Full Text of HB0233 95th General Assembly
HB0233 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB0233
Introduced 1/19/2007, by Rep. Monique D. Davis SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/103 |
from Ch. 40, par. 103 |
750 ILCS 5/302 |
from Ch. 40, par. 302 |
750 ILCS 5/304 |
from Ch. 40, par. 304 |
750 ILCS 5/403 |
from Ch. 40, par. 403 |
750 ILCS 5/501 |
from Ch. 40, par. 501 |
750 ILCS 5/511 |
from Ch. 40, par. 511 |
750 ILCS 5/604 |
from Ch. 40, par. 604 |
750 ILCS 5/606 |
from Ch. 40, par. 606 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that a party to an action for declaration of invalidity of marriage, dissolution of marriage, or legal separation may demand a trial by jury in accordance with the Code of Civil Procedure. Provides that the grounds for declaration of invalidity of marriage, dissolution of marriage, or legal separation shall be tried by the court without a jury. Provides that uncontested issues shall not be tried by a jury. Provides that proceedings for temporary relief and all post-judgment proceedings to enforce or modify a judgment of dissolution of marriage, legal separation, or invalidity of marriage shall be heard by the court without a jury. Provides that, in an action tried by the court without a jury, the court may interview a child of the marriage in chambers. Provides that, where the issue of custody is tried by a court with a jury, the court shall determine questions of law and the jury shall determine questions of fact.
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A BILL FOR
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HB0233 |
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| AN ACT in relation to civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Marriage and Dissolution of | 5 |
| Marriage Act is amended by changing Sections 103, 302, 304, | 6 |
| 403, 501, 511, 604, and 606 as follows:
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| (750 ILCS 5/103) (from Ch. 40, par. 103)
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| Sec. 103. Trial by Jury.) There shall be no trial by jury
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| under this Act , except where authorized in this Act .
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/302) (from Ch. 40, par. 302)
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| Sec. 302. Time of Commencement.) (a) A declaration of
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| invalidity under paragraphs (1) through (3) of Section 301
may | 14 |
| be sought by any of the following persons and must be
commenced | 15 |
| within the times specified:
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| (1) for any of the reasons set forth in paragraph (1) of
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| Section 301, by either party or by the legal representative
of | 18 |
| the party who lacked capacity to consent, no later than
90 days | 19 |
| after the petitioner obtained knowledge of the described
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| condition;
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| (2) for the reason set forth in paragraph (2) of Section | 22 |
| 301,
by either party, no later than one year after the |
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| petitioner
obtained knowledge of the described condition;
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| (3) for the reason set forth in paragraph (3) of Section | 3 |
| 301,
by the underaged party, his parent or guardian, prior to | 4 |
| the time
the underaged party reaches the age at which he could | 5 |
| have married
without needing to satisfy the omitted | 6 |
| requirement.
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| (b) In no event may a declaration of invalidity of marriage | 8 |
| be
sought after the death of either party to the marriage under
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| subsections (1), (2) and (3) of Section 301.
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| (c) A declaration of invalidity for the reason set forth
in | 11 |
| paragraph (4) of Section 301 may be sought by either party,
the | 12 |
| legal spouse in case of a bigamous marriage, the State's
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| Attorney or a child of either party, at any time not to exceed
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| 3 years following the death of the first party to die. | 15 |
| (d) Any party to a proceeding may demand a trial by jury in | 16 |
| accordance with the Code of Civil Procedure. The grounds for | 17 |
| declaration of invalidity of marriage shall be tried by the | 18 |
| court without a jury.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/304) (from Ch. 40, par. 304)
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| Sec. 304. Retroactivity.) Unless the court finds, after
a | 22 |
| consideration of all relevant circumstances, including
the | 23 |
| effect of a retroactive judgment on third parties, that
the | 24 |
| interests of justice would be served by making the judgment
not | 25 |
| retroactive, it shall declare the marriage invalid as of the
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| date of the marriage. The provisions of this Act relating to
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| property rights of the spouses, maintenance, support and | 3 |
| custody
of children on dissolution of marriage are applicable | 4 |
| to non-retroactive
judgments of invalidity of marriage only. If | 5 |
| the court declares a judgment of invalidity of marriage to be | 6 |
| non-retroactive and a party has demanded a trial by jury, | 7 |
| contested issues relating to
property rights of the spouses, | 8 |
| maintenance, support, and custody
of children shall be tried by | 9 |
| the court with a jury.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/403) (from Ch. 40, par. 403)
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| Sec. 403. Pleadings - Commencement - Abolition of Existing | 13 |
| Defenses
- Procedure.)
