Full Text of HB2395 100th General Assembly
HB2395 100TH GENERAL ASSEMBLY |
| | 100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018 HB2395 Introduced , by Rep. Robert W. Pritchard SYNOPSIS AS INTRODUCED: |
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750 ILCS 5/504 | from Ch. 40, par. 504 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. Provides that notwithstanding any other provision of law, federal veterans' disability benefits received by a party shall not be considered to be income of that party for purposes of any maintenance determination under this Section. Provides that the court may not require that a party use federal veterans' disability benefits to pay maintenance.
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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 504 as follows:
| 6 | | (750 ILCS 5/504) (from Ch. 40, par. 504)
| 7 | | Sec. 504. Maintenance.
| 8 | | (a) Entitlement to maintenance. In a proceeding for | 9 | | dissolution of marriage or legal separation or
declaration of | 10 | | invalidity of marriage, or a proceeding for maintenance
| 11 | | following dissolution of the marriage by a court which lacked | 12 | | personal
jurisdiction over the absent spouse, the court may | 13 | | grant a maintenance award for either spouse in amounts and for | 14 | | periods of
time as the court deems just, without regard to | 15 | | marital misconduct, and the maintenance may
be paid from the | 16 | | income or property of the other spouse. The court shall first | 17 | | determine whether a maintenance award is appropriate, after | 18 | | consideration
of all relevant factors, including:
| 19 | | (1) the income and property of each party, including | 20 | | marital property
apportioned and non-marital property | 21 | | assigned to the party seeking maintenance as well as all | 22 | | financial obligations imposed on the parties as a result of | 23 | | the dissolution of marriage;
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| 1 | | (2) the needs of each party;
| 2 | | (3) the realistic present and future earning capacity | 3 | | of each party;
| 4 | | (4) any impairment of the present and future earning | 5 | | capacity of the
party seeking maintenance due to that party | 6 | | devoting time to domestic
duties or having forgone or | 7 | | delayed education, training,
employment, or
career | 8 | | opportunities due to the marriage;
| 9 | | (5) any impairment of the realistic present or future | 10 | | earning capacity of the party against whom maintenance is | 11 | | sought; | 12 | | (6) the time necessary to enable the party seeking | 13 | | maintenance to
acquire appropriate education, training, | 14 | | and employment, and whether that
party is able to support | 15 | | himself or herself through appropriate employment
or any | 16 | | parental responsibility arrangements and its effect on the | 17 | | party seeking employment;
| 18 | | (7) the standard of living established during the | 19 | | marriage;
| 20 | | (8) the duration of the marriage;
| 21 | | (9) the age, health, station, occupation, amount and | 22 | | sources of income, vocational skills, employability, | 23 | | estate, liabilities, and the needs of each of the parties;
| 24 | | (10) all sources of public and private income | 25 | | including, without limitation, disability and retirement | 26 | | income; |
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| 1 | | (11) the tax consequences of the property division upon | 2 | | the respective
economic circumstances of the parties;
| 3 | | (12) contributions and services by the party seeking | 4 | | maintenance to
the education, training, career or career | 5 | | potential, or license of the
other spouse;
| 6 | | (13) any valid agreement of the parties; and
| 7 | | (14) any other factor that the court expressly finds to | 8 | | be just and
equitable.
| 9 | | (b) (Blank).
