Full Text of HB3484 102nd General Assembly
HB3484 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 HB3484 Introduced 2/22/2021, by Rep. Denyse Stoneback SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/501 | from Ch. 40, par. 501 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Allows either party to petition or move for an allowance from the other party for a retainer fee to obtain an attorney, accompanied by a financial affidavit that is supported by documentary evidence, and a certificate stating that if an allowance is granted, the party shall only use it for retaining an attorney. Provides that the court shall review the financial affidavit and, if appropriate, grant an allowance to the party for a retainer fee.
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| | A BILL FOR |
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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 Illinois Marriage and Dissolution of | 5 | | Marriage Act is amended by changing Section 501 as follows:
| 6 | | (750 ILCS 5/501) (from Ch. 40, par. 501)
| 7 | | Sec. 501. Temporary relief. In all proceedings under this | 8 | | Act,
temporary relief shall be as follows:
| 9 | | (a) Either party may petition or move for:
| 10 | | (1) temporary maintenance or temporary support of a | 11 | | child of the
marriage entitled to support, accompanied by | 12 | | an affidavit as to the
factual basis for the relief | 13 | | requested. One form of financial affidavit, as determined | 14 | | by the Supreme Court, shall be used statewide. The | 15 | | financial affidavit shall be supported by documentary | 16 | | evidence including, but not limited to, income tax | 17 | | returns, pay stubs, and banking statements. Unless the | 18 | | court otherwise directs, any affidavit or supporting | 19 | | documentary evidence submitted pursuant
to this paragraph | 20 | | shall not be made
part of the public record of the | 21 | | proceedings but shall be available to
the court or an | 22 | | appellate court in which the proceedings are subject to
| 23 | | review, to the parties, their
attorneys, and such other |
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| 1 | | persons as the court
may direct. Upon motion of a party, a | 2 | | court may hold a hearing to determine whether and why | 3 | | there is a disparity between a party's sworn affidavit and | 4 | | the supporting documentation. If a party intentionally or | 5 | | recklessly files an inaccurate or misleading financial | 6 | | affidavit, the court shall impose significant penalties | 7 | | and sanctions including, but not limited to, costs and | 8 | | attorney's fees;
| 9 | | (2) a temporary restraining order or preliminary | 10 | | injunction, accompanied
by affidavit showing a
factual | 11 | | basis for any of the following relief:
| 12 | | (i) restraining any person from transferring, | 13 | | encumbering,
concealing or otherwise disposing of any | 14 | | property except in the usual
course of business or for | 15 | | the necessities of life, and, if so
restrained, | 16 | | requiring him to notify the moving party and his | 17 | | attorney of
any proposed extraordinary expenditures | 18 | | made after the order is issued; however, an order need | 19 | | not include an exception for transferring, | 20 | | encumbering,
or otherwise disposing of property in the | 21 | | usual course of business or for the necessities of | 22 | | life if the court enters appropriate orders that | 23 | | enable the parties to pay their necessary
personal and | 24 | | business expenses including, but not limited to, | 25 | | appropriate professionals to assist the court pursuant | 26 | | to subsection (l) of Section 503 to administer the |
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| 1 | | payment and accounting of such living and business | 2 | | expenses;
| 3 | | (ii) enjoining a party from removing a child from | 4 | | the jurisdiction
of the court for more than 14 days;
| 5 | | (iii) enjoining a party from striking or | 6 | | interfering with the
personal liberty of the other | 7 | | party or of any child; or
| 8 | | (iv) providing other injunctive relief proper in | 9 | | the circumstances;
or | 10 | | (2.5) an allowance from the other party for a retainer | 11 | | fee to obtain an attorney. The petition shall be | 12 | | accompanied by a financial affidavit that is supported by | 13 | | documentary evidence, and a certificate stating that if an | 14 | | allowance is granted, the party shall only use it for | 15 | | retaining an attorney. The court shall review the | 16 | | financial affidavit and, if appropriate, grant an | 17 | | allowance to the party for a retainer fee; or
| 18 | | (3) other appropriate temporary relief including, in | 19 | | the discretion of the court, ordering the purchase or sale | 20 | | of assets and requiring that a party or parties borrow | 21 | | funds in the appropriate circumstances.