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| (a) The petition for dissolution of marriage or legal
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| separation shall be verified and shall minimally set forth:
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| (1) the age, occupation and residence of each party and | 17 |
| his length
of residence in this State;
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| (2) the date of the marriage and the place at which it | 19 |
| was
registered;
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| (2.5) whether a petition for dissolution of marriage is | 21 |
| pending in
any other county or state;
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| (3) that the jurisdictional requirements of subsection | 23 |
| (a) of
Section 401 have been met and that there exist | 24 |
| grounds for dissolution of
marriage or legal separation. | 25 |
| The petitioner need only allege the name
of the particular |
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| grounds relied upon, which shall constitute a legally
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| sufficient allegation of the grounds; and the respondent | 3 |
| shall be
entitled to demand a bill of particulars prior to | 4 |
| trial setting forth
the facts constituting the grounds, if | 5 |
| he so chooses. The petition must
also contain:
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| (4) the names, ages and addresses of all living | 7 |
| children of the
marriage and whether the wife is pregnant;
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| (5) any arrangements as to support, custody and | 9 |
| visitation of the
children and maintenance of a spouse; and
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| (6) the relief sought.
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| (b) Either or both parties to the marriage may initiate the
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| proceeding. Either party may demand a trial by jury in | 13 |
| accordance with the Code of Civil Procedure.
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| (c) The previously existing defense of recrimination is | 15 |
| abolished.
The defense of condonation is abolished only as to | 16 |
| condonations
occurring after a proceeding is filed under this | 17 |
| Act and after the
court has acquired jurisdiction over the | 18 |
| respondent.
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| (d) The court may join additional parties necessary and | 20 |
| proper for
the exercise of its authority under this Act.
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| (e) Contested trials shall be on a bifurcated basis with | 22 |
| the grounds
being tried first. The grounds shall be tried by | 23 |
| the court without a jury. Upon the court determining that the | 24 |
| grounds exist,
the court may allow additional time for the
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| parties to settle
amicably the remaining issues before resuming | 26 |
| the trial, or may
proceed immediately to trial on the
remaining |
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| issues. In cases tried by the court without a jury where the | 2 |
| grounds are uncontested and proved
as in cases of default, the | 3 |
| trial on all other remaining issues shall proceed
immediately, | 4 |
| if so ordered by the court or if the parties so stipulate,
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| issue on the pleadings notwithstanding. In cases tried by the | 6 |
| court with a jury, the trial on all other remaining issues | 7 |
| shall proceed
after the court has impaneled the jury. | 8 |
| Uncontested issues shall not be submitted to the jury.
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| (f) Even if no bill of particulars shall have been filed | 10 |
| demanding
the specification of the particular facts underlying | 11 |
| the allegation of
the grounds, the court shall nonetheless | 12 |
| require proper and sufficient
proof of the existence of the | 13 |
| grounds.
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| (Source: P.A. 90-174, eff. 10-1-97.)
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| (750 ILCS 5/501) (from Ch. 40, par. 501)
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| Sec. 501. Temporary Relief.) In all proceedings under this | 17 |
| Act,
temporary relief shall be as follows:
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| (a) Either party may move for:
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| (1) temporary maintenance or temporary support of a | 20 |
| child of the
marriage entitled to support, accompanied by | 21 |
| an affidavit as to the
factual basis for the relief | 22 |
| requested;
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| (2) a temporary restraining order or preliminary | 24 |
| injunction, accompanied
by affidavit showing a
factual | 25 |
| basis for any of the following relief:
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| (i) restraining any person from transferring, | 2 |
| encumbering,
concealing or otherwise disposing of any | 3 |
| property except in the usual
course of business or for | 4 |
| the necessities of life, and, if so
restrained, | 5 |
| requiring him to notify the moving party and his | 6 |
| attorney of
any proposed extraordinary expenditures | 7 |
| made after the order is issued;
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| (ii) enjoining a party from removing a child from | 9 |
| the jurisdiction
of the court;
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| (iii) enjoining a party from striking or | 11 |
| interfering with the
personal liberty of the other | 12 |
| party or of any child; or
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| (iv) providing other injunctive relief proper in | 14 |
| the circumstances;
or
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| (3) other appropriate temporary relief.
