(750 ILCS 5/501) (from Ch. 40, par. 501)
Sec. 501. Temporary relief. In all proceedings under this Act,
temporary relief shall be as follows:
(a) Either party may petition or move for:
(1) temporary maintenance or temporary support of a |
| child of the marriage entitled to support, accompanied by an affidavit as to the factual basis for the relief requested. One form of financial affidavit, as determined by the Supreme Court, shall be used statewide. The financial affidavit shall be supported by documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements. Unless the court otherwise directs, any affidavit or supporting documentary evidence submitted pursuant to this paragraph shall not be made part of the public record of the proceedings but shall be available to the court or an appellate court in which the proceedings are subject to review, to the parties, their attorneys, and such other persons as the court may direct. Upon motion of a party, a court may hold a hearing to determine whether and why there is a disparity between a party's sworn affidavit and the supporting documentation. If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court shall impose significant penalties and sanctions including, but not limited to, costs and attorney's fees;
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(2) a temporary restraining order or preliminary
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| injunction, accompanied by affidavit showing a factual basis for any of the following relief:
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(i) restraining any person from transferring,
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| encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued; however, an order need not include an exception for transferring, encumbering, or otherwise disposing of property in the usual course of business or for the necessities of life if the court enters appropriate orders that enable the parties to pay their necessary personal and business expenses including, but not limited to, appropriate professionals to assist the court pursuant to subsection (l) of Section 503 to administer the payment and accounting of such living and business expenses;
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(ii) enjoining a party from removing a child from
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| the jurisdiction of the court for more than 14 days;
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(iii) enjoining a party from striking or
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| interfering with the personal liberty of the other party or of any child; or
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(iv) providing other injunctive relief proper in
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(3) other appropriate temporary relief including, in
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| the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.
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Issues concerning temporary maintenance or temporary support of a child entitled to support shall be dealt with on a summary basis based on allocated parenting time, financial affidavits, tax returns, pay stubs, banking statements, and other
relevant documentation, except an evidentiary hearing may be held upon a showing of good cause. If a party intentionally or recklessly files an inaccurate or misleading financial affidavit, the court shall impose significant penalties and sanctions including, but not limited to, costs and attorney's fees resulting from the improper representation.
(b) The court may issue a temporary restraining order without
requiring notice to the other party only if it finds, on the basis of
the moving affidavit or other evidence, that irreparable injury will
result to the moving party if no order is issued until the time for
responding has elapsed.
(c) A response hereunder may be filed within 21 days after service
of notice of motion or at the time specified in the temporary
restraining order.
(c-1) As used in this subsection (c-1), "interim attorney's fees and
costs" means attorney's fees and costs, including an allowance from the other party for a retainer fee to obtain an attorney,
assessed
from time to time while a case is pending, in favor of the petitioning party's
current counsel, for reasonable fees and costs either already incurred or to be
incurred, and "interim award" means an award of interim attorney's fees and
costs, including an allowance from the other party for a retainer fee to obtain an attorney. Interim awards shall be governed by the following:
(1) Except for good cause shown, a proceeding for (or
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| relating to) interim attorney's fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature. All hearings for or relating to interim attorney's fees and costs under this subsection shall be scheduled expeditiously by the court. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. A responsive pleading shall include costs incurred, and shall indicate whether the costs are paid or unpaid. In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including to the extent applicable:
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(A) the income and property of each party,
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| including alleged marital property within the sole control of one party and alleged non-marital property within access to a party;
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(B) the needs of each party;
(C) the realistic earning capacity of each party;
(D) any impairment to present earning capacity of
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| either party, including age and physical and emotional health;
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(E) the standard of living established during the
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(F) the degree of complexity of the issues,
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| including allocation of parental responsibility, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses, or both;
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(G) each party's access to relevant information;
(H) the amount of the payment or payments made or
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| reasonably expected to be made to the attorney for the other party; and
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(I) any other factor that the court expressly
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| finds to be just and equitable.
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(1.5) A petition for interim fees that seeks an order
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| for the payment of an initial retainer to retain an attorney shall have attached to it an affidavit from the attorney to be retained that the attorney has been contacted by the moving party and the attorney has agreed to enter an appearance if the court grants the relief requested, together with a certificate from the moving party that the interim fees granted will only be used by the moving party to retain the attorney. Any interim fees granted pursuant to this paragraph shall be paid directly to the identified attorney.
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(2) Any assessment of an interim award (including one
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| pursuant to an agreed order) shall be without prejudice to any final allocation and without prejudice as to any claim or right of either party or any counsel of record at the time of the award. Any such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under subsection (j) of Section 503 or a hearing on counsel's fees under subsection (c) of Section 508. Unless otherwise ordered by the court at the final hearing between the parties or in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508, interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties' marital estate. Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs, after notice in a form designated by the Supreme Court. An order for the award of interim attorney's fees shall be a standardized form order and labeled "Interim Fee Award Order".
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(3) In any proceeding under this subsection (c-1),
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| the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties.
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(4) The changes to this Section 501 made by this
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| amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.
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(c-2) Allocation of use of marital residence. Where
there is on file a verified complaint or verified petition seeking
temporary eviction from the marital residence, the court may, during the
pendency of the proceeding, only in cases where the physical or mental well-being of either spouse or
his or her children is jeopardized by occupancy of the marital residence by both
spouses, and only upon due notice and full hearing, unless waived by the
court on good cause shown, enter orders granting the exclusive possession of the marital residence to either spouse,
by eviction from, or restoration of, the marital residence, until the final
determination of the cause pursuant to the factors listed in Section 602.7 of this Act. No such order shall in any manner affect any
estate in homestead property of either party. In entering orders under this subsection (c-2), the court shall balance hardships to the parties.
(d) A temporary order entered under this Section:
(1) does not prejudice the rights of the parties or
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| the child which are to be adjudicated at subsequent hearings in the proceeding;
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(2) may be revoked or modified before final judgment,
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| on a showing by affidavit and upon hearing; and
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(3) terminates when the final judgment is entered or
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| when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.
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(e) The fees or costs of mediation shall
be borne by the parties and may be assessed by the court as it deems equitable without prejudice and are subject to reallocation at the conclusion of the case.
(f) Companion animals. Either party may petition or move for the temporary allocation of sole or joint possession of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal. As used in this Section, "companion animal" does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.
(Source: P.A. 102-480, eff. 1-1-22.)
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(750 ILCS 5/503) (from Ch. 40, par. 503)
Sec. 503. Disposition of property and debts.
(a) For purposes of this Act, "marital property" means all property, including debts and other obligations, acquired
by either spouse subsequent to the marriage, except the following, which is
known as "non-marital property":
(1) property acquired by gift, legacy or descent or |
| property acquired in exchange for such property;
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(2) property acquired in exchange for property
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| acquired before the marriage;
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(3) property acquired by a spouse after a judgment of
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(4) property excluded by valid agreement of the
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| parties, including a premarital agreement or a postnuptial agreement;
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(5) any judgment or property obtained by judgment
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| awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property;
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(6) property acquired before the marriage, except as
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| it relates to retirement plans that may have both marital and non-marital characteristics;
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(6.5) all property acquired by a spouse by the sole
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| use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;
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(7) the increase in value of non-marital property,
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| irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
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(8) income from property acquired by a method listed
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| in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
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Property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.
The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.
(b)(1) For purposes of distribution of property, all property acquired by either spouse after the marriage and before a
judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property. This presumption includes non-marital property transferred into some form of co-ownership
between the spouses, regardless of whether
title is held individually or by the spouses in some form of co-ownership such
as joint tenancy, tenancy in common, tenancy by the entirety, or community
property. The presumption of marital property is overcome by showing through clear and convincing evidence that
the property was acquired by a method listed in subsection (a) of this Section or was done for estate or tax planning purposes or for other reasons that establish that a transfer between spouses was not intended to be a gift.
