Full Text of SB2437 100th General Assembly
SB2437sam001 100TH GENERAL ASSEMBLY | Sen. Chuck Weaver Filed: 3/12/2018
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| 1 | | AMENDMENT TO SENATE BILL 2437
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2437 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 Section 503 as follows:
| 6 | | (750 ILCS 5/503) (from Ch. 40, par. 503)
| 7 | | Sec. 503. Disposition of property and debts.
| 8 | | (a) For purposes of this Act, "marital property" means all | 9 | | property, including debts and other obligations, acquired
by | 10 | | either spouse subsequent to the marriage, except the following, | 11 | | which is
known as "non-marital property":
| 12 | | (1) property acquired by gift, legacy or descent or | 13 | | property acquired in exchange for such property;
| 14 | | (2) property acquired in exchange for property | 15 | | acquired before the
marriage;
| 16 | | (3) property acquired by a spouse after a judgment of |
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| 1 | | legal separation;
| 2 | | (4) property excluded by valid agreement of the | 3 | | parties, including
a premarital agreement or a postnuptial | 4 | | agreement;
| 5 | | (5) any judgment or property obtained by judgment | 6 | | awarded to a spouse
from the other spouse except, however, | 7 | | when a spouse is required to sue the other spouse in order | 8 | | to obtain insurance coverage or otherwise recover from a | 9 | | third party and the recovery is directly related to amounts | 10 | | advanced by the marital estate, the judgment shall be | 11 | | considered marital property;
| 12 | | (6) property acquired before the marriage, except as it | 13 | | relates to retirement plans that may have both marital and | 14 | | non-marital characteristics;
| 15 | | (6.5) all property acquired by a spouse by
the sole use | 16 | | of non-marital property as collateral for a loan that then | 17 | | is used to acquire property
during the marriage; to the | 18 | | extent that the marital estate repays any portion of the | 19 | | loan, it shall be considered a contribution from the | 20 | | marital estate to the non-marital estate subject to | 21 | | reimbursement; | 22 | | (7) the increase in value of non-marital property, | 23 | | irrespective of whether the
increase results from a | 24 | | contribution of marital property, non-marital property,
| 25 | | the personal effort of a spouse, or otherwise, subject to | 26 | | the right of
reimbursement provided in subsection (c) of |
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| 1 | | this Section; and
| 2 | | (8) income from property acquired by a method listed in | 3 | | paragraphs (1)
through (7) of this subsection if the income | 4 | | is not attributable to the
personal effort of a spouse.
| 5 | | Property acquired prior to a marriage that would otherwise | 6 | | be non-marital property shall not be deemed to be marital | 7 | | property solely because the property was acquired in | 8 | | contemplation of marriage. | 9 | | The court shall make specific factual findings as to its | 10 | | classification of assets as marital or non-marital property, | 11 | | values, and other factual findings supporting its property | 12 | | award. | 13 | | (b)(1) For purposes of distribution of property, all | 14 | | property acquired by either spouse after the marriage and | 15 | | before a
judgment of dissolution of marriage or declaration of | 16 | | invalidity of marriage is presumed marital property. This | 17 | | presumption includes non-marital property transferred into | 18 | | some form of co-ownership
between the spouses, regardless of | 19 | | whether
title is held individually or by the spouses in some | 20 | | form of co-ownership such
as joint tenancy, tenancy in common, | 21 | | tenancy by the entirety, or community
property. The presumption | 22 | | of marital property is overcome by showing through clear and | 23 | | convincing evidence that
the property was acquired by a method | 24 | | listed in subsection (a) of this Section or was done for estate | 25 | | or tax planning purposes or for other reasons that establish | 26 | | that a transfer between spouses was not intended to be a gift.
