Full Text of SB1428 97th General Assembly
SB1428 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB1428 Introduced 2/9/2011, by Sen. Christine Radogno SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/503 | from Ch. 40, par. 503 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Makes a technical change in a Section concerning the disposition of property.
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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 503 as follows:
| 6 | | (750 ILCS 5/503) (from Ch. 40, par. 503)
| 7 | | Sec. 503. Disposition of property.
| 8 | | (a) For purposes of this Act, "marital property" means all | 9 | | property acquired
by either spouse subsequent to the the | 10 | | marriage, except the following, which is
known as "non-marital | 11 | | property":
| 12 | | (1) property acquired by gift, legacy or descent;
| 13 | | (2) property acquired in exchange for property | 14 | | acquired before the
marriage or in exchange for property | 15 | | acquired by gift, legacy or descent;
| 16 | | (3) property acquired by a spouse after a judgment of | 17 | | legal separation;
| 18 | | (4) property excluded by valid agreement of the | 19 | | parties;
| 20 | | (5) any judgment or property obtained by judgment | 21 | | awarded to a spouse
from the other spouse;
| 22 | | (6) property acquired before the marriage;
| 23 | | (7) the increase in value of property acquired by a |
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| 1 | | method listed in
paragraphs (1) through (6) of this | 2 | | subsection, irrespective of whether the
increase results | 3 | | from a contribution of marital property, non-marital | 4 | | property,
the personal effort of a spouse, or otherwise, | 5 | | subject to the right of
reimbursement provided in | 6 | | subsection (c) of this Section; and
| 7 | | (8) income from property acquired by a method listed in | 8 | | paragraphs (1)
through (7) of this subsection if the income | 9 | | is not attributable to the
personal effort of a spouse.
| 10 | | (b)(1) For purposes of distribution of property pursuant to | 11 | | this
Section, all property acquired by either spouse after the | 12 | | marriage and before a
judgment of dissolution of marriage or | 13 | | declaration of invalidity of marriage,
including non-marital | 14 | | property transferred into some form of co-ownership
between the | 15 | | spouses, is presumed to be marital property, regardless of | 16 | | whether
title is held individually or by the spouses in some | 17 | | form of co-ownership such
as joint tenancy, tenancy in common, | 18 | | tenancy by the entirety, or community
property. The presumption | 19 | | of marital property is overcome by a showing that
the property | 20 | | was acquired by a method listed in subsection (a) of this | 21 | | Section.
| 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) acquired by either spouse | 25 | | after the marriage and before a judgment of
dissolution of | 26 | | marriage or declaration of invalidity of the marriage are
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| 1 | | presumed to be marital property, regardless of which spouse | 2 | | participates in the
pension plan. The presumption that these | 3 | | pension benefits are marital property
is overcome by a showing | 4 | | that the pension benefits were acquired by a method
listed in | 5 | | subsection (a) of this Section. The right to a division of | 6 | | pension
benefits in just proportions under this Section is | 7 | | enforceable under Section
1-119 of the Illinois Pension Code.
| 8 | | The value of pension benefits in a retirement system | 9 | | subject to the Illinois
Pension Code shall be determined in | 10 | | accordance with the valuation procedures
established by the | 11 | | retirement system.
| 12 | | The recognition of pension benefits as marital property and | 13 | | the division of
those benefits pursuant to a Qualified Illinois | 14 | | Domestic Relations Order shall
not be deemed to be a | 15 | | diminishment, alienation, or impairment of those
benefits. The | 16 | | division of pension benefits is an allocation of property in
| 17 | | which each spouse has a species of common ownership.
| 18 | | (3) For purposes of distribution of property under this | 19 | | Section, all stock
options granted to either spouse after the | 20 | | marriage and before a judgment of
dissolution of marriage or | 21 | | declaration of invalidity of marriage, whether
vested or | 22 | | non-vested or whether their value is ascertainable, are | 23 | | presumed to
be marital property. This presumption of marital | 24 | | property is overcome by a
showing that the stock options were | 25 | | acquired by a method listed in subsection
(a) of this Section. | 26 | | The court shall allocate stock options between the
parties at |
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| 1 | | the time of the judgment of dissolution of marriage or | 2 | | declaration
of invalidity of marriage recognizing that the | 3 | | value of the stock options may
not be then determinable and | 4 | | that the actual division of the options may not
occur until a | 5 | | future date. In making the allocation between the parties, the
| 6 | | court shall consider, in addition to the factors set forth in | 7 | | subsection (d) of
this Section, the following:
| 8 | | (i) All circumstances underlying the grant of the stock | 9 | | option including
but not limited to whether the grant was | 10 | | for past, present, or future efforts,
or any combination | 11 | | thereof.