(2) For purposes of distribution of property pursuant to this Section,
all pension benefits (including pension benefits under the Illinois Pension
Code, defined benefit plans, defined contribution plans and accounts, individual retirement accounts, and non-qualified plans) acquired by or participated in by either spouse after the marriage and before a judgment of
dissolution of marriage or legal separation or declaration of invalidity of the marriage are
presumed to be marital property. A spouse may overcome the presumption that these pension benefits are marital property
by showing through clear and convincing evidence that the pension benefits were acquired by a method
listed in subsection (a) of this Section. The right to a division of pension
benefits in just proportions under this Section is enforceable under Section
1-119 of the Illinois Pension Code.
The value of pension benefits in a retirement system subject to the Illinois
Pension Code shall be determined in accordance with the valuation procedures
established by the retirement system.
The recognition of pension benefits as marital property and the division of
those benefits pursuant to a Qualified Illinois Domestic Relations Order shall
not be deemed to be a diminishment, alienation, or impairment of those
benefits. The division of pension benefits is an allocation of property in
which each spouse has a species of common ownership.
(3) For purposes of distribution of property under this Section, all stock
options and restricted stock or similar form of benefit granted to either spouse after the marriage and before a judgment of
dissolution of marriage or legal separation or declaration of invalidity of marriage, whether
vested or non-vested or whether their value is ascertainable, are presumed to
be marital property. This presumption of marital property is overcome by a
showing that the stock options or restricted stock or similar form of benefit were acquired by a method listed in subsection
(a) of this Section. The court shall allocate stock options and restricted stock or similar form of benefit between the
parties at the time of the judgment of dissolution of marriage or declaration
of invalidity of marriage recognizing that the value of the stock options and restricted stock or similar form of benefit may
not be then determinable and that the actual division of the options may not
occur until a future date. In making the allocation between the parties, the
court shall consider, in addition to the factors set forth in subsection (d) of
this Section, the following:
(i) All circumstances underlying the grant of the
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| stock option and restricted stock or similar form of benefit including but not limited to the vesting schedule, whether the grant was for past, present, or future efforts, whether the grant is designed to promote future performance or employment, or any combination thereof.
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(ii) The length of time from the grant of the option
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| to the time the option is exercisable.
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(b-5)(1) As to any existing policy of life insurance insuring the life of either spouse, or any interest in such policy, that constitutes marital property, whether whole life, term life, group term life, universal life, or other form of life
insurance policy, and whether or not the value is ascertainable, the court shall allocate ownership, death benefits or the
right to assign death benefits, and the obligation for premium payments, if any, equitably between the parties at the
time of the judgment for dissolution or declaration of invalidity of marriage.
(2) If a judgment of dissolution of marriage is entered after an insured has designated the insured's spouse as a beneficiary under a life insurance policy in force at the time of entry, the designation of the insured's former spouse as beneficiary is not effective unless:
(A) the judgment designates the insured's former
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| spouse as the beneficiary;
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(B) the insured redesignates the former spouse as the
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| beneficiary after entry of the judgment; or
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(C) the former spouse is designated to receive the
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| proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.
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(3) If a designation is not effective under paragraph (2), the proceeds of the policy are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the estate of the insured.
(4) An insurer that pays the proceeds of a life insurance policy to the beneficiary under a designation that is not effective under paragraph (2) is liable for payment of the proceeds to the person or estate provided by paragraph (3) only if:
(A) before payment of the proceeds to the designated
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| beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under paragraph (2); and
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(B) the insurer has not filed an interpleader.
(5) The provisions in paragraphs (2), (3) and (4) of this subsection (b-5) do not apply to life insurance policies subject to regulation under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 100 et seq., the Federal Employee Group Life Insurance Act, 5 U.S.C. 8701 et seq., or any other federal law that preempts the application of those paragraphs.
(c) Commingled marital and non-marital property shall be treated in
the following manner, unless otherwise agreed by the spouses:
(1)(A) If marital and non-marital property are
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| commingled by one estate being contributed into the other, the following shall apply:
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(i) If the contributed property loses its
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| identity, the contributed property transmutes to the estate receiving the property, subject to the provisions of paragraph (2) of this subsection (c).
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(ii) If the contributed property retains its
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| identity, it does not transmute and remains property of the contributing estate.
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(B) If marital and non-marital property are
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| commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection (c).
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(2)(A) When one estate of property makes a
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| contribution to another estate of property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation. No such reimbursement shall be made with respect to a contribution that is not traceable by clear and convincing evidence or that was a gift. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property that received the contribution.
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(B) When a spouse contributes personal effort to
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| non-marital property, it shall be deemed a contribution from the marital estate, which shall receive reimbursement for the efforts if the efforts are significant and result in substantial appreciation to the non-marital property except that if the marital estate reasonably has been compensated for his or her efforts, it shall not be deemed a contribution to the marital estate and there shall be no reimbursement to the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.
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(d) In a proceeding for dissolution of marriage or declaration of invalidity
of marriage, or in a proceeding for disposition of property following
dissolution of marriage by a court that lacked personal jurisdiction over the
absent spouse or lacked jurisdiction to dispose of the property, the court
shall assign each spouse's non-marital property to that spouse. It also shall
divide the marital property without regard to marital misconduct in just
proportions considering all relevant factors, including:
(1) each party's contribution to the acquisition,
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| preservation, or increase or decrease in value of the marital or non-marital property, including (i) any decrease attributable to an advance from the parties' marital estate under subsection (c-1)(2) of Section 501; (ii) the contribution of a spouse as a homemaker or to the family unit; and (iii) whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage;
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(2) the dissipation by each party of the marital
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| property, provided that a party's claim of dissipation is subject to the following conditions:
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(i) a notice of intent to claim dissipation shall
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| be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;
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(ii) the notice of intent to claim dissipation
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| shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;
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(iii) a certificate or service of the notice of
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| intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules;
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(iv) no dissipation shall be deemed to have
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| occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage;
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(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each
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| spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;
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(6) any obligations and rights arising from a prior
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| marriage of either party;
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(7) any prenuptial or postnuptial agreement of the
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(8) the age, health, station, occupation, amount and
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| sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
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(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in
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(11) the reasonable opportunity of each spouse for
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| future acquisition of capital assets and income; and
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(12) the tax consequences of the property division
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| upon the respective economic circumstances of the parties.
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(e) Each spouse has a species of common ownership in the marital property
which vests at the time dissolution proceedings are commenced and continues
only during the pendency of the action. Any such interest in marital property
shall not encumber that property so as to restrict its transfer, assignment
or conveyance by the title holder unless such title holder is specifically
enjoined from making such transfer, assignment or conveyance.
(f) In a proceeding for dissolution of marriage or declaration of
invalidity of marriage or in a proceeding for disposition of property
following dissolution of marriage by a court that lacked personal
jurisdiction over the absent spouse or lacked jurisdiction to dispose of
the property, the court, in determining the value of the marital and
non-marital property for purposes of dividing the property, has the discretion to use the date of the trial or such other date as agreed upon by the parties, or ordered by the court within its discretion, for purposes of determining the value of assets or property.
(g) The court if necessary to protect and promote the best interests of the
children may set aside a portion of the jointly or separately held
estates of the parties in a separate fund or trust for the support,
maintenance, education, physical and mental health, and general welfare of any minor, dependent,
or incompetent child of the parties. In making a determination under this
subsection, the court may consider, among other things, the conviction of a
party of any of the offenses set forth in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.3,
12-13, 12-14, 12-14.1, 12-15, or 12-16, or Section 12-3.05 except for subdivision (a)(4) or (g)(1), of the Criminal Code of 1961 or the Criminal Code of 2012 if the
victim is a
child of one or both of the parties, and there is a need for, and cost of,
care, healing and counseling for the child who is the victim of the crime.