| 22 | | Issues concerning temporary maintenance or temporary | 23 | | support of a child entitled to support shall be dealt with on a | 24 | | summary basis based on allocated parenting time, financial | 25 | | affidavits, tax returns, pay stubs, banking statements, and | 26 | | other
relevant documentation, except an evidentiary hearing |
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| 1 | | may be held upon a showing of good cause. If a party | 2 | | intentionally or recklessly files an inaccurate or misleading | 3 | | financial affidavit, the court shall impose significant | 4 | | penalties and sanctions including, but not limited to, costs | 5 | | and attorney's fees resulting from the improper | 6 | | representation. | 7 | | (b) The court may issue a temporary restraining order | 8 | | without
requiring notice to the other party only if it finds, | 9 | | on the basis of
the moving affidavit or other evidence, that | 10 | | irreparable injury will
result to the moving party if no order | 11 | | is issued until the time for
responding has elapsed.
| 12 | | (c) A response hereunder may be filed within 21 days after | 13 | | service
of notice of motion or at the time specified in the | 14 | | temporary
restraining order.
| 15 | | (c-1) As used in this subsection (c-1), "interim | 16 | | attorney's fees and
costs" means attorney's fees and costs
| 17 | | assessed
from time to time while a case is pending, in favor of | 18 | | the petitioning party's
current counsel, for reasonable fees | 19 | | and costs either already incurred or to be
incurred, and | 20 | | "interim award" means an award of interim attorney's fees and
| 21 | | costs. Interim awards shall be governed by the following:
| 22 | | (1) Except for good cause shown, a proceeding for (or | 23 | | relating to) interim
attorney's fees and costs in a | 24 | | pre-judgment dissolution proceeding shall be | 25 | | nonevidentiary and summary in nature. All hearings for or | 26 | | relating to interim attorney's fees and costs under this |
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| 1 | | subsection shall be scheduled expeditiously by the court. | 2 | | When a party files a petition for interim attorney's fees | 3 | | and
costs supported by one or more
affidavits that | 4 | | delineate relevant factors, the court (or a hearing | 5 | | officer)
shall assess an interim award after affording the | 6 | | opposing party a reasonable
opportunity to file a | 7 | | responsive pleading. A responsive pleading shall set out
| 8 | | the amount of each retainer or other payment or payments, | 9 | | or both, previously
paid to the responding party's counsel | 10 | | by or on behalf of the responding party. A responsive | 11 | | pleading shall include costs incurred, and shall indicate | 12 | | whether the costs are paid or unpaid.
In assessing an
| 13 | | interim award, the court shall consider all relevant | 14 | | factors, as presented,
that appear reasonable and | 15 | | necessary, including to the extent applicable:
| 16 | | (A) the income and property of each party, | 17 | | including alleged marital
property within the sole | 18 | | control of one party and alleged non-marital property
| 19 | | within access to a party;
| 20 | | (B) the needs of each party;
| 21 | | (C) the realistic earning capacity of each party;
| 22 | | (D) any impairment to present earning capacity of | 23 | | either party,
including
age and physical and emotional | 24 | | health;
| 25 | | (E) the standard of living established during the | 26 | | marriage;
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| 1 | | (F) the degree of complexity of the issues, | 2 | | including allocation of parental responsibility, | 3 | | valuation
or division (or both) of closely held | 4 | | businesses, and tax planning, as well as
reasonable | 5 | | needs for expert investigations or expert witnesses, | 6 | | or both;
| 7 | | (G) each party's access to relevant information;
| 8 | | (H) the amount of the payment or payments made or | 9 | | reasonably expected to
be made to the attorney for the | 10 | | other party; and
| 11 | | (I) any other factor that the court expressly | 12 | | finds to be just and
equitable.
| 13 | | (2) Any assessment of an interim award (including one | 14 | | pursuant to an
agreed
order) shall be without prejudice to | 15 | | any final allocation and without prejudice
as to any claim | 16 | | or right of either party or any counsel of record at the | 17 | | time
of the award. Any such claim or right may be presented | 18 | | by the appropriate
party or counsel at a hearing on | 19 | | contribution under subsection (j) of Section
503 or a | 20 | | hearing on counsel's fees under subsection (c) of Section | 21 | | 508. Unless
otherwise ordered by the court at the final | 22 | | hearing between the parties or in a
hearing under | 23 | | subsection (j) of Section 503 or subsection (c) of
Section | 24 | | 508, interim awards, as well as the aggregate of all other | 25 | | payments
by each party
to
counsel and related payments to | 26 | | third parties, shall be deemed to have been
advances from |
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| 1 | | the parties' marital estate. Any portion of any interim | 2 | | award
constituting an overpayment shall be remitted back | 3 | | to the appropriate party or
parties, or, alternatively, to | 4 | | successor counsel, as the court determines and
directs, | 5 | | after notice in a form designated by the Supreme Court. An | 6 | | order for the award of interim attorney's fees shall be a | 7 | | standardized form order and labeled "Interim Fee Award | 8 | | Order".
