Full Text of HB3484 102nd General Assembly
HB3484eng 102ND 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 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 identify the | 12 | | attorney to be retained and shall be accompanied by: | 13 | | (i) a financial affidavit, supported by | 14 | | documentary evidence; | 15 | | (ii) an affidavit from the identified attorney | 16 | | stating that the moving party has contacted the | 17 | | attorney and agreed to retain the attorney and that | 18 | | the attorney has agreed to enter an appearance if the | 19 | | court grants the relief by the moving party; and | 20 | | (iii) a certificate stating that if an allowance | 21 | | is granted, the party shall use it only for retaining | 22 | | the attorney. | 23 | | The court shall review the financial affidavit and | 24 | | attorney affidavit, and, if appropriate, grant an | 25 | | allowance to the party for a retainer fee. All awards | 26 | | under this paragraph shall be paid directly to the |
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| 1 | | identified attorney; or
| 2 | | (3) other appropriate temporary relief including, in | 3 | | the discretion of the court, ordering the purchase or sale | 4 | | of assets and requiring that a party or parties borrow | 5 | | funds in the appropriate circumstances.
| 6 | | Issues concerning temporary maintenance or temporary | 7 | | support of a child entitled to support shall be dealt with on a | 8 | | summary basis based on allocated parenting time, financial | 9 | | affidavits, tax returns, pay stubs, banking statements, and | 10 | | other
relevant documentation, except an evidentiary hearing | 11 | | may be held upon a showing of good cause. If a party | 12 | | intentionally or recklessly files an inaccurate or misleading | 13 | | financial affidavit, the court shall impose significant | 14 | | penalties and sanctions including, but not limited to, costs | 15 | | and attorney's fees resulting from the improper | 16 | | representation. | 17 | | (b) The court may issue a temporary restraining order | 18 | | without
requiring notice to the other party only if it finds, | 19 | | on the basis of
the moving affidavit or other evidence, that | 20 | | irreparable injury will
result to the moving party if no order | 21 | | is issued until the time for
responding has elapsed.
| 22 | | (c) A response hereunder may be filed within 21 days after | 23 | | service
of notice of motion or at the time specified in the | 24 | | temporary
restraining order.
| 25 | | (c-1) As used in this subsection (c-1), "interim | 26 | | attorney's fees and
costs" means attorney's fees and costs
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| 1 | | assessed
from time to time while a case is pending, in favor of | 2 | | the petitioning party's
current counsel, for reasonable fees | 3 | | and costs either already incurred or to be
incurred, and | 4 | | "interim award" means an award of interim attorney's fees and
| 5 | | costs. Interim awards shall be governed by the following:
| 6 | | (1) Except for good cause shown, a proceeding for (or | 7 | | relating to) interim
attorney's fees and costs in a | 8 | | pre-judgment dissolution proceeding shall be | 9 | | nonevidentiary and summary in nature. All hearings for or | 10 | | relating to interim attorney's fees and costs under this | 11 | | subsection shall be scheduled expeditiously by the court. | 12 | | When a party files a petition for interim attorney's fees | 13 | | and
costs supported by one or more
affidavits that | 14 | | delineate relevant factors, the court (or a hearing | 15 | | officer)
shall assess an interim award after affording the | 16 | | opposing party a reasonable
opportunity to file a | 17 | | responsive pleading. A responsive pleading shall set out
| 18 | | the amount of each retainer or other payment or payments, | 19 | | or both, previously
paid to the responding party's counsel | 20 | | by or on behalf of the responding party. A responsive | 21 | | pleading shall include costs incurred, and shall indicate | 22 | | whether the costs are paid or unpaid.
In assessing an
| 23 | | interim award, the court shall consider all relevant | 24 | | factors, as presented,
that appear reasonable and | 25 | | necessary, including to the extent applicable:
| 26 | | (A) the income and property of each party, |
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| 1 | | including alleged marital
property within the sole | 2 | | control of one party and alleged non-marital property
| 3 | | within access to a party;
| 4 | | (B) the needs of each party;
| 5 | | (C) the realistic earning capacity of each party;
| 6 | | (D) any impairment to present earning capacity of | 7 | | either party,
including
age and physical and emotional | 8 | | health;
| 9 | | (E) the standard of living established during the | 10 | | marriage;
| 11 | | (F) the degree of complexity of the issues, | 12 | | including allocation of parental responsibility, | 13 | | valuation
or division (or both) of closely held | 14 | | businesses, and tax planning, as well as
reasonable | 15 | | needs for expert investigations or expert witnesses, | 16 | | or both;
| 17 | | (G) each party's access to relevant information;
| 18 | | (H) the amount of the payment or payments made or | 19 | | reasonably expected to
be made to the attorney for the | 20 | | other party; and
| 21 | | (I) any other factor that the court expressly | 22 | | finds to be just and
equitable.