(h) Unless specifically directed by a reviewing court, or upon good
cause shown, the court shall not on remand consider any increase or
decrease in the value of any "marital" or "non-marital" property occurring
since the assessment of such property at the original trial or hearing, but
shall use only that assessment made at the original trial or hearing.
(i) The court may make such judgments affecting the marital property
as may be just and may enforce such judgments by ordering a sale of marital
property, with proceeds therefrom to be applied as determined by the court.
(j) After proofs have closed in the final hearing on all other issues
between the parties (or in conjunction with the final hearing, if all parties
so stipulate) and before judgment is entered, a party's petition for
contribution to fees and costs incurred in the proceeding shall be heard and
decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed before
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| the final hearing on other issues between the parties, shall be filed no later than 14 days after the closing of proofs in the final hearing or within such other period as the court orders.
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(2) Any award of contribution to one party from the
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| other party shall be based on the criteria for division of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance under Section 504.
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(3) The filing of a petition for contribution shall
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| not be deemed to constitute a waiver of the attorney-client privilege between the petitioning party and current or former counsel; and such a waiver shall not constitute a prerequisite to a hearing for contribution. If either party's presentation on contribution, however, includes evidence within the scope of the attorney-client privilege, the disclosure or disclosures shall be narrowly construed and shall not be deemed by the court to constitute a general waiver of the privilege as to matters beyond the scope of the presentation.
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(4) No finding on which a contribution award is based
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| or denied shall be asserted against counsel or former counsel for purposes of any hearing under subsection (c) or (e) of Section 508.
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(5) A contribution award (payable to either the
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| petitioning party or the party's counsel, or jointly, as the court determines) may be in the form of either a set dollar amount or a percentage of fees and costs (or a portion of fees and costs) to be subsequently agreed upon by the petitioning party and counsel or, alternatively, thereafter determined in a hearing pursuant to subsection (c) of Section 508 or previously or thereafter determined in an independent proceeding under subsection (e) of Section 508.
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(6) The changes to this Section 503 made by this
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| amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.
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(k) In determining the value of assets or property under this Section, the court shall employ a fair market value standard. The date of valuation for the purposes of division of assets shall be the date of trial or such other date as agreed by the parties or ordered by the court, within its discretion. If the court grants a petition brought under Section 2-1401 of the Code of Civil Procedure, then the court has the discretion to use the date of the trial or such other date as agreed upon by the parties, or ordered by the court within its discretion, for purposes of determining the value of assets or property.
(l) The court may seek the advice of financial experts or other professionals, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine as a witness any professional consulted by the court designated as the court's witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both. The court shall allocate the costs and fees of those professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate, and the allocation is subject to reallocation under subsection (a) of Section 508. Upon the request of any party or upon the court's own motion, the court may conduct a hearing as to the reasonableness of those fees and costs.
(m) The changes made to this Section by Public Act 97-941 apply only to petitions for dissolution of marriage filed on or after January 1, 2013 (the effective date of Public Act 97-941).
(n) If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal. As used in this Section, "companion animal" does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.
(Source: P.A. 99-78, eff. 7-20-15; 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-422, eff. 1-1-18; 100-871, eff. 1-1-19.)
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(750 ILCS 5/504) (from Ch. 40, par. 504)
Sec. 504. Maintenance.
(a) Entitlement to maintenance. In a proceeding for dissolution of marriage, legal separation,
declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for maintenance
following a legal separation or dissolution of the marriage or civil union by a court which lacked personal
jurisdiction over the absent spouse, a proceeding for modification of a previous order for maintenance under Section 510 of this Act, or any proceeding authorized under Section 501 of this Act, the court may grant a maintenance award for either spouse in amounts and for periods of
time as the court deems just, without regard to marital misconduct, and the maintenance may
be paid from the income or property of the other spouse. The court shall first make a finding as to whether a maintenance award is appropriate, after consideration
of all relevant factors, including:
(1) the income and property of each party, including |
| marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;
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(2) the needs of each party;
(3) the realistic present and future earning capacity
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(4) any impairment of the present and future earning
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| capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
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(5) any impairment of the realistic present or future
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| earning capacity of the party against whom maintenance is sought;
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(6) the time necessary to enable the party seeking
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| maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment;
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(6.1) the effect of any parental responsibility
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| arrangements and its effect on a party's ability to seek or maintain employment;
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(7) the standard of living established during the
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(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and
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| sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;
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(10) all sources of public and private income
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| including, without limitation, disability and retirement income;
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(11) the tax consequences to each party;
(12) contributions and services by the party seeking
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| maintenance to the education, training, career or career potential, or license of the other spouse;
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|
(13) any valid agreement of the parties; and
(14) any other factor that the court expressly finds
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| to be just and equitable.
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|
(b) (Blank).
(b-1) Amount and duration of maintenance. Unless the court finds that a maintenance award is appropriate, it shall bar maintenance as to the party seeking maintenance regardless of the length of the marriage at the time the action was commenced. Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance in accordance with paragraph (1) or non-guideline maintenance in accordance with paragraph (2) of this subsection (b-1). If the application of guideline maintenance results in a combined maintenance and child support obligation that exceeds 50% of the payor's net income, the court may determine non-guideline maintenance in accordance with paragraph (2) of this subsection (b-1), non-guideline child support in accordance with paragraph (3.4) of subsection (a) of Section 505, or both.
(1) Maintenance award in accordance with guidelines.
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| If the combined gross annual income of the parties is less than $500,000 and the payor has no obligation to pay child support or maintenance or both from a prior relationship, maintenance payable after the date the parties' marriage is dissolved shall be in accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court makes a finding that the application of the guidelines would be inappropriate.
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|
(A) The amount of maintenance under this
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| paragraph (1) shall be calculated by taking 33 1/3% of the payor's net annual income minus 25% of the payee's net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.
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|
(A-1) Modification of maintenance orders entered
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| before January 1, 2019 that are and continue to be eligible for inclusion in the gross income of the payee for federal income tax purposes and deductible by the payor shall be calculated by taking 30% of the payor's gross annual income minus 20% of the payee's gross annual income, unless both parties expressly provide otherwise in the modification order. The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is in excess of 40% of the combined gross income of the parties.
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|
(B) The duration of an award under this
|
| paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term.
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|
(1.5) In the discretion of the court, any term of
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| temporary maintenance paid by court order under Section 501 may be a corresponding credit to the duration of maintenance set forth in subparagraph (b-1)(1)(B).
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|
(2) Maintenance award not in accordance with
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| guidelines. Any non-guidelines award of maintenance shall be made after the court's consideration of all relevant factors set forth in subsection (a) of this Section.
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|
(b-2) Findings. In each case involving the issue of maintenance, the court shall make specific findings of fact, as follows:
(1) the court shall state its reasoning for awarding
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| or not awarding maintenance and shall include references to each relevant factor set forth in subsection (a) of this Section;
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|
(2) if the court deviates from applicable guidelines
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| under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and
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|
(3) the court shall state whether the maintenance is
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| fixed-term, indefinite, reviewable, or reserved by the court.
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|
(b-3) Gross income. For purposes of this Section, the term "gross income" means all income from all sources, within the scope of that phrase in Section 505 of this Act, except maintenance payments in the pending proceedings shall not be included.
(b-3.5) Net income. As used in this Section, "net income" has the meaning provided in Section 505 of this Act, except maintenance payments in the pending proceedings shall not be included.
(b-4) Modification of maintenance orders entered before January 1, 2019. For any order for maintenance or unallocated maintenance and child support entered before January 1, 2019 that is modified after December 31, 2018, payments thereunder shall continue to retain the same tax treatment for federal income tax purposes unless both parties expressly agree otherwise and the agreement is included in the modification order.
(b-4.5) Maintenance designation.