| 12 | | (ii) The length of time from the grant of the option to | 13 | | the time the
option is exercisable.
| 14 | | (c) Commingled marital and non-marital property shall be | 15 | | treated in
the following manner, unless otherwise agreed by the | 16 | | spouses:
| 17 | | (1) When marital and non-marital property are | 18 | | commingled by contributing
one estate of property into | 19 | | another resulting in a loss of identity of the
contributed | 20 | | property, the classification of the contributed property | 21 | | is
transmuted to the estate receiving the contribution, | 22 | | subject to the provisions
of paragraph (2) of this | 23 | | subsection; provided that if marital and non-marital
| 24 | | property are commingled into newly acquired property | 25 | | resulting in a loss
of identity of the contributing | 26 | | estates, the commingled property shall be
deemed |
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| 1 | | transmuted to marital property, subject to the provisions | 2 | | of paragraph
(2) of this subsection.
| 3 | | (2) When one estate of property makes a contribution to | 4 | | another estate
of property, or when a spouse contributes | 5 | | personal effort to non-marital
property, the contributing | 6 | | estate shall be reimbursed from the estate receiving
the | 7 | | contribution notwithstanding any transmutation; provided, | 8 | | that no such
reimbursement shall be made with respect to a | 9 | | contribution which is not
retraceable by clear and | 10 | | convincing evidence, or was a gift, or, in the
case of a | 11 | | contribution of personal effort of a spouse to non-marital | 12 | | property,
unless the effort is significant and results in | 13 | | substantial appreciation
of the non-marital property. | 14 | | Personal effort of a spouse shall be deemed
a contribution | 15 | | by the marital estate. The court may provide for | 16 | | reimbursement
out of the marital property to be divided or | 17 | | by imposing a lien against the
non-marital property which | 18 | | received the contribution.
| 19 | | (d) In a proceeding for dissolution of marriage or | 20 | | declaration of invalidity
of marriage, or in a proceeding for | 21 | | disposition of property following
dissolution of marriage by a | 22 | | court which lacked personal jurisdiction over the
absent spouse | 23 | | or lacked jurisdiction to dispose of the property, the court
| 24 | | shall assign each spouse's non-marital property to that spouse. | 25 | | It also shall
divide the marital property without regard to | 26 | | marital misconduct in just
proportions considering all |
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| 1 | | relevant factors, including:
| 2 | | (1) the contribution of each party to the acquisition, | 3 | | preservation, or
increase or decrease in value of the | 4 | | marital or non-marital property, including
(i) any such | 5 | | decrease attributable to a payment deemed to have been an | 6 | | advance from the parties' marital estate under subsection | 7 | | (c-1)(2) of Section 501 and (ii) the contribution of a | 8 | | spouse as a homemaker or to the family unit;
| 9 | | (2) the dissipation by each party of the marital or | 10 | | non-marital property;
| 11 | | (3) the value of the property assigned to each spouse;
| 12 | | (4) the duration of the marriage;
| 13 | | (5) the relevant economic circumstances of each spouse | 14 | | when the division
of property is to become effective, | 15 | | including the desirability of awarding
the family home, or | 16 | | the right to live therein for reasonable periods, to the
| 17 | | spouse having custody of the children;
| 18 | | (6) any obligations and rights arising from a prior | 19 | | marriage
of either party;
| 20 | | (7) any antenuptial agreement of the parties;
| 21 | | (8) the age, health, station, occupation, amount and | 22 | | sources of income,
vocational skills, employability, | 23 | | estate, liabilities, and needs of each of the
parties;
| 24 | | (9) the custodial provisions for any children;
| 25 | | (10) whether the apportionment is in lieu of or in | 26 | | addition to
maintenance;
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| 1 | | (11) the reasonable opportunity of each spouse for | 2 | | future acquisition
of capital assets and income; and
| 3 | | (12) the tax consequences of the property division upon | 4 | | the
respective economic circumstances of the parties.
| 5 | | (e) Each spouse has a species of common ownership in the | 6 | | marital property
which vests at the time dissolution | 7 | | proceedings are commenced and continues
only during the | 8 | | pendency of the action. Any such interest in marital property
| 9 | | shall not encumber that property so as to restrict its | 10 | | transfer, assignment
or conveyance by the title holder unless | 11 | | such title holder is specifically
enjoined from making such | 12 | | transfer, assignment or conveyance.