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| 1 | | (2) For purposes of distribution of property pursuant to | 2 | | this Section,
all pension benefits (including pension benefits | 3 | | under the Illinois Pension
Code, defined benefit plans, defined | 4 | | contribution plans and accounts, individual retirement | 5 | | accounts, and non-qualified plans) acquired by or participated | 6 | | in by either spouse after the marriage and before a judgment of
| 7 | | dissolution of marriage or legal separation or declaration of | 8 | | invalidity of the marriage are
presumed to be marital property. | 9 | | A spouse may overcome the presumption that these pension | 10 | | benefits are marital property
by showing through clear and | 11 | | convincing evidence that the pension benefits were acquired by | 12 | | a method
listed in subsection (a) of this Section. The right to | 13 | | a division of pension
benefits in just proportions under this | 14 | | Section is enforceable under Section
1-119 of the Illinois | 15 | | Pension Code.
| 16 | | The value of pension benefits in a retirement system | 17 | | subject to the Illinois
Pension Code shall be determined in | 18 | | accordance with the valuation procedures
established by the | 19 | | retirement system.
| 20 | | The recognition of pension benefits as marital property and | 21 | | the division of
those benefits pursuant to a Qualified Illinois | 22 | | Domestic Relations Order shall
not be deemed to be a | 23 | | diminishment, alienation, or impairment of those
benefits. The | 24 | | division of pension benefits is an allocation of property in
| 25 | | which each spouse has a species of common ownership.
| 26 | | (3) For purposes of distribution of property under this |
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| 1 | | Section, all stock
options and restricted stock or similar form | 2 | | of benefit granted to either spouse after the marriage and | 3 | | before a judgment of
dissolution of marriage or legal | 4 | | separation or declaration of invalidity of marriage, whether
| 5 | | vested or non-vested or whether their value is ascertainable, | 6 | | are presumed to
be marital property. This presumption of | 7 | | marital property is overcome by a
showing that the stock | 8 | | options or restricted stock or similar form of benefit were | 9 | | acquired by a method listed in subsection
(a) of this Section. | 10 | | The court shall allocate stock options and restricted stock or | 11 | | similar form of benefit between the
parties at the time of the | 12 | | judgment of dissolution of marriage or declaration
of | 13 | | invalidity of marriage recognizing that the value of the stock | 14 | | options and restricted stock or similar form of benefit may
not | 15 | | be then determinable and that the actual division of the | 16 | | options may not
occur until a future date. In making the | 17 | | allocation between the parties, the
court shall consider, in | 18 | | addition to the factors set forth in subsection (d) of
this | 19 | | Section, the following:
| 20 | | (i) All circumstances underlying the grant of the stock | 21 | | option and restricted stock or similar form of benefit | 22 | | including
but not limited to the vesting schedule, whether | 23 | | the grant was for past, present, or future efforts, whether | 24 | | the grant is designed to promote future performance or | 25 | | employment,
or any combination thereof.
| 26 | | (ii) The length of time from the grant of the option to |
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| 1 | | the time the
option is exercisable.
| 2 | | (b-5) (1) As to any existing policy of life insurance | 3 | | insuring the life of either spouse, or any interest in such | 4 | | policy, that constitutes marital property, whether whole life, | 5 | | term life, group term life, universal life, or other form of | 6 | | life
insurance policy, and whether or not the value is | 7 | | ascertainable, the court shall allocate ownership, death | 8 | | benefits or the
right to assign death benefits, and the | 9 | | obligation for premium payments, if any, equitably between the | 10 | | parties at the
time of the judgment for dissolution or | 11 | | declaration of invalidity of marriage. | 12 | | (2) If a judgment of dissolution of marriage is entered | 13 | | after an insured has designated the insured's spouse as a | 14 | | beneficiary under a life insurance policy in force at the time | 15 | | of entry, the designation of the insured's former spouse as | 16 | | beneficiary is not effective unless: | 17 | | (A) the judgment designates the insured's former | 18 | | spouse as the beneficiary; | 19 | | (B) the insured redesignates the former spouse as the | 20 | | beneficiary after entry of the judgment; or | 21 | | (C) the former spouse is designated to receive the | 22 | | proceeds in trust for, on behalf of, or for the benefit of | 23 | | a child or a dependent of either former spouse. | 24 | | (3) If a designation is not effective under paragraph (2), | 25 | | the proceeds of the policy are payable to the named alternative | 26 | | beneficiary or, if there is not a named alternative |
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| 1 | | beneficiary, to the estate of the insured. | 2 | | (4) An insurer that pays the proceeds of a life insurance | 3 | | policy to the beneficiary under a designation that is not | 4 | | effective under paragraph (2) is liable for payment of the | 5 | | proceeds to the person or estate provided by paragraph (3) only | 6 | | if: | 7 | | (A) before payment of the proceeds to the designated | 8 | | beneficiary, the insurer receives written notice at the | 9 | | home office of the insurer from an interested person that | 10 | | the designation is not effective under paragraph (2); and | 11 | | (B) the insurer has not filed an interpleader. | 12 | | (c) Commingled marital and non-marital property shall be | 13 | | treated in
the following manner, unless otherwise agreed by the | 14 | | spouses:
| 15 | | (1)(A) If marital and non-marital property are | 16 | | commingled by one estate being contributed into the other, | 17 | | the following shall apply: | 18 | | (i) If the contributed property loses its | 19 | | identity, the contributed property transmutes to the | 20 | | estate receiving the property, subject to the | 21 | | provisions of paragraph (2) of this subsection (c). | 22 | | (ii) If the contributed property retains its | 23 | | identity, it does not transmute and remains property of | 24 | | the contributing estate. | 25 | | (B) If marital and non-marital property are commingled | 26 | | into newly acquired property resulting in a loss of |
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| 1 | | identity of the contributing estates, the commingled | 2 | | property shall be deemed transmuted to marital property, | 3 | | subject to the provisions of paragraph (2) of this | 4 | | subsection (c). | 5 | | (2)(A) When one estate of property makes a contribution | 6 | | to another estate of property, the contributing estate | 7 | | shall be reimbursed from the estate receiving the | 8 | | contribution notwithstanding any transmutation. No such | 9 | | reimbursement shall be made with respect to a contribution | 10 | | that is not traceable by clear and convincing evidence or | 11 | | that was a gift. The court may provide for reimbursement | 12 | | out of the marital property to be divided or by imposing a | 13 | | lien against the non-marital property that received the | 14 | | contribution. | 15 | | (B) When a spouse contributes personal effort to | 16 | | non-marital property, it shall be deemed a contribution | 17 | | from the marital estate, which shall receive reimbursement | 18 | | for the efforts if the efforts are significant and result | 19 | | in substantial appreciation to the non-marital property | 20 | | except that if the marital estate reasonably has been | 21 | | compensated for his or her efforts, it shall not be deemed | 22 | | a contribution to the marital estate and there shall be no | 23 | | reimbursement to the marital estate. The court may provide | 24 | | for reimbursement out of the marital property to be divided | 25 | | or by imposing a lien against the non-marital property | 26 | | which received the contribution.
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| 1 | | (d) In a proceeding for dissolution of marriage or | 2 | | declaration of invalidity
of marriage, or in a proceeding for | 3 | | disposition of property following
dissolution of marriage by a | 4 | | court that lacked personal jurisdiction over the
absent spouse | 5 | | or lacked jurisdiction to dispose of the property, the court
| 6 | | shall assign each spouse's non-marital property to that spouse. | 7 | | It also shall
divide the marital property without regard to | 8 | | marital misconduct in just
proportions considering all | 9 | | relevant factors, including:
| 10 | | (1) each party's contribution to the acquisition, | 11 | | preservation, or
increase or decrease in value of the | 12 | | marital or non-marital property, including
(i) any | 13 | | decrease attributable to an advance from the parties' | 14 | | marital estate under subsection (c-1)(2) of Section 501; | 15 | | (ii) the contribution of a spouse as a homemaker or to the | 16 | | family unit; and (iii) whether the contribution is after | 17 | | the commencement of a proceeding for dissolution of | 18 | | marriage or declaration of invalidity of marriage;
| 19 | | (2) the dissipation by each party of the marital | 20 | | property, provided that a party's claim of dissipation is | 21 | | subject to the following conditions:
| 22 | | (i) a notice of intent to claim dissipation shall | 23 | | be given no later than 60 days
before trial or 30 days | 24 | | after discovery closes, whichever is later; | 25 | | (ii) the notice of intent to claim dissipation | 26 | | shall contain, at a minimum, a date or period of time |
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| 1 | | during which the marriage began undergoing an | 2 | | irretrievable breakdown, an identification of the | 3 | | property dissipated, and a date or period of time | 4 | | during which the dissipation occurred; | 5 | | (iii) a certificate or service of the notice of | 6 | | intent to claim dissipation shall be filed with the | 7 | | clerk of the court and be served pursuant to applicable | 8 | | rules; | 9 | | (iv) no dissipation shall be deemed to have | 10 | | occurred prior to 3 years after the party claiming | 11 | | dissipation knew or should have known of the | 12 | | dissipation, but in no event prior to 5 years before | 13 | | the filing of the petition for dissolution of marriage; | 14 | | (3) the value of the property assigned to each spouse;
| 15 | | (4) the duration of the marriage;
| 16 | | (5) the relevant economic circumstances of each spouse | 17 | | when the division
of property is to become effective, | 18 | | including the desirability of awarding
the family home, or | 19 | | the right to live therein for reasonable periods, to the
| 20 | | spouse having the primary residence of the children;
| 21 | | (6) any obligations and rights arising from a prior | 22 | | marriage
of either party;
| 23 | | (7) any prenuptial or postnuptial agreement of the | 24 | | parties;
| 25 | | (8) the age, health, station, occupation, amount and | 26 | | sources of income,
vocational skills, employability, |
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| 1 | | estate, liabilities, and needs of each of the
parties;
| 2 | | (9) the custodial provisions for any children;
| 3 | | (10) whether the apportionment is in lieu of or in | 4 | | addition to
maintenance;
| 5 | | (11) the reasonable opportunity of each spouse for | 6 | | future acquisition
of capital assets and income; and
| 7 | | (12) the tax consequences of the property division upon | 8 | | the
respective economic circumstances of the parties.