(1) Fixed-term maintenance. If a court grants
|
| maintenance for a fixed term, the court shall designate the termination of the period during which this maintenance is to be paid. Maintenance is barred after the end of the period during which fixed-term maintenance is to be paid.
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|
(2) Indefinite maintenance. If a court grants
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| maintenance for an indefinite term, the court shall not designate a termination date. Indefinite maintenance shall continue until modification or termination under Section 510.
|
|
(3) Reviewable maintenance. If a court grants
|
| maintenance for a specific term with a review, the court shall designate the period of the specific term and state that the maintenance is reviewable. Upon review, the court shall make a finding in accordance with subdivision (b-8) of this Section, unless the maintenance is modified or terminated under Section 510.
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|
(b-5) Interest on maintenance. Any maintenance obligation including any unallocated maintenance and child support obligation, or any portion of any support obligation, that becomes due and remains unpaid shall accrue simple interest as set forth in Section 505 of this Act.
(b-7) Maintenance judgments. Any new or existing maintenance order including any unallocated maintenance and child support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder. Each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order, except no judgment shall arise as to any installment coming due after the termination of maintenance as provided by Section 510 of the Illinois Marriage and Dissolution of Marriage Act or the provisions of any order for maintenance. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.
(b-8) Review of maintenance. Upon review of any previously ordered maintenance award, the court may extend maintenance for further review, extend maintenance for a fixed non-modifiable term, extend maintenance for an indefinite term, or permanently terminate maintenance in accordance with subdivision (b-1)(1)(A) of this Section.
(c) Maintenance during an appeal. The court may grant and enforce the payment of maintenance during
the pendency of an appeal as the court shall deem reasonable and proper.
(d) Maintenance during imprisonment. No maintenance shall accrue during the period in which a party is
imprisoned for failure to comply with the court's order for the payment of
such maintenance.
(e) Fees when maintenance is paid through the clerk. When maintenance is to be paid through the clerk of the court in a
county of 500,000 inhabitants or less, the order shall direct the obligor
to pay to the clerk, in addition to the maintenance payments, all fees
imposed by the county board under paragraph (4) of subsection (bb) of
Section 27.1a of the Clerks of Courts Act. When maintenance is to be paid through the clerk of the court in a
county of more than 500,000 but less than 3,000,000 inhabitants, the order shall direct the obligor
to pay to the clerk, in addition to the maintenance payments, all fees
imposed by the county board under paragraph (4) of subsection (bb) of
Section 27.2 of the Clerks of Courts Act. Unless paid in cash or pursuant
to an order for withholding, the payment of the fee shall be by a separate
instrument from the support payment and shall be made to the order of
the Clerk.
(f) Maintenance secured by life insurance. An award ordered by a court upon entry of a dissolution judgment or upon entry of an award of maintenance following a reservation of maintenance in a dissolution judgment may be reasonably secured, in whole or in part, by life insurance on the
payor's life on terms as to which the parties agree or, if the parties do not agree, on such terms determined by the court,
subject to the following:
(1) With respect to existing life insurance, provided
|
| the court is apprised through evidence, stipulation, or otherwise as to level of death benefits, premium, and other relevant data and makes findings relative thereto, the court may allocate death benefits, the right to assign death benefits, or the obligation for future premium payments between the parties as it deems just.
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|
(2) To the extent the court determines that its award
|
| should be secured, in whole or in part, by new life insurance on the payor's life, the court may only order:
|
|
(i) that the payor cooperate on all appropriate
|
| steps for the payee to obtain such new life insurance; and
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|
(ii) that the payee, at his or her sole option
|
| and expense, may obtain such new life insurance on the payor's life up to a maximum level of death benefit coverage, or descending death benefit coverage, as is set by the court, such level not to exceed a reasonable amount in light of the court's award, with the payee or the payee's designee being the beneficiary of such life insurance.
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|
In determining the maximum level of death benefit
|
| coverage, the court shall take into account all relevant facts and circumstances, including the impact on access to life insurance by the maintenance payor. If in resolving any issues under paragraph (2) of this subsection (f) a court reviews any submitted or proposed application for new insurance on the life of a maintenance payor, the review shall be in camera.
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|
(3) (Blank).
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-520, eff. 1-1-18 (see Section 5 of P.A. 100-565 for the effective date of P.A. 100-520); 100-923, eff. 1-1-19.)
|
(750 ILCS 5/505) (from Ch. 40, par. 505)
Sec. 505. Child support; contempt; penalties.
(a) In a proceeding for dissolution of marriage, legal separation,
declaration of invalidity of marriage, or dissolution of a civil union, a proceeding for child support
following a legal separation or dissolution of the marriage or civil union by a court that lacked personal
jurisdiction over the absent spouse, a proceeding for modification of a
previous order for child support under Section 510 of this Act, or any
proceeding authorized under Section 501 or 601 of this Act, the court may
order either or both parents owing a duty of support to a child of the
marriage or civil union to pay an amount reasonable and necessary for support. The duty of support owed to a child
includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child.
For purposes of this Section, the term "child" shall include any child under
age 18 and
any child age 19 or younger who is still attending high school. For purposes of this Section, the term "obligor" means the parent obligated to pay support to the other parent.
(1) Child support guidelines. The Illinois Department |
| of Healthcare and Family Services shall adopt rules establishing child support guidelines which include worksheets to aid in the calculation of the child support obligations and a schedule of basic child support obligations that reflects the percentage of combined net income that parents living in the same household in this State ordinarily spend on their child. The child support guidelines have the following purposes:
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|
(A) to establish as State policy an adequate
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| standard of support for a child, subject to the ability of parents to pay;
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|
(B) to make child support obligations more
|
| equitable by ensuring more consistent treatment of parents in similar circumstances;
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|
(C) to improve the efficiency of the court
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| process by promoting settlements and giving courts and the parties guidance in establishing levels of child support;
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|
(D) to calculate child support based upon the
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| parents' combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household;
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|
(E) to adjust child support based upon the needs
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|
(F) to allocate the amount of child support to be
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| paid by each parent based upon a parent's net income and the child's physical care arrangements.
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|
(1.5) Computation of basic child support obligation.
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| The court shall compute the basic child support obligation by taking the following steps:
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|
(A) determine each parent's monthly net income;
(B) add the parents' monthly net incomes together
|
| to determine the combined monthly net income of the parents;
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|
(C) select the corresponding appropriate amount
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| from the schedule of basic child support obligations based on the parties' combined monthly net income and number of children of the parties; and
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|
(D) calculate each parent's percentage share of
|
| the basic child support obligation.
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|
Although a monetary obligation is computed for each
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| parent as child support, the receiving parent's share is not payable to the other parent and is presumed to be spent directly on the child.
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|
(2) Duty of support. The court shall determine child
|
| support in each case by applying the child support guidelines unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors including, but not limited to, one or more of the following:
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|
(A) the financial resources and needs of the
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|
(B) the financial resources and needs of the
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|
(C) the standard of living the child would have
|
| enjoyed had the marriage or civil union not been dissolved; and
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|
(D) the physical and emotional condition of the
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| child and his or her educational needs.
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|
(3) Income.
(A) As used in this Section, "gross income" means
|
| the total of all income from all sources, except "gross income" does not include (i) benefits received by the parent from means-tested public assistance programs, including, but not limited to, Temporary Assistance for Needy Families, Supplemental Security Income, and the Supplemental Nutrition Assistance Program or (ii) benefits and income received by the parent for other children in the household, including, but not limited to, child support, survivor benefits, and foster care payments. Social security disability and retirement benefits paid for the benefit of the subject child must be included in the disabled or retired parent's gross income for purposes of calculating the parent's child support obligation, but the parent is entitled to a child support credit for the amount of benefits paid to the other party for the child. "Gross income" includes maintenance treated as taxable income for federal income tax purposes to the payee and received pursuant to a court order in the pending proceedings or any other proceedings and shall be included in the payee's gross income for purposes of calculating the parent's child support obligation.