| 9 | | (3) In any proceeding under this subsection (c-1), the | 10 | | court (or hearing
officer) shall assess an interim award | 11 | | against an opposing party in an
amount necessary to enable | 12 | | the petitioning party to participate adequately in
the | 13 | | litigation, upon findings that the party from whom | 14 | | attorney's fees and
costs are sought has the financial | 15 | | ability to pay reasonable amounts and that
the party | 16 | | seeking attorney's fees and costs lacks sufficient access | 17 | | to assets
or income to pay reasonable amounts. In | 18 | | determining an award, the
court shall consider whether | 19 | | adequate participation in the litigation requires
| 20 | | expenditure of more fees and costs for a party that is not | 21 | | in control of assets
or relevant information. Except for | 22 | | good cause shown, an interim award shall
not be less than | 23 | | payments made or reasonably expected to be made to the | 24 | | counsel
for the other party. If the court finds that both | 25 | | parties
lack financial ability or access to assets or | 26 | | income for reasonable attorney's
fees and costs, the court |
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| 1 | | (or hearing officer) shall enter an order that
allocates | 2 | | available funds for each party's counsel, including | 3 | | retainers or
interim payments, or both, previously paid, | 4 | | in a manner that achieves
substantial parity between the | 5 | | parties.
| 6 | | (4) The changes to this Section 501 made by this | 7 | | amendatory Act of 1996
apply to cases pending on or after | 8 | | June 1, 1997, except as otherwise provided
in Section 508.
| 9 | | (c-2) Allocation of use of marital residence. Where
there | 10 | | is on file a verified complaint or verified petition seeking
| 11 | | temporary eviction from the marital residence, the court may, | 12 | | during the
pendency of the proceeding, only in cases where the | 13 | | physical or mental well-being of either spouse or
his or her | 14 | | children is jeopardized by occupancy of the marital residence | 15 | | by both
spouses, and only upon due notice and full hearing, | 16 | | unless waived by the
court on good cause shown, enter orders | 17 | | granting the exclusive possession of the marital residence to | 18 | | either spouse,
by eviction from, or restoration of, the | 19 | | marital residence, until the final
determination of the cause | 20 | | pursuant to the factors listed in Section 602.7 of this Act. No | 21 | | such order shall in any manner affect any
estate in homestead | 22 | | property of either party. In entering orders under this | 23 | | subsection (c-2), the court shall balance hardships to the | 24 | | parties. | 25 | | (d) A temporary order entered under this Section:
| 26 | | (1) does not prejudice the rights of the parties or |
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| 1 | | the child which
are to be adjudicated at subsequent | 2 | | hearings in the proceeding;
| 3 | | (2) may be revoked or modified before final judgment, | 4 | | on a showing
by affidavit and upon hearing; and
| 5 | | (3) terminates when the final judgment is entered or | 6 | | when the
petition for dissolution of marriage or legal | 7 | | separation or declaration
of invalidity of marriage is | 8 | | dismissed.
| 9 | | (e) The fees or costs of mediation shall
be borne by the | 10 | | parties and may be assessed by the court as it deems equitable | 11 | | without prejudice and are subject to reallocation at the | 12 | | conclusion of the case. | 13 | | (f) Companion animals. Either party may petition or move | 14 | | for the temporary allocation of sole or joint possession of | 15 | | and responsibility for a companion animal jointly owned by the | 16 | | parties. In issuing an order under this subsection, the court | 17 | | shall take into consideration the well-being of the companion | 18 | | animal. As used in this Section, "companion animal" does not | 19 | | include a service animal as defined in Section 2.01c of the | 20 | | Humane Care for Animals Act. | 21 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 22 | | 100-422, eff. 1-1-18 .)
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