumption of | 2 | | marital property is overcome by a
showing that the stock | 3 | | options or restricted stock or similar form of benefit were | 4 | | acquired by a method listed in subsection
(a) of this Section. | 5 | | The court shall allocate stock options and restricted stock or | 6 | | similar form of benefit between the
parties at the time of the | 7 | | judgment of dissolution of marriage or declaration
of | 8 | | invalidity of marriage recognizing that the value of the stock | 9 | | options and restricted stock or similar form of benefit may
not | 10 | | be then determinable and that the actual division of the | 11 | | options may not
occur until a future date. In making the | 12 | | allocation between the parties, the
court shall consider, in | 13 | | addition to the factors set forth in subsection (d) of
this | 14 | | Section, the following:
| 15 | | (i) All circumstances underlying the grant of the stock | 16 | | option and restricted stock or similar form of benefit | 17 | | including
but not limited to the vesting schedule, whether | 18 | | the grant was for past, present, or future efforts, whether | 19 | | the grant is designed to promote future performance or | 20 | | employment,
or any combination thereof.
| 21 | | (ii) The length of time from the grant of the option to | 22 | | the time the
option is exercisable.
| 23 | | (b-5) As to any existing policy of life insurance insuring | 24 | | the life of either spouse, or any interest in such policy, that | 25 | | constitutes marital property, whether whole life, term life, | 26 | | group term life, universal life, or other form of life
|
| | | 10000SB1261sam001 | - 18 - | LRB100 10927 HEP 21930 a |
|
| 1 | | insurance policy, and whether or not the value is | 2 | | ascertainable, the court shall allocate ownership, death | 3 | | benefits or the
right to assign death benefits, and the | 4 | | obligation for premium payments, if any, equitably between the | 5 | | parties at the
time of the judgment for dissolution or | 6 | | declaration of invalidity of marriage. | 7 | | (c) Commingled marital and non-marital property shall be | 8 | | treated in
the following manner, unless otherwise agreed by the | 9 | | spouses:
| 10 | | (1)(A) If marital and non-marital property are | 11 | | commingled by one estate being contributed into the other, | 12 | | the following shall apply: | 13 | | (i) If the contributed property loses its | 14 | | identity, the contributed property transmutes to the | 15 | | estate receiving the property, subject to the | 16 | | provisions of paragraph (2) of this subsection (c). | 17 | | (ii) If the contributed property retains its | 18 | | identity, it does not transmute and remains property of | 19 | | the contributing estate. | 20 | | (B) If marital and non-marital property are commingled | 21 | | into newly acquired property resulting in a loss of | 22 | | identity of the contributing estates, the commingled | 23 | | property shall be deemed transmuted to marital property, | 24 | | subject to the provisions of paragraph (2) of this | 25 | | subsection (c). | 26 | | (2)(A) When one estate of property makes a contribution |
| | | 10000SB1261sam001 | - 19 - | LRB100 10927 HEP 21930 a |
|
| 1 | | to another estate of property, the contributing estate | 2 | | shall be reimbursed from the estate receiving the | 3 | | contribution notwithstanding any transmutation. No such | 4 | | reimbursement shall be made with respect to a contribution | 5 | | that is not traceable by clear and convincing evidence or | 6 | | that was a gift. The court may provide for reimbursement | 7 | | out of the marital property to be divided or by imposing a | 8 | | lien against the non-marital property that received the | 9 | | contribution. | 10 | | (B) When a spouse contributes personal effort to | 11 | | non-marital property, it shall be deemed a contribution | 12 | | from the marital estate, which shall receive reimbursement | 13 | | for the efforts if the efforts are significant and result | 14 | | in substantial appreciation to the non-marital property | 15 | | except that if the marital estate reasonably has been | 16 | | compensated for his or her efforts, it shall not be deemed | 17 | | a contribution to the marital estate and there shall be no | 18 | | reimbursement to the marital estate. The court may provide | 19 | | for reimbursement out of the marital property to be divided | 20 | | or by imposing a lien against the non-marital property | 21 | | which received the contribution.