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|
(B) As used in this Section, "net income" means
|
| gross income minus either the standardized tax amount calculated pursuant to subparagraph (C) of this paragraph (3) or the individualized tax amount calculated pursuant to subparagraph (D) of this paragraph (3), and minus any adjustments pursuant to subparagraph (F) of this paragraph (3). The standardized tax amount shall be used unless the requirements for an individualized tax amount set forth in subparagraph (E) of this paragraph (3) are met. "Net income" includes maintenance not includable in the gross taxable income of the payee for federal income tax purposes under a court order in the pending proceedings or any other proceedings and shall be included in the payee's net income for purposes of calculating the parent's child support obligation.
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|
(C) As used in this Section, "standardized tax
|
| amount" means the total of federal and state income taxes for a single person claiming the standard tax deduction, one personal exemption, and the applicable number of dependency exemptions for the minor child or children of the parties, and Social Security and Medicare tax calculated at the Federal Insurance Contributions Act rate.
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|
(I) Unless a court has determined otherwise
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| or the parties otherwise agree, the party with the majority of parenting time shall be deemed entitled to claim the dependency exemption for the parties' minor child.
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|
(II) The Illinois Department of Healthcare
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| and Family Services shall promulgate a standardized net income conversion table that computes net income by deducting the standardized tax amount from gross income.
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|
(D) As used in this Section, "individualized tax
|
| amount" means the aggregate of the following taxes:
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|
(I) federal income tax (properly calculated
|
| withholding or estimated payments);
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|
(II) State income tax (properly calculated
|
| withholding or estimated payments); and
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|
(III) Social Security or self-employment tax,
|
| if applicable (or, if none, mandatory retirement contributions required by law or as a condition of employment) and Medicare tax calculated at the Federal Insurance Contributions Act rate.
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|
(E) In lieu of a standardized tax amount, a
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| determination of an individualized tax amount may be made under items (I), (II), or (III) below. If an individualized tax amount determination is made under this subparagraph (E), all relevant tax attributes (including filing status, allocation of dependency exemptions, and whether a party is to claim the use of the standard deduction or itemized deductions for federal income tax purposes) shall be as the parties agree or as the court determines. To determine a party's reported income, the court may order the party to complete an Internal Revenue Service Form 4506-T, Request for Tax Transcript.
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|
(I) Agreement. Irrespective of whether the
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| parties agree on any other issue before the court, if they jointly stipulate for the record their concurrence on a computation method for the individualized tax amount that is different from the method set forth under subparagraph (D), the stipulated method shall be used by the court unless the court rejects the proposed stipulated method for good cause.
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|
(II) Summary hearing. If the court determines
|
| child support in a summary hearing under Section 501 and an eligible party opts in to the individualized tax amount method under this item (II), the individualized tax amount shall be determined by the court on the basis of information contained in one or both parties' Supreme Court approved Financial Affidavit (Family & Divorce Cases) and relevant supporting documents under applicable court rules. No party, however, is eligible to opt in unless the party, under applicable court rules, has served the other party with the required Supreme Court approved Financial Affidavit (Family & Divorce Cases) and has substantially produced supporting documents required by the applicable court rules.
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|
(III) Evidentiary hearing. If the court
|
| determines child support in an evidentiary hearing, whether for purposes of a temporary order or at the conclusion of a proceeding, item (II) of this subparagraph (E) does not apply. In each such case (unless item (I) governs), the individualized tax amount shall be as determined by the court on the basis of the record established.
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|
(F) Adjustments to income.
(I) Multi-family adjustment. If a parent is
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| also legally responsible for support of a child not shared with the other parent and not subject to the present proceeding, there shall be an adjustment to net income as follows:
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|
(i) Multi-family adjustment with court
|
| order. The court shall deduct from the parent's net income the amount of child support actually paid by the parent pursuant to a support order unless the court makes a finding that it would cause economic hardship to the child.
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|
(ii) Multi-family adjustment without
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| court order. Upon the request or application of a parent actually supporting a presumed, acknowledged, or adjudicated child living in or outside of that parent's household, there shall be an adjustment to child support. The court shall deduct from the parent's net income the amount of financial support actually paid by the parent for the child or 75% of the support the parent should pay under the child support guidelines (before this adjustment), whichever is less, unless the court makes a finding that it would cause economic hardship to the child. The adjustment shall be calculated using that parent's income alone.
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|
(II) Spousal Maintenance adjustment.
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| Obligations pursuant to a court order for spousal maintenance in the pending proceeding actually paid or payable to the same party to whom child support is to be payable or actually paid to a former spouse pursuant to a court order shall be deducted from the parent's after-tax income, unless the maintenance obligation is tax deductible to the payor for federal income tax purposes, in which case it shall be deducted from the payor's gross income for purposes of calculating the parent's child support obligation.
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|
(3.1) Business income. For purposes of calculating
|
| child support, net business income from the operation of a business means gross receipts minus ordinary and necessary expenses required to carry on the trade or business. As used in this paragraph, "business" includes, but is not limited to, sole proprietorships, closely held corporations, partnerships, other flow-through business entities, and self-employment. The court shall apply the following:
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|
(A) The accelerated component of depreciation and
|
| any business expenses determined either judicially or administratively to be inappropriate or excessive shall be excluded from the total of ordinary and necessary business expenses to be deducted in the determination of net business income from gross business income.
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|
(B) Any item of reimbursement or in-kind payment
|
| received by a parent from a business, including, but not limited to, a company car, reimbursed meals, free housing, or a housing allowance, shall be counted as income if not otherwise included in the recipient's gross income, if the item is significant in amount and reduces personal expenses.
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|
(3.2) Unemployment or underemployment. If a parent
|
| is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community. If there is insufficient work history to determine employment potential and probable earnings level, there shall be a rebuttable presumption that the parent's potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.
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|
(3.3) Rebuttable presumption in favor of guidelines.
|
| There is a rebuttable presumption in any judicial or administrative proceeding for child support that the amount of the child support obligation that would result from the application of the child support guidelines is the correct amount of child support.
|
|
(3.3a) Minimum child support obligation. There is a
|
| rebuttable presumption that a minimum child support obligation of $40 per month, per child, will be entered for an obligor who has actual or imputed gross income at or less than 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person, with a maximum total child support obligation for that obligor of $120 per month to be divided equally among all of the obligor's children.
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|
(3.3b) Zero dollar child support order. For parents
|
| with no gross income, who receive only means-tested assistance, or who cannot work due to a medically proven disability, incarceration, or institutionalization, there is a rebuttable presumption that the $40 per month minimum support order is inapplicable and a zero dollar order shall be entered.
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|
(3.4) Deviation factors. In any action to establish
|
| or modify child support, whether pursuant to a temporary or final administrative or court order, the child support guidelines shall be used as a rebuttable presumption for the establishment or modification of the amount of child support. The court may deviate from the child support guidelines if the application would be inequitable, unjust, or inappropriate. Any deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation. These reasons may include:
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|
(A) extraordinary medical expenditures necessary
|
| to preserve the life or health of a party or a child of either or both of the parties;
|
|
(B) additional expenses incurred for a child
|
| subject to the child support order who has special medical, physical, or developmental needs; and
|
|
(C) any other factor the court determines should
|
| be applied upon a finding that the application of the child support guidelines would be inappropriate, after considering the best interest of the child.
|
|
(3.5) Income in excess of the schedule of basic child
|
| support obligation. A court may use its discretion to determine child support if the combined adjusted net income of the parties exceeds the highest level of the schedule of basic child support obligation, except that the basic child support obligation shall not be less than the highest level of combined net income set forth in the schedule of basic child support obligation.
