Full Text of HB3484 102nd General Assembly
HB3484sam002 102ND GENERAL ASSEMBLY | Sen. Rachelle Crowe Filed: 5/20/2021
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| 1 | | AMENDMENT TO HOUSE BILL 3484
| 2 | | AMENDMENT NO. ______. Amend House Bill 3484 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 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 |
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| 1 | | returns, pay stubs, and banking statements. Unless the | 2 | | court otherwise directs, any affidavit or supporting | 3 | | documentary evidence submitted pursuant
to this paragraph | 4 | | shall not be made
part of the public record of the | 5 | | proceedings but shall be available to
the court or an | 6 | | appellate court in which the proceedings are subject to
| 7 | | review, to the parties, their
attorneys, and such other | 8 | | persons as the court
may direct. Upon motion of a party, a | 9 | | court may hold a hearing to determine whether and why | 10 | | there is a disparity between a party's sworn affidavit and | 11 | | the supporting documentation. If a party intentionally or | 12 | | recklessly files an inaccurate or misleading financial | 13 | | affidavit, the court shall impose significant penalties | 14 | | and sanctions including, but not limited to, costs and | 15 | | attorney's fees;
| 16 | | (2) a temporary restraining order or preliminary | 17 | | injunction, accompanied
by affidavit showing a
factual | 18 | | basis for any of the following relief:
| 19 | | (i) restraining any person from transferring, | 20 | | encumbering,
concealing or otherwise disposing of any | 21 | | property except in the usual
course of business or for | 22 | | the necessities of life, and, if so
restrained, | 23 | | requiring him to notify the moving party and his | 24 | | attorney of
any proposed extraordinary expenditures | 25 | | made after the order is issued; however, an order need | 26 | | not include an exception for transferring, |
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| 1 | | encumbering,
or otherwise disposing of property in the | 2 | | usual course of business or for the necessities of | 3 | | life if the court enters appropriate orders that | 4 | | enable the parties to pay their necessary
personal and | 5 | | business expenses including, but not limited to, | 6 | | appropriate professionals to assist the court pursuant | 7 | | to subsection (l) of Section 503 to administer the | 8 | | payment and accounting of such living and business | 9 | | expenses;
| 10 | | (ii) enjoining a party from removing a child from | 11 | | the jurisdiction
of the court for more than 14 days;
| 12 | | (iii) enjoining a party from striking or | 13 | | interfering with the
personal liberty of the other | 14 | | party or of any child; or
| 15 | | (iv) providing other injunctive relief proper in | 16 | | the circumstances;
or
| 17 | | (3) other appropriate temporary relief including, in | 18 | | the discretion of the court, ordering the purchase or sale | 19 | | of assets and requiring that a party or parties borrow | 20 | | funds in the appropriate circumstances.
| 21 | | Issues concerning temporary maintenance or temporary | 22 | | support of a child entitled to support shall be dealt with on a | 23 | | summary basis based on allocated parenting time, financial | 24 | | affidavits, tax returns, pay stubs, banking statements, and | 25 | | other
relevant documentation, except an evidentiary hearing | 26 | | may be held upon a showing of good cause. If a party |
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| 1 | | intentionally or recklessly files an inaccurate or misleading | 2 | | financial affidavit, the court shall impose significant | 3 | | penalties and sanctions including, but not limited to, costs | 4 | | and attorney's fees resulting from the improper | 5 | | representation. | 6 | | (b) The court may issue a temporary restraining order | 7 | | without
requiring notice to the other party only if it finds, | 8 | | on the basis of
the moving affidavit or other evidence, that | 9 | | irreparable injury will
result to the moving party if no order | 10 | | is issued until the time for
responding has elapsed.
| 11 | | (c) A response hereunder may be filed within 21 days after | 12 | | service
of notice of motion or at the time specified in the | 13 | | temporary
restraining order.