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| (b) The court may issue a temporary restraining order | 17 |
| without
requiring notice to the other party only if it finds, | 18 |
| on the basis of
the moving affidavit or other evidence, that | 19 |
| irreparable injury will
result to the moving party if no order | 20 |
| is issued until the time for
responding has elapsed.
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| (c) A response hereunder may be filed within 21 days after | 22 |
| service
of notice of motion or at the time specified in the | 23 |
| temporary
restraining order.
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| (c-1) As used in this subsection (c-1), "interim attorney's | 25 |
| fees and
costs" means attorney's fees and costs
assessed
from | 26 |
| time to time while a case is pending, in favor of the |
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| petitioning party's
current counsel, for reasonable fees and | 2 |
| costs either already incurred or to be
incurred, and "interim | 3 |
| award" means an award of interim attorney's fees and
costs. | 4 |
| Interim awards shall be governed by the following:
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| (1) Except for good cause shown, a proceeding for (or | 6 |
| relating to) interim
attorney's fees and costs shall be | 7 |
| nonevidentiary, summary in nature, and
expeditious. When a | 8 |
| party files a petition for interim attorney's fees and
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| costs supported by one or more
affidavits that delineate | 10 |
| relevant factors, the court (or a hearing officer)
shall | 11 |
| assess an interim award after affording the opposing party | 12 |
| a reasonable
opportunity to file a responsive pleading. A | 13 |
| responsive pleading shall set out
the amount of each | 14 |
| retainer or other payment or payments, or both, previously
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| paid to the responding party's counsel by or on behalf of | 16 |
| the responding party.
In assessing an
interim award, the | 17 |
| court shall consider all relevant factors, as presented,
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| that appear reasonable and necessary, including:
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| (A) the income and property of each party, | 20 |
| including alleged marital
property within the sole | 21 |
| control of one party and alleged non-marital property
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| within access to a party;
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| (B) the needs of each party;
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| (C) the realistic earning capacity of each party;
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| (D) any impairment to present earning capacity of | 26 |
| either party,
including
age and physical and emotional |
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| health;
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| (E) the standard of living established during the | 3 |
| marriage;
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| (F) the degree of complexity of the issues, | 5 |
| including custody, valuation
or division (or both) of | 6 |
| closely held businesses, and tax planning, as well as
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| reasonable needs for expert investigations or expert | 8 |
| witnesses, or both;
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| (G) each party's access to relevant information;
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| (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
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| (I) any other factor that the court expressly finds | 14 |
| to be just and
equitable.
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| (2) Any assessment of an interim award (including one | 16 |
| pursuant to an
agreed
order) shall be without prejudice to | 17 |
| any final allocation and without prejudice
as to any claim | 18 |
| or right of either party or any counsel of record at the | 19 |
| time
of the award. Any such claim or right may be presented | 20 |
| by the appropriate
party or counsel at a hearing on | 21 |
| contribution under subsection (j) of Section
503 or a | 22 |
| hearing on counsel's fees under subsection (c) of Section | 23 |
| 508. Unless
otherwise ordered by the court at the final | 24 |
| hearing between the parties or in a
hearing under | 25 |
| subsection (j) of Section 503 or subsection (c) of
Section | 26 |
| 508, interim awards, as well as the aggregate of all other |
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| payments
by each party
to
counsel and related payments to | 2 |
| third parties, shall be deemed to have been
advances from | 3 |
| the parties' marital estate. Any portion of any interim | 4 |
| award
constituting an overpayment shall be remitted back to | 5 |
| the appropriate party or
parties, or, alternatively, to | 6 |
| successor counsel, as the court determines and
directs, | 7 |
| after notice.