| 9 | | (e) Each spouse has a species of common ownership in the | 10 | | marital property
which vests at the time dissolution | 11 | | proceedings are commenced and continues
only during the | 12 | | pendency of the action. Any such interest in marital property
| 13 | | shall not encumber that property so as to restrict its | 14 | | transfer, assignment
or conveyance by the title holder unless | 15 | | such title holder is specifically
enjoined from making such | 16 | | transfer, assignment or conveyance.
| 17 | | (f) In a proceeding for dissolution of marriage or | 18 | | declaration of
invalidity of marriage or in a proceeding for | 19 | | disposition of property
following dissolution of marriage by a | 20 | | court that lacked personal
jurisdiction over the absent spouse | 21 | | or lacked jurisdiction to dispose of
the property, the court, | 22 | | in determining the value of the marital and
non-marital | 23 | | property for purposes of dividing the property, has the | 24 | | discretion to use the date of the trial or such other date as | 25 | | agreed upon by the parties, or ordered by the court within its | 26 | | discretion, for purposes of determining the value of assets or |
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| 1 | | property.
| 2 | | (g) The court if necessary to protect and promote the best | 3 | | interests of the
children may set aside a portion of the | 4 | | jointly or separately held
estates of the parties in a separate | 5 | | fund or trust for the support,
maintenance, education, physical | 6 | | and mental health, and general welfare of any minor, dependent,
| 7 | | or incompetent child of the parties. In making a determination | 8 | | under this
subsection, the court may consider, among other | 9 | | things, the conviction of a
party of any of the offenses set | 10 | | forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, | 11 | | 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, | 12 | | 12-15, or 12-16, or Section 12-3.05 except for subdivision | 13 | | (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal | 14 | | Code of 2012 if the
victim is a
child of one or both of the | 15 | | parties, and there is a need for, and cost of,
care, healing | 16 | | and counseling for the child who is the victim of the crime.
| 17 | | (h) Unless specifically directed by a reviewing court, or | 18 | | upon good
cause shown, the court shall not on remand consider | 19 | | any increase or
decrease in the value of any "marital" or | 20 | | "non-marital" property occurring
since the assessment of such | 21 | | property at the original trial or hearing, but
shall use only | 22 | | that assessment made at the original trial or hearing.
| 23 | | (i) The court may make such judgments affecting the marital | 24 | | property
as may be just and may enforce such judgments by | 25 | | ordering a sale of marital
property, with proceeds therefrom to | 26 | | be applied as determined by the court.