| 10 | | (b-1) Amount and duration of maintenance. If the court | 11 | | determines that a maintenance award is appropriate, the court | 12 | | shall order maintenance in accordance with either paragraph (1) | 13 | | or (2) of this subsection (b-1): | 14 | | (1) Maintenance award in accordance with guidelines. | 15 | | In situations when the combined gross income of the parties | 16 | | is less than $250,000 and the payor has no obligation to | 17 | | pay child support or maintenance or both from a prior | 18 | | relationship, maintenance payable after the date the | 19 | | parties' marriage is dissolved shall be in accordance with | 20 | | subparagraphs (A) and (B) of this paragraph (1), unless the | 21 | | court makes a finding that the application of the | 22 | | guidelines would be inappropriate. | 23 | | (A) The amount of maintenance under this paragraph | 24 | | (1) shall be calculated by taking 30% of the payor's | 25 | | gross income minus 20% of the payee's gross income. The
| 26 | | amount calculated as maintenance, however, when added |
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| 1 | | to the gross income of the payee, may not result in the | 2 | | payee receiving an amount that is in excess of 40% of | 3 | | the combined gross income
of the parties. | 4 | | (B) The duration of an award under this paragraph | 5 | | (1) shall be calculated by multiplying the length of | 6 | | the marriage at the time the action was commenced by | 7 | | whichever of
the following factors applies: 5 years or | 8 | | less (.20); more than 5 years but less than 10 years | 9 | | (.40); 10 years or more but less than 15
years (.60); | 10 | | or 15 years or more but less than 20 years (.80). For a | 11 | | marriage of 20 or more years, the court, in its | 12 | | discretion, shall order either permanent maintenance | 13 | | or maintenance for a period equal to the length of the
| 14 | | marriage. | 15 | | (2) Maintenance award not in accordance with | 16 | | guidelines. Any non-guidelines award of maintenance shall | 17 | | be made after the court's consideration of all relevant | 18 | | factors set forth in subsection (a) of this Section. | 19 | | (b-2) Findings. In each case involving the issue of | 20 | | maintenance, the court shall make specific findings of fact, as | 21 | | follows: | 22 | | (1) the court shall state its reasoning for awarding or | 23 | | not awarding maintenance and shall include references to | 24 | | each relevant factor set forth in subsection (a) of this | 25 | | Section; and | 26 | | (2) if the court deviates from otherwise applicable |
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| 1 | | guidelines under paragraph (1) of subsection (b-1), it | 2 | | shall state in its findings the amount of maintenance (if | 3 | | determinable) or duration that would have been required | 4 | | under the guidelines and the reasoning for any variance | 5 | | from the guidelines. | 6 | | (b-3) Gross income. For purposes of this Section, the term | 7 | | "gross income" means all income from all sources, within the | 8 | | scope of that phrase in Section 505 of this Act. | 9 | | (b-4) Unallocated maintenance. Unless the parties | 10 | | otherwise agree, the court may not order unallocated | 11 | | maintenance and child support in any dissolution judgment or in | 12 | | any post-dissolution order. In its discretion, the court may | 13 | | order unallocated maintenance and child support in any | 14 | | pre-dissolution temporary order. | 15 | | (b-4.5) Fixed-term maintenance in marriages of less than 10 | 16 | | years. If a court grants maintenance for a fixed period under | 17 | | subsection (a) of this Section at the conclusion of a case | 18 | | commenced before the tenth anniversary of the marriage, the | 19 | | court may also designate the termination of the period during | 20 | | which this maintenance is to be paid as a "permanent | 21 | | termination". The effect of this designation is that | 22 | | maintenance is barred after the ending date of the period | 23 | | during which maintenance is to be paid. | 24 | | (b-5) Interest on maintenance. Any maintenance obligation | 25 | | including any unallocated maintenance and child support | 26 | | obligation, or any portion of any support obligation, that |
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| 1 | | becomes due and remains unpaid shall accrue simple interest as | 2 | | set forth in Section 505 of this Act.
| 3 | | (b-7) Maintenance judgments. Any new or existing | 4 | | maintenance order including any unallocated maintenance and | 5 | | child support order entered by the court under this Section | 6 | | shall be deemed to be a series of judgments against the person | 7 | | obligated to pay support thereunder. Each such judgment to be | 8 | | in the amount of each payment or installment of support and | 9 | | each such judgment to be deemed entered as of the date the | 10 | | corresponding payment or installment becomes due under the | 11 | | terms of the support order, except no judgment shall arise as | 12 | | to any installment coming due after the termination of | 13 | | maintenance as provided by Section 510 of the Illinois Marriage | 14 | | and Dissolution of Marriage Act or the provisions of any order | 15 | | for maintenance. Each such judgment shall have the full force, | 16 | | effect and attributes of any other judgment of this State, | 17 | | including the ability to be enforced. Notwithstanding any other | 18 | | State or local law to the contrary, a lien arises by operation | 19 | | of law against the real and personal property of the obligor | 20 | | for each installment of overdue support owed by the obligor. | 21 | | (b-8) Upon review of any previously ordered maintenance | 22 | | award, the court may extend maintenance for further review, | 23 | | extend maintenance for a fixed non-modifiable term, extend | 24 | | maintenance for an indefinite term, or permanently terminate | 25 | | maintenance in accordance with subdivision (b-1)(1)(A) of this | 26 | | Section. |
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| 1 | | (c) Maintenance during an appeal. The court may grant and | 2 | | enforce the payment of maintenance during
the pendency of an | 3 | | appeal as the court shall deem reasonable and proper.
