Full Text of SB3550 097th General Assembly
SB3550 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB3550 Introduced 2/8/2012, by Sen. Kirk W. Dillard SYNOPSIS AS INTRODUCED: |
| 750 ILCS 5/505 | from Ch. 40, par. 505 |
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Amends the Illinois Marriage and Dissolution of Marriage Act. In provisions concerning child support, provides that in a case in which (i) a parent is 90 days or more
delinquent in payment of support or has been adjudicated in arrears in an
amount equal to 90 days obligation or more and (ii) the parent is self-employed, the court may order the parent to pay to the clerk of the circuit
court an amount equal to up to 180 days support obligation. Provides that the clerk shall hold that amount as security and shall pay to the obligee amounts therefrom as they become due.
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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 505 as follows:
| 6 | | (750 ILCS 5/505) (from Ch. 40, par. 505)
| 7 | | Sec. 505. Child support; contempt; penalties.
| 8 | | (a) In a proceeding for dissolution of marriage, legal | 9 | | separation,
declaration of invalidity of marriage, a | 10 | | proceeding for child support
following dissolution of the | 11 | | marriage by a court which lacked personal
jurisdiction over the | 12 | | absent spouse, a proceeding for modification of a
previous | 13 | | order for child support under Section 510 of this Act, or any
| 14 | | proceeding authorized under Section 501 or 601 of this Act, the | 15 | | court may
order either or both parents owing a duty of support | 16 | | to a child of the
marriage to pay an amount reasonable and | 17 | | necessary for his support, without
regard to marital | 18 | | misconduct. The duty of support owed to a child
includes the | 19 | | obligation to provide for the reasonable and necessary
| 20 | | physical, mental and emotional health needs of the child.
For | 21 | | purposes of this Section, the term "child" shall include any | 22 | | child under
age 18 and
any child under age 19 who is still | 23 | | attending high school.
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| 1 | | (1) The Court shall determine the minimum amount of | 2 | | support by using the
following guidelines:
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3 | | Number of Children |
Percent of Supporting Party's |
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4 | | |
Net Income |
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5 | | 1 |
20% |
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6 | | 2 |
28% |
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7 | | 3 |
32% |
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8 | | 4 |
40% |
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9 | | 5 |
45% |
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10 | | 6 or more |
50% |
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11 | | (2) The above guidelines shall be applied in each case | 12 | | unless the court
makes a finding that application of the | 13 | | guidelines would be
inappropriate, after considering the | 14 | | best interests of the child in light of
evidence including | 15 | | but not limited to one or more of the following relevant
| 16 | | factors:
| 17 | | (a) the financial resources and needs of the child;
| 18 | | (b) the financial resources and needs of the | 19 | | custodial parent;
| 20 | | (c) the standard of living the child would have | 21 | | enjoyed had the
marriage not been dissolved;
| 22 | | (d) the physical and emotional condition of the | 23 | | child, and his
educational needs; and
| 24 | | (e) the financial resources and needs of the | 25 | | non-custodial parent.
| 26 | | If the court deviates from the guidelines, the court's |
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| 1 | | finding
shall state the amount of support that would have | 2 | | been required under the
guidelines, if determinable. The | 3 | | court shall include the reason or reasons for
the variance | 4 | | from the
guidelines.