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| 1 | | (j) After proofs have closed in the final hearing on all | 2 | | other issues
between the parties (or in conjunction with the | 3 | | final hearing, if all parties
so stipulate) and before judgment | 4 | | is entered, a party's petition for
contribution to fees and | 5 | | costs incurred in the proceeding shall be heard and
decided, in | 6 | | accordance with the following provisions:
| 7 | | (1) A petition for contribution, if not filed before | 8 | | the final hearing
on other issues between the parties, | 9 | | shall be filed no later than 14 days after
the closing of | 10 | | proofs in the final hearing or within such other period as | 11 | | the
court orders.
| 12 | | (2) Any award of contribution to one party from the | 13 | | other party shall be
based on the criteria for division of | 14 | | marital property under this Section 503
and, if maintenance | 15 | | has been awarded, on the criteria for an award of
| 16 | | maintenance under Section 504.
| 17 | | (3) The filing of a petition for contribution shall not | 18 | | be deemed to
constitute a waiver of the attorney-client | 19 | | privilege between the petitioning
party and current or | 20 | | former counsel; and such a waiver shall not constitute a
| 21 | | prerequisite to a hearing for contribution. If either | 22 | | party's presentation on
contribution, however, includes | 23 | | evidence within the scope of the
attorney-client | 24 | | privilege, the disclosure or disclosures shall be narrowly
| 25 | | construed and shall not be deemed by the court to | 26 | | constitute a general waiver
of the privilege as to matters |
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| 1 | | beyond the scope of the presentation.
| 2 | | (4) No finding on which a contribution award is based | 3 | | or denied shall be
asserted against counsel or former | 4 | | counsel for purposes of any hearing under
subsection (c) or | 5 | | (e) of Section 508.
| 6 | | (5) A contribution award (payable to either the | 7 | | petitioning
party or the party's counsel, or jointly, as | 8 | | the court determines) may be in
the form of either a set | 9 | | dollar amount or a percentage of fees and costs (or a
| 10 | | portion of fees and costs) to be subsequently agreed upon | 11 | | by the petitioning
party and counsel or, alternatively, | 12 | | thereafter determined in a hearing
pursuant to subsection | 13 | | (c) of Section 508 or previously or thereafter
determined | 14 | | in an independent proceeding under subsection (e) of | 15 | | Section
508.
| 16 | | (6) The changes to this Section 503 made by this | 17 | | amendatory Act of 1996
apply to cases pending on or after | 18 | | June 1, 1997, except as otherwise provided
in Section 508.
| 19 | | (k) In determining the value of assets or property under | 20 | | this Section, the court shall employ a fair market value | 21 | | standard. The date of valuation for the purposes of division of | 22 | | assets shall be the date of trial or such other date as agreed | 23 | | by the parties or ordered by the court, within its discretion. | 24 | | If the court grants a petition brought under Section 2-1401 of | 25 | | the Code of Civil Procedure, then the court has the discretion | 26 | | to use the date of the trial or such other date as agreed upon |
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| 1 | | by the parties, or ordered by the court within its discretion, | 2 | | for purposes of determining the value of assets or property. | 3 | | (l) The court may seek the advice of financial experts or | 4 | | other professionals, whether or not employed by the court on a | 5 | | regular basis. The advice given shall be in writing and made | 6 | | available by the court to counsel. Counsel may examine as a | 7 | | witness any professional consulted by the court designated as | 8 | | the court's witness. Professional personnel consulted by the | 9 | | court are subject to subpoena for the purposes of discovery, | 10 | | trial, or both. The court shall allocate the costs and fees of | 11 | | those professional personnel between the parties based upon the | 12 | | financial ability of each party and any other criteria the | 13 | | court considers appropriate, and the allocation is subject to | 14 | | reallocation under subsection (a) of Section 508. Upon the | 15 | | request of any party or upon the court's own motion, the court | 16 | | may conduct a hearing as to the reasonableness of those fees | 17 | | and costs. | 18 | | (m) The changes made to this Section by Public Act 97-941 | 19 | | apply only to petitions for dissolution of marriage filed on or | 20 | | after January 1, 2013 (the effective date of Public Act | 21 | | 97-941). | 22 | | (n) If the court finds that a companion animal of the | 23 | | parties is a marital asset, it shall allocate the sole or joint | 24 | | ownership of and responsibility for a companion animal of the | 25 | | parties. In issuing an order under this subsection, the court | 26 | | shall take into consideration the well-being of the companion |
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| 1 | | animal. As used in this Section, "companion animal" does not | 2 | | include a service animal as defined in Section 2.01c of the | 3 | | Humane Care for Animals Act. | 4 | | (Source: P.A. 99-78, eff. 7-20-15; 99-90, eff. 1-1-16; 99-763, | 5 | | eff. 1-1-17; 100-422, eff. 1-1-18 .)".
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