| 22 | | (d) In a proceeding for dissolution of marriage or | 23 | | declaration of invalidity
of marriage, or in a proceeding for | 24 | | disposition of property following
dissolution of marriage by a | 25 | | court that lacked personal jurisdiction over the
absent spouse | 26 | | or lacked jurisdiction to dispose of the property, the court
|
| | | 10000SB1261sam001 | - 20 - | LRB100 10927 HEP 21930 a |
|
| 1 | | shall assign each spouse's non-marital property to that spouse. | 2 | | It also shall
divide the marital property without regard to | 3 | | marital misconduct in just
proportions considering all | 4 | | relevant factors, including:
| 5 | | (1) each party's contribution to the acquisition, | 6 | | preservation, or
increase or decrease in value of the | 7 | | marital or non-marital property, including
(i) any | 8 | | decrease attributable to an advance from the parties' | 9 | | marital estate under subsection (c-1)(2) of Section 501; | 10 | | (ii) the contribution of a spouse as a homemaker or to the | 11 | | family unit; and (iii) whether the contribution is after | 12 | | the commencement of a proceeding for dissolution of | 13 | | marriage or declaration of invalidity of marriage;
| 14 | | (2) the dissipation by each party of the marital | 15 | | property, provided that a party's claim of dissipation is | 16 | | subject to the following conditions:
| 17 | | (i) a notice of intent to claim dissipation shall | 18 | | be given no later than 60 days
before trial or 30 days | 19 | | after discovery closes, whichever is later; | 20 | | (ii) the notice of intent to claim dissipation | 21 | | shall contain, at a minimum, a date or period of time | 22 | | during which the marriage began undergoing an | 23 | | irretrievable breakdown, an identification of the | 24 | | property dissipated, and a date or period of time | 25 | | during which the dissipation occurred; | 26 | | (iii) a certificate or service of the notice of |
| | | 10000SB1261sam001 | - 21 - | LRB100 10927 HEP 21930 a |
|
| 1 | | intent to claim dissipation shall be filed with the | 2 | | clerk of the court and be served pursuant to applicable | 3 | | rules; | 4 | | (iv) no dissipation shall be deemed to have | 5 | | occurred prior to 3 years after the party claiming | 6 | | dissipation knew or should have known of the | 7 | | dissipation, but in no event prior to 5 years before | 8 | | the filing of the petition for dissolution of marriage; | 9 | | (3) the value of the property assigned to each spouse;
| 10 | | (4) the duration of the marriage;
| 11 | | (5) the relevant economic circumstances of each spouse | 12 | | when the division
of property is to become effective, | 13 | | including the desirability of awarding
the family home, or | 14 | | the right to live therein for reasonable periods, to the
| 15 | | spouse having the primary residence of the children;
| 16 | | (6) any obligations and rights arising from a prior | 17 | | marriage
of either party;
| 18 | | (7) any prenuptial or postnuptial agreement of the | 19 | | parties;
| 20 | | (8) the age, health, station, occupation, amount and | 21 | | sources of income,
vocational skills, employability, | 22 | | estate, liabilities, and needs of each of the
parties;
| 23 | | (9) the custodial provisions for any children;
| 24 | | (10) whether the apportionment is in lieu of or in | 25 | | addition to
maintenance;
| 26 | | (11) the reasonable opportunity of each spouse for |
| | | 10000SB1261sam001 | - 22 - | LRB100 10927 HEP 21930 a |
|
| 1 | | future acquisition
of capital assets and income; and
| 2 | | (12) the tax consequences of the property division upon | 3 | | the
respective economic circumstances of the parties.
| 4 | | (e) Each spouse has a species of common ownership in the | 5 | | marital property
which vests at the time dissolution | 6 | | proceedings are commenced and continues
only during the | 7 | | pendency of the action. Any such interest in marital property
| 8 | | shall not encumber that property so as to restrict its | 9 | | transfer, assignment
or conveyance by the title holder unless | 10 | | such title holder is specifically
enjoined from making such | 11 | | transfer, assignment or conveyance.
| 12 | | (f) In a proceeding for dissolution of marriage or | 13 | | declaration of
invalidity of marriage or in a proceeding for | 14 | | disposition of property
following dissolution of marriage by a | 15 | | court that lacked personal
jurisdiction over the absent spouse | 16 | | or lacked jurisdiction to dispose of
the property, the court, | 17 | | in determining the value of the marital and
non-marital | 18 | | property for purposes of dividing the property, has the | 19 | | discretion to use the date of the trial or such other date as | 20 | | agreed upon by the parties, or ordered by the court within its | 21 | | discretion, for purposes of determining the value of assets or | 22 | | property.
| 23 | | (g) The court if necessary to protect and promote the best | 24 | | interests of the
children may set aside a portion of the | 25 | | jointly or separately held
estates of the parties in a separate | 26 | | fund or trust for the support,
maintenance, education, physical |
| | | 10000SB1261sam001 | - 23 - | LRB100 10927 HEP 21930 a |
|
| 1 | | and mental health, and general welfare of any minor, dependent,
| 2 | | or incompetent child of the parties. In making a determination | 3 | | under this
subsection, the court may consider, among other | 4 | | things, the conviction of a
party of any of the offenses set | 5 | | forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | 6 | | 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, | 7 | | 12-15, or 12-16, or Section 12-3.05 except for subdivision | 8 | | (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal | 9 | | Code of 2012 if the
victim is a
child of one or both of the | 10 | | parties, and there is a need for, and cost of,
care, healing | 11 | | and counseling for the child who is the victim of the crime.
| 12 | | (h) Unless specifically directed by a reviewing court, or | 13 | | upon good
cause shown, the court shall not on remand consider | 14 | | any increase or
decrease in the value of any "marital" or | 15 | | "non-marital" property occurring
since the assessment of such | 16 | | property at the original trial or hearing, but
shall use only | 17 | | that assessment made at the original trial or hearing.