| 5 | | (3) "Net income" is defined as the total of all income | 6 | | from all
sources, minus the following deductions:
| 7 | | (a) Federal income tax (properly calculated | 8 | | withholding or estimated
payments);
| 9 | | (b) State income tax (properly calculated | 10 | | withholding or estimated
payments);
| 11 | | (c) Social Security (FICA payments);
| 12 | | (d) Mandatory retirement contributions required by | 13 | | law or as a
condition of employment;
| 14 | | (e) Union dues;
| 15 | | (f) Dependent and individual | 16 | | health/hospitalization insurance premiums and life | 17 | | insurance premiums for life insurance ordered by the | 18 | | court to reasonably secure child support or support | 19 | | ordered pursuant to Section 513, any such order to | 20 | | entail provisions on which the parties agree or, | 21 | | otherwise, in accordance with the limitations set | 22 | | forth in subsection 504(f)(1) and (2);
| 23 | | (g) Prior obligations of support or maintenance | 24 | | actually paid pursuant
to a court order;
| 25 | | (h) Expenditures for repayment of debts that | 26 | | represent reasonable and
necessary expenses for the |
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| 1 | | production of income, medical expenditures
necessary | 2 | | to preserve life or health, reasonable expenditures | 3 | | for the
benefit of the child and the other parent, | 4 | | exclusive of gifts. The court
shall reduce net income | 5 | | in determining the minimum amount of support to be
| 6 | | ordered only for the period that such payments are due | 7 | | and shall enter an
order containing provisions for its | 8 | | self-executing modification upon
termination of such | 9 | | payment period;
| 10 | | (i) Foster care payments paid by the Department of | 11 | | Children and Family Services for providing licensed | 12 | | foster care to a foster child.
| 13 | | (4) In cases where the court order provides for
| 14 | | health/hospitalization insurance coverage pursuant to | 15 | | Section 505.2 of
this Act, the premiums for that insurance, | 16 | | or that portion of the premiums
for which the supporting | 17 | | party is responsible in the case of insurance
provided | 18 | | through an employer's health insurance plan where
the | 19 | | employer pays a portion of the premiums, shall be | 20 | | subtracted
from net income in determining the minimum | 21 | | amount of support to be ordered.
| 22 | | (4.5) In a proceeding for child support following | 23 | | dissolution of the
marriage by a court that lacked personal | 24 | | jurisdiction over the absent spouse,
and in which the court | 25 | | is requiring payment of support for the period before
the | 26 | | date an order for current support is entered, there is a |
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| 1 | | rebuttable
presumption
that the supporting party's net | 2 | | income for the prior period was the same as his
or her net | 3 | | income at the time the order for current support is | 4 | | entered.
| 5 | | (5) If the net income cannot be determined because of | 6 | | default or any
other reason, the court shall order support | 7 | | in an amount considered
reasonable in the particular case. | 8 | | The final order in all cases shall
state the support level | 9 | | in dollar amounts.
However, if the
court finds that the | 10 | | child support amount cannot be expressed exclusively as a
| 11 | | dollar amount because all or a portion of the payor's net | 12 | | income is uncertain
as to source, time of payment, or | 13 | | amount, the court may order a percentage
amount of support | 14 | | in addition to a specific dollar amount and enter
such | 15 | | other orders as may be necessary to determine and enforce, | 16 | | on a timely
basis, the applicable support ordered.
| 17 | | (6) If (i) the non-custodial parent was properly served | 18 | | with a request
for
discovery of financial information | 19 | | relating to the non-custodial parent's
ability to
provide | 20 | | child support, (ii) the non-custodial parent failed to | 21 | | comply with the
request,
despite having been ordered to do | 22 | | so by the court, and (iii) the non-custodial
parent is not | 23 | | present at the hearing to determine support despite having
| 24 | | received
proper notice, then any relevant financial | 25 | | information concerning the
non-custodial parent's ability | 26 | | to provide child support that was obtained
pursuant to
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| 1 | | subpoena and proper notice shall be admitted into evidence | 2 | | without the need to
establish any further foundation for | 3 | | its admission.
| 4 | | (a-5) In an action to enforce an order for support based on | 5 | | the
respondent's failure
to make support payments as required | 6 | | by the order, notice of proceedings to
hold the respondent in | 7 | | contempt for that failure may be served on the
respondent by | 8 | | personal service or by regular mail addressed to the | 9 | | respondent's
last known address. The respondent's last known | 10 | | address may be determined from
records of the clerk of the | 11 | | court, from the Federal Case Registry of Child
Support Orders, | 12 | | or by any other reasonable means.
| 13 | | (b) Failure of either parent to comply with an order to pay | 14 | | support shall
be punishable as in other cases of contempt. In | 15 | | addition to other
penalties provided by law the Court may, | 16 | | after finding the parent guilty
of contempt, order that the | 17 | | parent be:
| 18 | | (1) placed on probation with such conditions of | 19 | | probation as the Court
deems advisable;
| 20 | | (2) sentenced to periodic imprisonment for a period not | 21 | | to exceed 6
months; provided, however, that the Court may | 22 | | permit the parent to be
released for periods of time during | 23 | | the day or night to:
| 24 | | (A) work; or
| 25 | | (B) conduct a business or other self-employed | 26 | | occupation.