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| (3) In any proceeding under this subsection (c-1), the | 9 |
| court (or hearing
officer) shall assess an interim award | 10 |
| against an opposing party in an
amount necessary to enable | 11 |
| the petitioning party to participate adequately in
the | 12 |
| litigation, upon findings that the party from whom | 13 |
| attorney's fees and
costs are sought has the financial | 14 |
| ability to pay reasonable amounts and that
the party | 15 |
| seeking attorney's fees and costs lacks sufficient access | 16 |
| to assets
or income to pay reasonable amounts. In | 17 |
| determining an award, the
court shall consider whether | 18 |
| adequate participation in the litigation requires
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| expenditure of more fees and costs for a party that is not | 20 |
| in control of assets
or relevant information. Except for | 21 |
| good cause shown, an interim award shall
not be less than | 22 |
| payments made or reasonably expected to be made to the | 23 |
| counsel
for the other party. If the court finds that both | 24 |
| parties
lack financial ability or access to assets or | 25 |
| income for reasonable attorney's
fees and costs, the court | 26 |
| (or hearing officer) shall enter an order that
allocates |
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| available funds for each party's counsel, including | 2 |
| retainers or
interim payments, or both, previously paid, in | 3 |
| a manner that achieves
substantial parity between the | 4 |
| parties.
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| (4) The changes to this Section 501 made by this | 6 |
| amendatory Act of 1996
apply to cases pending on or after | 7 |
| June 1, 1997, except as otherwise provided
in Section 508.
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| (d) A temporary order entered under this Section:
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| (1) does not prejudice the rights of the parties or the | 10 |
| child which
are to be adjudicated at subsequent hearings in | 11 |
| the proceeding;
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| (2) may be revoked or modified before final judgment, | 13 |
| on a showing
by affidavit and upon hearing; and
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| (3) terminates when the final judgment is entered or | 15 |
| when the
petition for dissolution of marriage or legal | 16 |
| separation or declaration
of invalidity of marriage is | 17 |
| dismissed.
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| (e) All proceedings for temporary relief shall be heard by | 19 |
| the court without a jury.
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| (Source: P.A. 89-712, eff. 6-1-97.)
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| (750 ILCS 5/511) (from Ch. 40, par. 511)
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| Sec. 511. Procedure. A judgment of dissolution or of
legal | 23 |
| separation or of declaration of invalidity of marriage
may be | 24 |
| enforced or modified by order of court pursuant to petition.
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| (a) Any judgment entered within this State may be enforced
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| or modified in the judicial circuit wherein such judgment was
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| entered or last modified by the filing of a petition with
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| notice mailed to the respondent at his last
known address, or | 4 |
| by the issuance of summons to the respondent.
If neither party | 5 |
| continues to reside in the county wherein such judgment
was | 6 |
| entered or last modified, the court on the motion of either | 7 |
| party or on
its own motion may transfer a post-judgment | 8 |
| proceeding, including a
proceeding under the Income | 9 |
| Withholding for Support Act, to another county or judicial
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| circuit, as appropriate, where either party resides. If the | 11 |
| post-judgment
proceeding is with respect to maintenance or | 12 |
| support, any such transfer
shall be to the county or judicial | 13 |
| circuit wherein the recipient or
proposed recipient of such | 14 |
| maintenance or support resides.
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| (b) In any post-judgment proceeding to enforce or modify in
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| one judicial circuit the judgment of another judicial circuit
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| of this State, the moving party shall commence the proceeding
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| by filing a petition establishing the judgment and attaching
a | 19 |
| copy of the judgment as a part of the petition. The parties
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| shall continue to be designated as in the original proceeding.
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| Notice of the filing of the petition shall be mailed to the
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| clerk of the court wherein the judgment was entered and last
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| modified in the same manner as notice is mailed when | 24 |
| registering
a foreign judgment. Summons shall be served as | 25 |
| provided by law.