| 23 | | (2) Any assessment of an interim award (including one | 24 | | pursuant to an
agreed
order) shall be without prejudice to | 25 | | any final allocation and without prejudice
as to any claim | 26 | | or right of either party or any counsel of record at the |
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| 1 | | time
of the award. Any such claim or right may be presented | 2 | | by the appropriate
party or counsel at a hearing on | 3 | | contribution under subsection (j) of Section
503 or a | 4 | | hearing on counsel's fees under subsection (c) of Section | 5 | | 508. Unless
otherwise ordered by the court at the final | 6 | | hearing between the parties or in a
hearing under | 7 | | subsection (j) of Section 503 or subsection (c) of
Section | 8 | | 508, interim awards, as well as the aggregate of all other | 9 | | payments
by each party
to
counsel and related payments to | 10 | | third parties, shall be deemed to have been
advances from | 11 | | the parties' marital estate. Any portion of any interim | 12 | | award
constituting an overpayment shall be remitted back | 13 | | to the appropriate party or
parties, or, alternatively, to | 14 | | successor counsel, as the court determines and
directs, | 15 | | after notice in a form designated by the Supreme Court. An | 16 | | order for the award of interim attorney's fees shall be a | 17 | | standardized form order and labeled "Interim Fee Award | 18 | | Order".
| 19 | | (3) In any proceeding under this subsection (c-1), the | 20 | | court (or hearing
officer) shall assess an interim award | 21 | | against an opposing party in an
amount necessary to enable | 22 | | the petitioning party to participate adequately in
the | 23 | | litigation, upon findings that the party from whom | 24 | | attorney's fees and
costs are sought has the financial | 25 | | ability to pay reasonable amounts and that
the party | 26 | | seeking attorney's fees and costs lacks sufficient access |
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| 1 | | to assets
or income to pay reasonable amounts. In | 2 | | determining an award, the
court shall consider whether | 3 | | adequate participation in the litigation requires
| 4 | | expenditure of more fees and costs for a party that is not | 5 | | in control of assets
or relevant information. Except for | 6 | | good cause shown, an interim award shall
not be less than | 7 | | payments made or reasonably expected to be made to the | 8 | | counsel
for the other party. If the court finds that both | 9 | | parties
lack financial ability or access to assets or | 10 | | income for reasonable attorney's
fees and costs, the court | 11 | | (or hearing officer) shall enter an order that
allocates | 12 | | available funds for each party's counsel, including | 13 | | retainers or
interim payments, or both, previously paid, | 14 | | in a manner that achieves
substantial parity between the | 15 | | parties.
| 16 | | (4) The changes to this Section 501 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 | | (c-2) Allocation of use of marital residence. Where
there | 20 | | is on file a verified complaint or verified petition seeking
| 21 | | temporary eviction from the marital residence, the court may, | 22 | | during the
pendency of the proceeding, only in cases where the | 23 | | physical or mental well-being of either spouse or
his or her | 24 | | children is jeopardized by occupancy of the marital residence | 25 | | by both
spouses, and only upon due notice and full hearing, | 26 | | unless waived by the
court on good cause shown, enter orders |
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| 1 | | granting the exclusive possession of the marital residence to | 2 | | either spouse,
by eviction from, or restoration of, the | 3 | | marital residence, until the final
determination of the cause | 4 | | pursuant to the factors listed in Section 602.7 of this Act. No | 5 | | such order shall in any manner affect any
estate in homestead | 6 | | property of either party. In entering orders under this | 7 | | subsection (c-2), the court shall balance hardships to the | 8 | | parties. | 9 | | (d) A temporary order entered under this Section:
| 10 | | (1) does not prejudice the rights of the parties or | 11 | | the child which
are to be adjudicated at subsequent | 12 | | hearings in the proceeding;
| 13 | | (2) may be revoked or modified before final judgment, | 14 | | on a showing
by affidavit and upon hearing; and
| 15 | | (3) terminates when the final judgment is entered or | 16 | | when the
petition for dissolution of marriage or legal | 17 | | separation or declaration
of invalidity of marriage is | 18 | | dismissed.
| 19 | | (e) The fees or costs of mediation shall
be borne by the | 20 | | parties and may be assessed by the court as it deems equitable | 21 | | without prejudice and are subject to reallocation at the | 22 | | conclusion of the case. | 23 | | (f) Companion animals. Either party may petition or move | 24 | | for the temporary allocation of sole or joint possession of | 25 | | and responsibility for a companion animal jointly owned by the | 26 | | parties. In issuing an order under this subsection, the court |
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| 1 | | shall take into consideration the well-being of the companion | 2 | | animal. As used in this Section, "companion animal" does not | 3 | | include a service animal as defined in Section 2.01c of the | 4 | | Humane Care for Animals Act. | 5 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 6 | | 100-422, eff. 1-1-18 .)
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