| 13 | | (f) In a proceeding for dissolution of marriage or | 14 | | declaration of
invalidity of marriage or in a proceeding for | 15 | | disposition of property
following dissolution of marriage by a | 16 | | court that lacked personal
jurisdiction over the absent spouse | 17 | | or lacked jurisdiction to dispose of
the property, the court, | 18 | | in determining the value of the marital and
non-marital | 19 | | property for purposes of dividing the property, shall value the
| 20 | | property as of the date of trial or some other date as close to | 21 | | the date
of trial as is practicable.
| 22 | | (g) The court if necessary to protect and promote the best | 23 | | interests of the
children may set aside a portion of the | 24 | | jointly or separately held
estates of the parties in a separate | 25 | | fund or trust for the support,
maintenance, education, physical | 26 | | and mental health, and general welfare of any minor, dependent,
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| 1 | | or incompetent child of the parties. In making a determination | 2 | | under this
subsection, the court may consider, among other | 3 | | things, the conviction of a
party of any of the offenses set | 4 | | forth in Section 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, | 5 | | 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if | 6 | | the
victim is a
child of one or both of the parties, and there | 7 | | is a need for, and cost of,
care, healing and counseling for | 8 | | the child who is the victim of the crime.
| 9 | | (h) Unless specifically directed by a reviewing court, or | 10 | | upon good
cause shown, the court shall not on remand consider | 11 | | any increase or
decrease in the value of any "marital" or | 12 | | "non-marital" property occurring
since the assessment of such | 13 | | property at the original trial or hearing, but
shall use only | 14 | | that assessment made at the original trial or hearing.
| 15 | | (i) The court may make such judgments affecting the marital | 16 | | property
as may be just and may enforce such judgments by | 17 | | ordering a sale of marital
property, with proceeds therefrom to | 18 | | be applied as determined by the court.
| 19 | | (j) After proofs have closed in the final hearing on all | 20 | | other issues
between the parties (or in conjunction with the | 21 | | final hearing, if all parties
so stipulate) and before judgment | 22 | | is entered, a party's petition for
contribution to fees and | 23 | | costs incurred in the proceeding shall be heard and
decided, in | 24 | | accordance with the following provisions:
| 25 | | (1) A petition for contribution, if not filed before | 26 | | the final hearing
on other issues between the parties, |
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| 1 | | shall be filed no later than 30 days after
the closing of | 2 | | proofs in the final hearing or within such other period as | 3 | | the
court orders.
| 4 | | (2) Any award of contribution to one party from the | 5 | | other party shall be
based on the criteria for division of | 6 | | marital property under this Section 503
and, if maintenance | 7 | | has been awarded, on the criteria for an award of
| 8 | | maintenance under Section 504.
| 9 | | (3) The filing of a petition for contribution shall not | 10 | | be deemed to
constitute a waiver of the attorney-client | 11 | | privilege between the petitioning
party and current or | 12 | | former counsel; and such a waiver shall not constitute a
| 13 | | prerequisite to a hearing for contribution. If either | 14 | | party's presentation on
contribution, however, includes | 15 | | evidence within the scope of the
attorney-client | 16 | | privilege, the disclosure or disclosures shall be narrowly
| 17 | | construed and shall not be deemed by the court to | 18 | | constitute a general waiver
of the privilege as to matters | 19 | | beyond the scope of the presentation.
| 20 | | (4) No finding on which a contribution award is based | 21 | | or denied shall be
asserted against counsel or former | 22 | | counsel for purposes of any hearing under
subsection (c) or | 23 | | (e) of Section 508.
| 24 | | (5) A contribution award (payable to either the | 25 | | petitioning
party or the party's counsel, or jointly, as | 26 | | the court determines) may be in
the form of either a set |
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| 1 | | dollar amount or a percentage of fees and costs (or a
| 2 | | portion of fees and costs) to be subsequently agreed upon | 3 | | by the petitioning
party and counsel or, alternatively, | 4 | | thereafter determined in a hearing
pursuant to subsection | 5 | | (c) of Section 508 or previously or thereafter
determined | 6 | | in an independent proceeding under subsection (e) of | 7 | | Section
508.
| 8 | | (6) The changes to this Section 503 made by this | 9 | | amendatory Act of 1996
apply to cases pending on or after | 10 | | June 1, 1997, except as otherwise provided
in Section 508.
| 11 | | (Source: P.A. 95-374, eff. 1-1-08; 96-583, eff. 1-1-10.)
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