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|
(3.6) Extracurricular activities and school expenses.
|
| The court, in its discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable school and extracurricular activity expenses incurred which are intended to enhance the educational, athletic, social, or cultural development of the child.
|
|
(3.7) Child care expenses. The court, in its
|
| discretion, in addition to the basic child support obligation, may order either or both parents owing a duty of support to the child to contribute to the reasonable child care expenses of the child. The child care expenses shall be made payable directly to a party or directly to the child care provider at the time of child care services.
|
|
(A) "Child care expenses" means actual expenses
|
| reasonably necessary to enable a parent or non-parent custodian to be employed, to attend educational or vocational training programs to improve employment opportunities, or to search for employment. "Child care expenses" also includes deposits for securing placement in a child care program, the cost of before and after school care, and camps when school is not in session. A child's special needs shall be a consideration in determining reasonable child care expenses.
|
|
(B) Child care expenses shall be prorated in
|
| proportion to each parent's percentage share of combined net income, and may be added to the basic child support obligation if not paid directly by each parent to the provider of child care services. The obligor's and obligee's portion of actual child care expenses shall appear in the support order. If allowed, the value of the federal income tax credit for child care shall be subtracted from the actual cost to determine the net child care costs.
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|
(C) The amount of child care expenses shall be
|
| adequate to obtain reasonable and necessary child care. The actual child care expenses shall be used to calculate the child care expenses, if available. When actual child care expenses vary, the actual child care expenses may be averaged over the most recent 12-month period. When a parent is temporarily unemployed or temporarily not attending educational or vocational training programs, future child care expenses shall be based upon prospective expenses to be incurred upon return to employment or educational or vocational training programs.
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|
(D) An order for child care expenses may be
|
| modified upon a showing of a substantial change in circumstances. The party incurring child care expenses shall notify the other party within 14 days of any change in the amount of child care expenses that would affect the annualized child care amount as determined in the support order.
|
|
(3.8) Shared physical care. If each parent exercises
|
| 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation. The court shall determine each parent's share of the shared care child support obligation based on the parent's percentage share of combined net income. The child support obligation is then computed for each parent by multiplying that parent's portion of the shared care support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are then offset, with the parent owing more child support paying the difference between the child support amounts. The Illinois Department of Healthcare and Family Services shall promulgate a worksheet to calculate child support in cases in which the parents have shared physical care and use the standardized tax amount to determine net income.
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|
(3.9) Split physical care. When there is more than
|
| one child and each parent has physical care of at least one but not all of the children, the support is calculated by using 2 child support worksheets to determine the support each parent owes the other. The support shall be calculated as follows:
|
|
(A) compute the support the first parent would
|
| owe to other parent as if the child in his or her care was the only child of the parties; then
|
|
(B) compute the support the other parent would
|
| owe to the first parent as if the child in his or her care were the only child of the parties; then
|
|
(C) subtract the lesser support obligation from
|
|
The parent who owes the greater obligation shall be
|
| ordered to pay the difference in support to the other parent, unless the court determines, pursuant to other provisions of this Section, that it should deviate from the guidelines.
|
|
(4) Health care to be addressed by the court.
(A) A portion of the basic child support
|
| obligation is intended to cover basic ordinary out-of-pocket medical expenses. The court, in its discretion, in addition to the basic child support obligation, shall also provide for the child's current and future medical needs by ordering either or both parents to initiate health insurance coverage for the child through currently effective health insurance policies held by the parent or parents, purchase one or more or all health, dental, or vision insurance policies for the child, or provide for the child's current and future medical needs through some other manner.
|
|
(B) The court, in its discretion, may order
|
| either or both parents to contribute to the reasonable health care needs of the child not covered by insurance, including, but not limited to, unreimbursed medical, dental, orthodontic, or vision expenses and any prescription medication for the child not covered under the child's health insurance.
|
|
(C) If neither parent has access to appropriate
|
| private health insurance coverage, the court may order:
|
|
(I) one or both parents to provide health
|
| insurance coverage at any time it becomes available at a reasonable cost; or
|
|
(II) the parent or non-parent custodian with
|
| primary physical responsibility for the child to apply for public health insurance coverage for the child and require either or both parents to pay a reasonable amount of the cost of health insurance for the child.
|
|
The order may also provide that any time private
|
| health insurance coverage is available at a reasonable cost to that party it will be provided instead of cash medical support. As used in this Section, "cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by another person through employment or otherwise or for other medical costs not covered by insurance.
|
|
(D) The amount to be added to the basic child
|
| support obligation shall be the actual amount of the total health insurance premium that is attributable to the child who is the subject of the order. If this amount is not available or cannot be verified, the total cost of the health insurance premium shall be divided by the total number of persons covered by the policy. The cost per person derived from this calculation shall be multiplied by the number of children who are the subject of the order and who are covered under the health insurance policy. This amount shall be added to the basic child support obligation and shall be allocated between the parents in proportion to their respective net incomes.
|
|
(E) After the health insurance premium for the
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| child is added to the basic child support obligation and allocated between the parents in proportion to their respective incomes for child support purposes, if the obligor is paying the premium, the amount calculated for the obligee's share of the health insurance premium for the child shall be deducted from the obligor's share of the total child support obligation. If the obligee is paying for private health insurance for the child, the child support obligation shall be increased by the obligor's share of the premium payment. The obligor's and obligee's portion of health insurance costs shall appear in the support order.
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(F) Prior to allowing the health insurance
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| adjustment, the parent requesting the adjustment must submit proof that the child has been enrolled in a health insurance plan and must submit proof of the cost of the premium. The court shall require the parent receiving the adjustment to annually submit proof of continued coverage of the child to the other parent, or as designated by the court.
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(G) A reasonable cost for providing health
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| insurance coverage for the child may not exceed 5% of the providing parent's gross income. Parents with a net income below 133% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines or whose child is covered by Medicaid based on that parent's income may not be ordered to contribute toward or provide private coverage, unless private coverage is obtainable without any financial contribution by that parent.
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(H) If dental or vision insurance is included as
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| part of the employer's medical plan, the coverage shall be maintained for the child. If not included in the employer's medical plan, adding the dental or vision insurance for the child is at the discretion of the court.
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(I) If a parent has been directed to provide
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| health insurance pursuant to this paragraph and that parent's spouse or legally recognized partner provides the insurance for the benefit of the child either directly or through employment, a credit on the child support worksheet shall be given to that parent in the same manner as if the premium were paid by that parent.
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(4.5) In a proceeding for child support following
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| dissolution of the marriage or civil union by a court that lacked personal jurisdiction over the absent spouse, and in which the court is requiring payment of support for the period before the date an order for current support is entered, there is a rebuttable presumption that the obligor's net income for the prior period was the same as his or her net income at the time the order for current support is entered.
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(5) If the net income cannot be determined because of
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| default or any other reason, the court shall order support in an amount considered reasonable in the particular case. The final order in all cases shall state the support level in dollar amounts. However, if the court finds that the child support amount cannot be expressed exclusively as a dollar amount because all or a portion of the obligor's net income is uncertain as to source, time of payment, or amount, the court may order a percentage amount of support in addition to a specific dollar amount and enter such other orders as may be necessary to determine and enforce, on a timely basis, the applicable support ordered.
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(6) If (i) the obligor was properly served with a
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| request for discovery of financial information relating to the obligor's ability to provide child support, (ii) the obligor failed to comply with the request, despite having been ordered to do so by the court, and (iii) the obligor is not present at the hearing to determine support despite having received proper notice, then any relevant financial information concerning the obligor's ability to provide child support that was obtained pursuant to subpoena and proper notice shall be admitted into evidence without the need to establish any further foundation for its admission.