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| (c) In any post-judgment proceeding to enforce or modify |
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| the
judgment of another state, the moving party shall commence | 2 |
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proceeding by filing a petition to enroll that judgment,
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| attaching a copy thereof as a part of the petition and proceed
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| as provided for in paragraph (b) hereof.
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| (d) In any post-judgment proceeding to enforce a judgment | 6 |
| or order for
payment of maintenance or support, including a | 7 |
| proceeding under the Income
Withholding for Support Act, where | 8 |
| the terms of such judgment or order provide
that
payments of | 9 |
| such maintenance or support are to be made to the clerk of the
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| court and where neither party continues to reside in the county | 11 |
| wherein
such judgment or order was entered or last modified, | 12 |
| the court on the
motion of either party or on its own motion | 13 |
| may transfer the collection of
the maintenance or support to | 14 |
| the clerk of the court in another county or
judicial circuit, | 15 |
| as appropriate, wherein the recipient of the maintenance
or | 16 |
| support payments resides.
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| (e) All post-judgment proceedings to enforce or modify a | 18 |
| judgment of dissolution,
legal separation, or invalidity of | 19 |
| marriage shall be heard by the court without a jury.
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| (Source: P.A. 90-673, eff. 1-1-99.)
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| (750 ILCS 5/604) (from Ch. 40, par. 604)
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| Sec. 604. Interviews.) (a) In a case tried by the court | 23 |
| without a jury, the
The court may interview the child in | 24 |
| chambers
to ascertain the child's wishes as to his custodian | 25 |
| and as to visitation.
Counsel shall be present at the interview |
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| unless otherwise agreed upon by
the parties. The court shall | 2 |
| cause a court reporter to be present who shall
make a complete | 3 |
| record of the interview instantaneously to be part of the
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| record in the case.
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| (b) The court may seek the advice of professional | 6 |
| personnel, whether or
not employed by the court on a regular | 7 |
| basis. The advice given shall be
in writing and made available | 8 |
| by the court to counsel. Counsel may examine,
as a witness, any | 9 |
| professional personnel consulted by the court, designated
as a | 10 |
| court's witness.
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| (Source: P.A. 80-923.)
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| (750 ILCS 5/606) (from Ch. 40, par. 606)
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| Sec. 606. Hearings.
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| (a) Custody proceedings shall receive priority in
being set | 15 |
| for hearing.
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| (b) The court may tax as costs the payment of necessary | 17 |
| travel and other
expenses incurred by any person whose presence | 18 |
| at the hearing the court
deems necessary to determine the best | 19 |
| interest of the child.
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| (c) If no demand for a trial by jury has been made under | 21 |
| Part III or Part IV, the
The court, without a jury, shall | 22 |
| determine questions of law and fact.
If a demand for a trial by | 23 |
| jury has been made under Part III or Part IV and custody is | 24 |
| contested, the court shall determine questions of law and the | 25 |
| jury shall determine questions of fact. If it finds that a |
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| public hearing may be detrimental to the child's best
interest, | 2 |
| the court may exclude the public from a custody hearing, but | 3 |
| may
admit any person who has a direct and legitimate interest | 4 |
| in the particular
case or a legitimate educational or research | 5 |
| interest in the work of the court.
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| (d) If the court finds it necessary, in order to protect | 7 |
| the child's
welfare,
that the record of any interview, report, | 8 |
| investigation, or testimony in a
custody
proceeding be kept | 9 |
| secret, the court may make an appropriate order sealing the
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| record.
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| (e) Previous statements made by the child relating to any | 12 |
| allegations
that the child is an abused or neglected child | 13 |
| within the meaning of the
Abused and Neglected Child Reporting | 14 |
| Act, or an abused or neglected minor
within the meaning of the | 15 |
| Juvenile Court Act of 1987, shall be admissible
in evidence in | 16 |
| a hearing concerning custody of or visitation with the
child. | 17 |
| No such statement, however, if uncorroborated and not subject | 18 |
| to
cross-examination, shall be sufficient in itself to support | 19 |
| a finding of
abuse or neglect.
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| (Source: P.A. 87-1081.)
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