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| 1 | | The Court may further order any part or all of the earnings | 2 | | of a parent
during a sentence of periodic imprisonment paid to | 3 | | the Clerk of the Circuit
Court or to the parent having custody | 4 | | or to the guardian having custody
of the children of the | 5 | | sentenced parent for the support of said
children until further | 6 | | order of the Court.
| 7 | | If there is a unity of interest and ownership sufficient to | 8 | | render no
financial separation between a non-custodial parent | 9 | | and another person or
persons or business entity, the court may | 10 | | pierce the ownership veil of the
person, persons, or business | 11 | | entity to discover assets of the non-custodial
parent held in | 12 | | the name of that person, those persons, or that business | 13 | | entity.
The following circumstances are sufficient to | 14 | | authorize a court to order
discovery of the assets of a person, | 15 | | persons, or business entity and to compel
the application of | 16 | | any discovered assets toward payment on the judgment for
| 17 | | support:
| 18 | | (1) the non-custodial parent and the person, persons, | 19 | | or business entity
maintain records together.
| 20 | | (2) the non-custodial parent and the person, persons, | 21 | | or business entity
fail to maintain an arms length | 22 | | relationship between themselves with regard to
any assets.
| 23 | | (3) the non-custodial parent transfers assets to the | 24 | | person, persons,
or business entity with the intent to | 25 | | perpetrate a fraud on the custodial
parent.
| 26 | | With respect to assets which
are real property, no order |
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| 1 | | entered under this paragraph shall affect the
rights of bona | 2 | | fide purchasers, mortgagees, judgment creditors, or other lien
| 3 | | holders who acquire their interests in the property prior to | 4 | | the time a notice
of lis pendens pursuant to the Code of Civil | 5 | | Procedure or a copy of the order
is placed of record in the | 6 | | office of the recorder of deeds for the county in
which the | 7 | | real property is located.
| 8 | | In a case in which (i) a parent is 90 days or more
| 9 | | delinquent in payment of support or has been adjudicated in | 10 | | arrears in an
amount equal to 90 days obligation or more and | 11 | | (ii) the parent is self-employed, the court may order the | 12 | | parent to pay to the clerk of the circuit
court an amount equal | 13 | | to up to 180 days support obligation. The clerk shall hold that | 14 | | amount as security and shall pay to the obligee amounts | 15 | | therefrom as they become due. | 16 | | The court may also order in cases where the parent is 90 | 17 | | days or more
delinquent in payment of support or has been | 18 | | adjudicated in arrears in an
amount equal to 90 days obligation | 19 | | or more, that the parent's Illinois driving
privileges be | 20 | | suspended until the court
determines that the parent is in | 21 | | compliance with the order of support.
The court may also order | 22 | | that the parent be issued a family financial
responsibility | 23 | | driving permit that would allow limited driving privileges for
| 24 | | employment and medical purposes in accordance with Section | 25 | | 7-702.1 of the
Illinois Vehicle Code. The clerk of the circuit | 26 | | court shall certify the order
suspending the driving privileges |
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| 1 | | of the parent or granting the issuance of a
family financial | 2 | | responsibility driving permit to the Secretary of State on
| 3 | | forms prescribed by the Secretary. Upon receipt of the | 4 | | authenticated
documents, the Secretary of State shall suspend | 5 | | the parent's driving privileges
until further order of the | 6 | | court and shall, if ordered by the court, subject to
the | 7 | | provisions of Section 7-702.1 of the Illinois Vehicle Code, | 8 | | issue a family
financial responsibility driving permit to the | 9 | | parent.