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(a-3) Life insurance to secure support. At the discretion of the court, a child support obligation pursuant to this Section and Sections 510, 513, and 513.5 of this Act may be secured, in whole or in part, by reasonably affordable life insurance on the life of one or both parents on such terms as the parties agree or as the court orders. The court may require such insurance remain in full force and effect until the termination of all obligations of support, subject to the following:
(1) Existing life insurance. The court shall be
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| apprised through evidence, stipulation, or otherwise as to the level, ownership, and type of existing life insurance death benefit coverage available to one or both parents, the cost of the premiums, cost ratings, and escalations and assignment of the policy, if applicable, and all other relevant circumstances. The court shall make findings relative thereto.
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(2) New life insurance. The court shall be apprised
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| through evidence, stipulation, or otherwise as to the availability of obtaining reasonably affordable new life insurance. To the extent the court determines that the support obligations should be secured, in whole or in part, by new life insurance on the life of one or both parents, the court may order that one or both parents comply with all requirements to obtain such new life insurance through employment, trade union, fraternal organizations, associations, or individual means.
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In determining the level and type of death benefits
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| coverage to be obtained by a parent, the court shall consider access and availability of life insurance to that parent, the cost of the premium, cost ratings, and escalations, if applicable, and all other relevant circumstances.
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(3) Other security. If life insurance is unavailable
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| to a parent, the court, in its discretion, or as agreed to by the parties, may order other equitable and reasonable means to secure a child support obligation.
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(a-5) In an action to enforce an order for child support based on the obligor's
failure
to make support payments as required by the order, notice of proceedings to
hold the obligor in contempt for that failure may be served on the obligor
by personal service or by regular mail addressed to the last known address of the obligor. The last known address of the obligor may be determined from
records of the clerk of the court, from the Federal Case Registry of Child
Support Orders, or by any other reasonable means.
(b) Failure of either parent to comply with an order to pay support shall
be punishable as in other cases of contempt. In addition to other
penalties provided by law the court may, after finding the parent guilty
of contempt, order that the parent be:
(1) placed on probation with such conditions of
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| probation as the court deems advisable;
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(2) sentenced to periodic imprisonment for a period
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| not to exceed 6 months; provided, however, that the court may permit the parent to be released for periods of time during the day or night to:
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(A) work; or
(B) conduct a business or other self-employed
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|
The court may further order any part or all of the earnings of a parent
during a sentence of periodic imprisonment paid to the Clerk of the Circuit
Court or to the parent having physical possession of the child or to the non-parent custodian having custody
of the child of the sentenced parent for the support of the child until further order of the court.
If a parent who is found guilty of contempt for failure to comply with an order to pay support is a person who conducts a business or who is self-employed, the court in addition to other penalties provided by law may order that the parent do one or more of the following: (i) provide to the court monthly financial statements showing income and expenses from the business or the self-employment; (ii) seek employment and report periodically to the court with a diary, listing, or other memorandum of his or her employment search efforts; or (iii) report to the Department of Employment Security for job search services to find employment that will be subject to withholding for child support.
If there is a unity of interest and ownership sufficient to render no
financial separation between an obligor and another person or
persons or business entity, the court may pierce the ownership veil of the
person, persons, or business entity to discover assets of the obligor held in the name of that person, those persons, or that business entity.
The following circumstances are sufficient to authorize a court to order
discovery of the assets of a person, persons, or business entity and to compel
the application of any discovered assets toward payment on the judgment for
support:
(1) the obligor and the person, persons, or business
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| entity maintain records together.
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(2) the obligor and the person, persons, or business
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| entity fail to maintain an arm's length relationship between themselves with regard to any assets.
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(3) the obligor transfers assets to the person,
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| persons, or business entity with the intent to perpetrate a fraud on the obligee.
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With respect to assets which
are real property, no order entered under this paragraph shall affect the
rights of bona fide purchasers, mortgagees, judgment creditors, or other lien
holders who acquire their interests in the property prior to the time a notice
of lis pendens pursuant to the Code of Civil Procedure or a copy of the order
is placed of record in the office of the recorder of deeds for the county in
which the real property is located.
The court may also order in cases where the 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, that the parent's Illinois driving
privileges be suspended until the court
determines that the parent is in compliance with the order of support.
The court may also order that the parent be issued a family financial
responsibility driving permit that would allow limited driving privileges for
employment and medical purposes in accordance with Section 7-702.1 of the
Illinois Vehicle Code. The Clerk of the Circuit Court shall certify the order
suspending the driving privileges of the parent or granting the issuance of a
family financial responsibility driving permit to the Secretary of State on
forms prescribed by the Secretary of State. Upon receipt of the authenticated
documents, the Secretary of State shall suspend the parent's driving privileges
until further order of the court and shall, if ordered by the court, subject to
the provisions of Section 7-702.1 of the Illinois Vehicle Code, issue a family
financial responsibility driving permit to the parent.
In addition to the penalties or punishment that may be imposed under this
Section, any person whose conduct constitutes a violation of Section 15 of the
Non-Support Punishment Act may be prosecuted under that Act, and a person
convicted under that Act may be sentenced in accordance with that Act. The
sentence may include but need not be limited to a requirement that the person
perform community service under Section 50 of that Act or participate in a work
alternative program under Section 50 of that Act. A person may not be required
to participate in a work alternative program under Section 50 of that Act if
the person is currently participating in a work program pursuant to Section
505.1 of this Act.
A support obligation, or any portion of a support obligation, which becomes
due and remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure.
An order for support entered or modified on or after January 1, 2006 shall
contain a statement that a support obligation required under the order, or any
portion of a support obligation required under the order, that becomes due and
remains unpaid as of the end of each month, excluding the child support that was due for that month to the extent that it was not paid in that month, shall accrue simple interest as set forth in Section 12-109 of the Code of Civil Procedure. Failure to include the statement in the order for support does
not affect the validity of the order or the accrual of interest as provided in
this Section.
(c) A one-time charge of 20% is imposable upon the amount of
past-due child support owed on July 1, 1988 which has accrued under a
support order entered by the court. The charge shall be imposed in
accordance with the provisions of Section 10-21 of the Illinois Public Aid
Code and shall be enforced by the court upon petition.
(d) Any new or existing support order entered by the court
under this Section shall be deemed to be a series of judgments against the
person obligated to pay support thereunder, each such judgment to be in the
amount of each payment or installment of support and each such judgment to
be deemed entered as of the date the corresponding payment or installment
becomes due under the terms of the support order. Each such judgment shall
have the full force, effect and attributes of any other judgment of this
State, including the ability to be enforced.
Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of
the obligor for each installment of overdue support owed by the obligor.
(e) When child support is to be paid through the Clerk of the Court in a
county of 500,000 inhabitants or less, the order shall direct the obligor to pay to the Clerk, in addition to the child support payments, all fees
imposed by the county board under paragraph (4) of subsection (bb) of
Section 27.1a of the Clerks of Courts Act. When child support is to be paid through the clerk of the court in a
county of more than 500,000 but less than 3,000,000 inhabitants, the order shall direct the obligor
to pay to the clerk, in addition to the child support payments, all fees
imposed by the county board under paragraph (4) of subsection (bb) of
Section 27.2 of the Clerks of Courts Act. Unless paid pursuant to
an Income Withholding Order/Notice for Support, the payment of the fee shall be by payment acceptable to the clerk and shall be made to the order of the
Clerk.
(f) All orders for support, when entered or
modified, shall include a provision requiring the obligor to notify
the court and, in cases in which a party is receiving child and spouse
services under Article X of the Illinois Public Aid Code, the
Department of Healthcare and Family Services, within 7 days, (i) of the name and address
of any new employer of the obligor, (ii) whether the obligor has access to
health insurance coverage through the employer or other group coverage and,
if so, the policy name and number and the names of persons covered under
the policy, except only the initials of any covered minors shall be included, and (iii) of any new residential or mailing address or telephone
number of the obligor. In any subsequent action to enforce a
support order, upon a sufficient showing that a diligent effort has been made
to ascertain the location of the obligor, service of process or
provision of notice necessary in the case may be made at the last known
address of the obligor in any manner expressly provided by the
Code of Civil Procedure or this Act, which service shall be sufficient for
purposes of due process.