| 18 | | (i) The court may make such judgments affecting the marital | 19 | | property
as may be just and may enforce such judgments by | 20 | | ordering a sale of marital
property, with proceeds therefrom to | 21 | | be applied as determined by the court.
| 22 | | (j) After proofs have closed in the final hearing on all | 23 | | other issues
between the parties (or in conjunction with the | 24 | | final hearing, if all parties
so stipulate) and before judgment | 25 | | is entered, a party's petition for
contribution to fees and | 26 | | costs incurred in the proceeding shall be heard and
decided, in |
| | | 10000SB1261sam001 | - 24 - | LRB100 10927 HEP 21930 a |
|
| 1 | | accordance with the following provisions:
| 2 | | (1) A petition for contribution, if not filed before | 3 | | the final hearing
on other issues between the parties, | 4 | | shall be filed no later than 14 days after
the closing of | 5 | | proofs in the final hearing or within such other period as | 6 | | the
court orders.
| 7 | | (2) Any award of contribution to one party from the | 8 | | other party shall be
based on the criteria for division of | 9 | | marital property under this Section 503
and, if maintenance | 10 | | has been awarded, on the criteria for an award of
| 11 | | maintenance under Section 504.
| 12 | | (3) The filing of a petition for contribution shall not | 13 | | be deemed to
constitute a waiver of the attorney-client | 14 | | privilege between the petitioning
party and current or | 15 | | former counsel; and such a waiver shall not constitute a
| 16 | | prerequisite to a hearing for contribution. If either | 17 | | party's presentation on
contribution, however, includes | 18 | | evidence within the scope of the
attorney-client | 19 | | privilege, the disclosure or disclosures shall be narrowly
| 20 | | construed and shall not be deemed by the court to | 21 | | constitute a general waiver
of the privilege as to matters | 22 | | beyond the scope of the presentation.
| 23 | | (4) No finding on which a contribution award is based | 24 | | or denied shall be
asserted against counsel or former | 25 | | counsel for purposes of any hearing under
subsection (c) or | 26 | | (e) of Section 508.
|
| | | 10000SB1261sam001 | - 25 - | LRB100 10927 HEP 21930 a |
|
| 1 | | (5) A contribution award (payable to either the | 2 | | petitioning
party or the party's counsel, or jointly, as | 3 | | the court determines) may be in
the form of either a set | 4 | | dollar amount or a percentage of fees and costs (or a
| 5 | | portion of fees and costs) to be subsequently agreed upon | 6 | | by the petitioning
party and counsel or, alternatively, | 7 | | thereafter determined in a hearing
pursuant to subsection | 8 | | (c) of Section 508 or previously or thereafter
determined | 9 | | in an independent proceeding under subsection (e) of | 10 | | Section
508.
| 11 | | (6) The changes to this Section 503 made by this | 12 | | amendatory Act of 1996
apply to cases pending on or after | 13 | | June 1, 1997, except as otherwise provided
in Section 508.
| 14 | | (k) In determining the value of assets or property under | 15 | | this Section, the court shall employ a fair market value | 16 | | standard. The date of valuation for the purposes of division of | 17 | | assets shall be the date of trial or such other date as agreed | 18 | | by the parties or ordered by the court, within its discretion. | 19 | | If the court grants a petition brought under Section 2-1401 of | 20 | | the Code of Civil Procedure, then the court has the discretion | 21 | | to use the date of the trial or such other date as agreed upon | 22 | | by the parties, or ordered by the court within its discretion, | 23 | | for purposes of determining the value of assets or property. | 24 | | (l) The court may seek the advice of financial experts or | 25 | | other professionals, whether or not employed by the court on a | 26 | | regular basis. The advice given shall be in writing and made |
| | | 10000SB1261sam001 | - 26 - | LRB100 10927 HEP 21930 a |
|
| 1 | | available by the court to counsel. Counsel may examine as a | 2 | | witness any professional consulted by the court designated as | 3 | | the court's witness. Professional personnel consulted by the | 4 | | court are subject to subpoena for the purposes of discovery, | 5 | | trial, or both. The court shall allocate the costs and fees of | 6 | | those professional personnel between the parties based upon the | 7 | | financial ability of each party and any other criteria the | 8 | | court considers appropriate, and the allocation is subject to | 9 | | reallocation under subsection (a) of Section 508. Upon the | 10 | | request of any party or upon the court's own motion, the court | 11 | | may conduct a hearing as to the reasonableness of those fees | 12 | | and costs. | 13 | | (m) The changes made to this Section by Public Act 97-941 | 14 | | apply only to petitions for dissolution of marriage filed on or | 15 | | after January 1, 2013 (the effective date of Public Act | 16 | | 97-941). | 17 | | (n) The court shall allocate the sole or joint ownership of | 18 | | and responsibility for a domestic animal of the parties. In | 19 | | issuing an order under this subsection, the court shall take | 20 | | into consideration the well-being of the domestic animal. | 21 | | (Source: P.A. 99-78, eff. 7-20-15; 99-90, eff. 1-1-16; 99-763, | 22 | | eff. 1-1-17 .)".
|
|