| 10 | | In addition to the penalties or punishment that may be | 11 | | imposed under this
Section, any person whose conduct | 12 | | constitutes a violation of Section 15 of the
Non-Support | 13 | | Punishment Act may be prosecuted under that Act, and a person
| 14 | | convicted under that Act may be sentenced in accordance with | 15 | | that Act. The
sentence may include but need not be limited to a | 16 | | requirement that the person
perform community service under | 17 | | Section 50 of that Act or participate in a work
alternative | 18 | | program under Section 50 of that Act. A person may not be | 19 | | required
to participate in a work alternative program under | 20 | | Section 50 of that Act if
the person is currently participating | 21 | | in a work program pursuant to Section
505.1 of this Act.
| 22 | | A support obligation, or any portion of a support | 23 | | obligation, which becomes
due and remains unpaid as of the end | 24 | | of each month, excluding the child support that was due for | 25 | | that month to the extent that it was not paid in that month, | 26 | | shall accrue simple interest as set forth in Section 12-109 of |
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| 1 | | the Code of Civil Procedure.
An order for support entered or | 2 | | modified on or after January 1, 2006 shall
contain a statement | 3 | | that a support obligation required under the order, or any
| 4 | | portion of a support obligation required under the order, that | 5 | | becomes due and
remains unpaid as of the end of each month, | 6 | | excluding the child support that was due for that month to the | 7 | | extent that it was not paid in that month, shall accrue simple | 8 | | interest as set forth in Section 12-109 of the Code of Civil | 9 | | Procedure. Failure to include the statement in the order for | 10 | | support does
not affect the validity of the order or the | 11 | | accrual of interest as provided in
this Section.
| 12 | | (c) A one-time charge of 20% is imposable upon the amount | 13 | | of
past-due child support owed on July 1, 1988 which has | 14 | | accrued under a
support order entered by the court. The charge | 15 | | shall be imposed in
accordance with the provisions of Section | 16 | | 10-21 of the Illinois Public Aid
Code and shall be enforced by | 17 | | the court upon petition.
| 18 | | (d) Any new or existing support order entered by the court
| 19 | | under this Section shall be deemed to be a series of judgments | 20 | | against the
person obligated to pay support thereunder, each | 21 | | such judgment to be in the
amount of each payment or | 22 | | installment of support and each such judgment to
be deemed | 23 | | entered as of the date the corresponding payment or installment
| 24 | | becomes due under the terms of the support order. Each such | 25 | | judgment shall
have the full force, effect and attributes of | 26 | | any other judgment of this
State, including the ability to be |
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| 1 | | enforced.
Notwithstanding any other State or local law to the | 2 | | contrary, a lien arises by operation of law against the real | 3 | | and personal property of
the noncustodial parent for each | 4 | | installment of overdue support owed by the
noncustodial parent.
| 5 | | (e) When child support is to be paid through the clerk of | 6 | | the court in a
county of 1,000,000 inhabitants or less, the | 7 | | order shall direct the obligor
to pay to the clerk, in addition | 8 | | to the child support payments, all fees
imposed by the county | 9 | | board under paragraph (3) of subsection (u) of
Section 27.1 of | 10 | | the Clerks of Courts Act. Unless paid in cash or pursuant to
an | 11 | | order for withholding, the payment of the fee shall be by a | 12 | | separate
instrument from the support payment and shall be made | 13 | | to the order of the
Clerk.
| 14 | | (f) All orders for support, when entered or
modified, shall | 15 | | include a provision requiring the obligor to notify
the court | 16 | | and, in cases in which a party is receiving child and spouse
| 17 | | services under Article X of the Illinois Public Aid Code, the
| 18 | | Department of Healthcare and Family Services, within 7 days, | 19 | | (i) of the name and address
of any new employer of the obligor, | 20 | | (ii) whether the obligor has access to
health insurance | 21 | | coverage through the employer or other group coverage and,
if | 22 | | so, the policy name and number and the names of persons covered | 23 | | under
the policy, and (iii) of any new residential or mailing | 24 | | address or telephone
number of the non-custodial parent. In any | 25 | | subsequent action to enforce a
support order, upon a sufficient | 26 | | showing that a diligent effort has been made
to ascertain the |
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| 1 | | location of the non-custodial parent, service of process or
| 2 | | provision of notice necessary in the case may be made at the | 3 | | last known
address of the non-custodial parent in any manner | 4 | | expressly provided by the
Code of Civil Procedure or this Act, | 5 | | which service shall be sufficient for
purposes of due process.