| 4 | | (d) Maintenance during imprisonment. No maintenance shall | 5 | | accrue during the period in which a party is
imprisoned for | 6 | | failure to comply with the court's order for the payment of
| 7 | | such maintenance.
| 8 | | (e) Fees when maintenance is paid through the clerk. When | 9 | | maintenance is to be paid through the clerk of the court in a
| 10 | | county of 1,000,000 inhabitants or less, the order shall direct | 11 | | the obligor
to pay to the clerk, in addition to the maintenance | 12 | | payments, all fees
imposed by the county board under paragraph | 13 | | (3) of subsection (u) of
Section 27.1 of the Clerks of Courts | 14 | | Act. Unless paid in cash or pursuant
to an order for | 15 | | withholding, the payment of the fee shall be by a separate
| 16 | | instrument from the support payment and shall be made to the | 17 | | order of
the Clerk.
| 18 | | (f) Maintenance secured by life insurance. An award ordered | 19 | | by a court upon entry of a dissolution judgment or upon entry | 20 | | of an award of maintenance following a reservation of | 21 | | maintenance in a dissolution judgment may be reasonably | 22 | | secured, in whole or in part, by life insurance on the
payor's | 23 | | life on terms as to which the parties agree, or, if they do not | 24 | | agree, on such terms determined by the court,
subject to the | 25 | | following: | 26 | | (1) With respect to existing life insurance, provided |
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| 1 | | the court is apprised through evidence,
stipulation, or | 2 | | otherwise as to level of death benefits, premium, and other | 3 | | relevant
data and makes findings relative thereto, the | 4 | | court may allocate death benefits, the right
to assign | 5 | | death benefits, or the obligation for future premium | 6 | | payments between the
parties as it deems just. | 7 | | (2) To the extent the court determines that its award | 8 | | should be secured, in whole or in part,
by new life | 9 | | insurance on the payor's life, the court may only order: | 10 | | (i) that the payor cooperate on all appropriate | 11 | | steps for the payee to obtain
such new life insurance; | 12 | | and | 13 | | (ii) that the payee, at his or her sole option and | 14 | | expense, may obtain such new life
insurance on the | 15 | | payor's life up to a maximum level of death benefit | 16 | | coverage,
or descending death benefit coverage, as is | 17 | | set by the court, such level not to exceed a reasonable
| 18 | | amount in light of the court's award, with the payee or | 19 | | the
payee's designee being the beneficiary of such life | 20 | | insurance. | 21 | | In determining the maximum level of death benefit coverage, | 22 | | the court shall take into account all relevant facts and | 23 | | circumstances, including the impact on access to life | 24 | | insurance by the maintenance payor. If in resolving any | 25 | | issues under paragraph (2) of this subsection (f) a court | 26 | | reviews any submitted or proposed application for new |
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| 1 | | insurance on the life of a maintenance payor, the review | 2 | | shall be in camera. | 3 | | (3) A judgment shall expressly set forth that all death | 4 | | benefits paid under life insurance on
a payor's life | 5 | | maintained or obtained pursuant to this subsection to | 6 | | secure
maintenance are designated as excludable from the | 7 | | gross income of the
maintenance payee under Section | 8 | | 71(b)(1)(B) of the Internal Revenue Code, unless an
| 9 | | agreement or stipulation of the parties otherwise | 10 | | provides. | 11 | | (g) Federal veterans' benefits. Notwithstanding any other | 12 | | provision of law, federal veterans' disability benefits | 13 | | received by a party shall not be considered to be income of | 14 | | that party for purposes of any maintenance determination under | 15 | | this Section. The court may not require that a party use | 16 | | federal veterans' disability benefits to pay maintenance. | 17 | | (Source: P.A. 98-961, eff. 1-1-15; 99-90, eff. 1-1-16; 99-763, | 18 | | eff. 1-1-17 .)
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