| 14 | | (c-1) As used in this subsection (c-1), "interim | 15 | | attorney's fees and
costs" means attorney's fees and costs , | 16 | | including an allowance from the other party for a retainer fee | 17 | | to obtain an attorney,
assessed
from time to time while a case | 18 | | is pending, in favor of the petitioning party's
current | 19 | | counsel, for reasonable fees and costs either already incurred | 20 | | or to be
incurred, and "interim award" means an award of | 21 | | interim attorney's fees and
costs , including an allowance from | 22 | | the other party for a retainer fee to obtain an attorney . | 23 | | Interim awards shall be governed by the following:
| 24 | | (1) Except for good cause shown, a proceeding for (or | 25 | | relating to) interim
attorney's fees and costs in a | 26 | | pre-judgment dissolution proceeding shall be |
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| 1 | | nonevidentiary and summary in nature. All hearings for or | 2 | | relating to interim attorney's fees and costs under this | 3 | | subsection shall be scheduled expeditiously by the court. | 4 | | When a party files a petition for interim attorney's fees | 5 | | and
costs supported by one or more
affidavits that | 6 | | delineate relevant factors, the court (or a hearing | 7 | | officer)
shall assess an interim award after affording the | 8 | | opposing party a reasonable
opportunity to file a | 9 | | responsive pleading. A responsive pleading shall set out
| 10 | | the amount of each retainer or other payment or payments, | 11 | | or both, previously
paid to the responding party's counsel | 12 | | by or on behalf of the responding party. A responsive | 13 | | pleading shall include costs incurred, and shall indicate | 14 | | whether the costs are paid or unpaid.
In assessing an
| 15 | | interim award, the court shall consider all relevant | 16 | | factors, as presented,
that appear reasonable and | 17 | | necessary, including to the extent applicable:
| 18 | | (A) the income and property of each party, | 19 | | including alleged marital
property within the sole | 20 | | control of one party and alleged non-marital property
| 21 | | within access to a party;
| 22 | | (B) the needs of each party;
| 23 | | (C) the realistic earning capacity of each party;
| 24 | | (D) any impairment to present earning capacity of | 25 | | either party,
including
age and physical and emotional | 26 | | health;
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| 1 | | (E) the standard of living established during the | 2 | | marriage;
| 3 | | (F) the degree of complexity of the issues, | 4 | | including allocation of parental responsibility, | 5 | | valuation
or division (or both) of closely held | 6 | | businesses, and tax planning, as well as
reasonable | 7 | | needs for expert investigations or expert witnesses, | 8 | | or both;
| 9 | | (G) each party's access to relevant information;
| 10 | | (H) the amount of the payment or payments made or | 11 | | reasonably expected to
be made to the attorney for the | 12 | | other party; and
| 13 | | (I) any other factor that the court expressly | 14 | | finds to be just and
equitable.
| 15 | | (1.5) A petition for interim fees that seeks an order | 16 | | for the payment of an initial retainer to retain an | 17 | | attorney shall have attached to it an affidavit from the | 18 | | attorney to be retained that the attorney has been | 19 | | contacted by the moving party and the attorney has agreed | 20 | | to enter an appearance if the court grants the relief | 21 | | requested, together with a certificate from the moving | 22 | | party that the interim fees granted will only be used by | 23 | | the moving party to retain the attorney. Any interim fees | 24 | | granted pursuant to this paragraph shall be paid directly | 25 | | to the identified attorney. | 26 | | (2) Any assessment of an interim award (including one |
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| 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 | 16 | | to 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 |
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| 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, | 17 | | in 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 |
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| 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 | 6 | | marital residence, until the final
determination of the cause | 7 | | pursuant to the factors listed in Section 602.7 of this Act. No | 8 | | such 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 | 14 | | the child which
are to be adjudicated at subsequent | 15 | | hearings in 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) Companion animals. Either party may petition or move |
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| 1 | | for the temporary allocation of sole or joint possession of | 2 | | and responsibility for a companion animal jointly owned by the | 3 | | parties. In issuing an order under this subsection, the court | 4 | | shall take into consideration the well-being of the companion | 5 | | animal. As used in this Section, "companion animal" does not | 6 | | include a service animal as defined in Section 2.01c of the | 7 | | Humane Care for Animals Act. | 8 | | (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 9 | | 100-422, eff. 1-1-18 .)".
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