| 6 | | (g) An order for support shall include a date on which the | 7 | | current
support obligation terminates. The termination date | 8 | | shall be no earlier than
the date on which the child covered by | 9 | | the order will attain the age of
18. However, if the child will | 10 | | not graduate from high school until after
attaining the age of | 11 | | 18, then the termination date shall be no earlier than the
| 12 | | earlier of the date on which the child's high school graduation | 13 | | will occur or
the date on which the child will attain the age | 14 | | of 19. The order for support
shall state that the termination | 15 | | date does not apply to any arrearage that may
remain unpaid on | 16 | | that date. Nothing in this subsection shall be construed to
| 17 | | prevent the court from modifying the order or terminating the | 18 | | order in the
event the child is otherwise emancipated.
| 19 | | (g-5) If there is an unpaid arrearage or delinquency (as | 20 | | those terms are defined in the Income Withholding for Support | 21 | | Act) equal to at least one month's support obligation on the | 22 | | termination date stated in the order for support or, if there | 23 | | is no termination date stated in the order, on the date the | 24 | | child attains the age of majority or is otherwise emancipated, | 25 | | the periodic amount required to be paid for current support of | 26 | | that child immediately prior to that date shall automatically |
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| 1 | | continue to be an obligation, not as current support but as | 2 | | periodic payment toward satisfaction of the unpaid arrearage or | 3 | | delinquency. That periodic payment shall be in addition to any | 4 | | periodic payment previously required for satisfaction of the | 5 | | arrearage or delinquency. The total periodic amount to be paid | 6 | | toward satisfaction of the arrearage or delinquency may be | 7 | | enforced and collected by any method provided by law for | 8 | | enforcement and collection of child support, including but not | 9 | | limited to income withholding under the Income Withholding for | 10 | | Support Act. Each order for support entered or modified on or | 11 | | after the effective date of this amendatory Act of the 93rd | 12 | | General Assembly must contain a statement notifying the parties | 13 | | of the requirements of this subsection. Failure to include the | 14 | | statement in the order for support does not affect the validity | 15 | | of the order or the operation of the provisions of this | 16 | | subsection with regard to the order. This subsection shall not | 17 | | be construed to prevent or affect the establishment or | 18 | | modification of an order for support of a minor child or the | 19 | | establishment or modification of an order for support of a | 20 | | non-minor child or educational expenses under Section 513 of | 21 | | this Act.
| 22 | | (h) An order entered under this Section shall include a | 23 | | provision requiring
the obligor to report to the obligee and to | 24 | | the clerk of court within 10 days
each time the obligor obtains | 25 | | new employment, and each time the obligor's
employment is | 26 | | terminated for any reason. The report shall be in writing and
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| 1 | | shall, in the case of new employment, include the name and | 2 | | address of the new
employer. Failure to report new employment | 3 | | or the termination of current
employment, if coupled with | 4 | | nonpayment of support for a period in excess of 60
days, is | 5 | | indirect criminal contempt. For any obligor arrested for | 6 | | failure to
report new employment bond shall be set in the | 7 | | amount of the child support that
should have been paid during | 8 | | the period of unreported employment. An order
entered under | 9 | | this Section shall also include a provision requiring the | 10 | | obligor
and obligee parents to advise each other of a change in | 11 | | residence within 5 days
of the change except when the court | 12 | | finds that the physical, mental, or
emotional health of a party | 13 | | or that of a child, or both, would be
seriously endangered by | 14 | | disclosure of the party's address.
| 15 | | (i) The court does not lose the powers of contempt, | 16 | | driver's license
suspension, or other child support | 17 | | enforcement mechanisms, including, but
not limited to, | 18 | | criminal prosecution as set forth in this Act, upon the
| 19 | | emancipation of the minor child or children.
| 20 | | (Source: P.A. 96-1134, eff. 7-21-10; 97-186, eff. 7-22-11; | 21 | | 97-608, eff. 1-1-12; revised 10-4-11.)
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