(g) An order for support shall include a date on which the current
support obligation terminates. The termination date shall be no earlier than
the date on which the child covered by the order will attain the age of
18. However, if the child will not graduate from high school until after
attaining the age of 18, then the termination date shall be no earlier than the
earlier of the date on which the child's high school graduation will occur or
the date on which the child will attain the age of 19. The order for support
shall state that the termination date does not apply to any arrearage that may
remain unpaid on that date. Nothing in this subsection shall be construed to
prevent the court from modifying the order or terminating the order in the
event the child is otherwise emancipated.
(g-5) If there is an unpaid arrearage or delinquency (as those terms are defined in the Income Withholding for Support Act) equal to at least one month's support obligation on the termination date stated in the order for support or, if there is no termination date stated in the order, on the date the child attains the age of majority or is otherwise emancipated, the periodic amount required to be paid for current support of that child immediately prior to that date shall automatically continue to be an obligation, not as current support but as periodic payment toward satisfaction of the unpaid arrearage or delinquency. That periodic payment shall be in addition to any periodic payment previously required for satisfaction of the arrearage or delinquency. The total periodic amount to be paid toward satisfaction of the arrearage or delinquency may be enforced and collected by any method provided by law for enforcement and collection of child support, including but not limited to income withholding under the Income Withholding for Support Act. Each order for support entered or modified on or after January 1, 2005 (the effective date of Public Act 93-1061) must contain a statement notifying the parties of the requirements of this subsection. Failure to include the statement in the order for support does not affect the validity of the order or the operation of the provisions of this subsection with regard to the order. This subsection shall not be construed to prevent or affect the establishment or modification of an order for support of a minor child or the establishment or modification of an order for support of a non-minor child or educational expenses under Section 513 of this Act.
(h) An order entered under this Section shall include a provision requiring
either parent to report to the other parent and to the Clerk of Court within 10 days each time either parent obtains new employment, and each time either parent's
employment is terminated for any reason. The report shall be in writing and
shall, in the case of new employment, include the name and address of the new
employer. Failure to report new employment or the termination of current
employment, if coupled with nonpayment of support for a period in excess of 60
days, is indirect criminal contempt. For either parent arrested for failure to report new employment bond shall be set in the amount of the child support that should have been paid during the period of unreported employment. An order entered under this Section shall also include a provision requiring either obligor
and obligee to advise the other of a change in residence within 5 days
of the change except when the court finds that the physical, mental, or
emotional health of a party or that of a child, or both, would be
seriously endangered by disclosure of the party's address.
(i) The court does not lose the powers of contempt, driver's license
suspension, or other child support enforcement mechanisms, including, but
not limited to, criminal prosecution as set forth in this Act, upon the
emancipation of the minor child.
(Source: P.A. 102-823, eff. 5-13-22.)
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(750 ILCS 5/508) (from Ch. 40, par. 508)
Sec. 508. Attorney's fees; client's rights and responsibilities respecting
fees and
costs. (a) The court from time to time, after due notice and hearing, and after
considering the financial resources of the parties, may order any party to
pay a reasonable amount for his own or the other party's costs and
attorney's fees. Interim attorney's fees and costs may be awarded from the
opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501 and in any other proceeding under this subsection. At the
conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney's fees and costs may be
awarded from the opposing party in accordance with subsection (j) of Section
503 and in any other proceeding under this subsection. Fees and costs may be awarded in any proceeding to counsel from a former client in
accordance with subsection (c) of
this Section.
Awards may be made in connection with the following:
(1) The maintenance or defense of any proceeding |
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(2) The enforcement or modification of any order or
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(3) The defense of an appeal of any order or judgment
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| under this Act, including the defense of appeals of post-judgment orders.
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(3.1) The prosecution of any claim on appeal (if the
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| prosecuting party has substantially prevailed).
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(4) The maintenance or defense of a petition brought
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| under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act. Fees incurred with respect to motions under Section 2-1401 of the Code of Civil Procedure may be granted only to the party who substantially prevails.
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(5) The costs and legal services of an attorney
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| rendered in preparation of the commencement of the proceeding brought under this Act.
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(6) Ancillary litigation incident to, or reasonably
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| connected with, a proceeding under this Act.
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(7) Costs and attorney's fees incurred in an action
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| under the Hague Convention on the Civil Aspects of International Child Abduction.
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|
All petitions for or relating to interim fees and costs under this subsection shall be accompanied by an affidavit as to the factual basis for the relief requested and all hearings relative to any such petition shall be scheduled expeditiously by the court. All provisions for contribution under this subsection shall also be subject to paragraphs (3), (4), and (5) of subsection (j) of Section 503.
The court may order that the award of attorney's fees and costs
(including an interim or contribution award) shall be paid directly to the
attorney, who may enforce the order in his or her name, or that it shall be
paid to
the appropriate party. Judgment may be entered and enforcement had
accordingly. Except as otherwise provided in subdivision (e)(1) of this
Section, subsection (c) of this Section
is exclusive as to the right of any counsel
(or
former counsel) of record to petition a court for an award and judgment for
final fees and costs during the pendency of a proceeding under this Act.
(a-5) A petition for temporary attorney's fees in a post-judgment case may be heard on a non-evidentiary,
summary basis.
(b) In every proceeding for the enforcement of an order or judgment
when the court finds that the failure to comply with the order or judgment
was without compelling cause or justification, the court shall order the
party against
whom the proceeding is brought to pay promptly the costs and reasonable
attorney's
fees of the prevailing party.
If non-compliance is with respect to a discovery order, the non-compliance is
presumptively without compelling cause or justification, and the presumption
may only be rebutted by clear and convincing evidence. If at any time a court
finds that a hearing under this Act was precipitated or conducted for any
improper purpose, the court shall allocate fees and costs of all parties for
the hearing to the party or counsel found to have acted improperly. Improper
purposes include, but are not limited to, harassment, unnecessary
delay, or other acts needlessly increasing the cost of litigation.
(c) Final hearings for attorney's fees and costs against an attorney's own
client, pursuant to a Petition for Setting Final Fees and Costs of either a
counsel or a client, shall be governed by the following:
(1) No petition of a counsel of record may be filed
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| against a client unless the filing counsel previously has been granted leave to withdraw as counsel of record or has filed a motion for leave to withdraw as counsel. On receipt of a petition of a client under this subsection (c), the counsel of record shall promptly file a motion for leave to withdraw as counsel. If the client and the counsel of record agree, however, a hearing on the motion for leave to withdraw as counsel filed pursuant to this subdivision (c)(1) may be deferred until completion of any alternative dispute resolution procedure under subdivision (c)(4). As to any Petition for Setting Final Fees and Costs against a client or counsel over whom the court has not obtained jurisdiction, a separate summons shall issue. Whenever a separate summons is not required, original notice as to a Petition for Setting Final Fees and Costs may be given, and documents served, in accordance with Illinois Supreme Court Rules 11 and 12.
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(2) No final hearing under this subsection (c) is
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| permitted unless: (i) the counsel and the client had entered into a written engagement agreement at the time the client retained the counsel (or reasonably soon thereafter) and the agreement meets the requirements of subsection (f); (ii) the written engagement agreement is attached to an affidavit of counsel that is filed with the petition or with the counsel's response to a client's petition; (iii) judgment in any contribution hearing on behalf of the client has been entered or the right to a contribution hearing under subsection (j) of Section 503 has been waived; (iv) the counsel has withdrawn as counsel of record; and (v) the petition seeks adjudication of all unresolved claims for fees and costs between the counsel and the client. Irrespective of a Petition for Setting Final Fees and Costs being heard in conjunction with an original proceeding under this Act, the relief requested under a Petition for Setting Final Fees and Costs constitutes a distinct cause of action. A pending but undetermined Petition for Setting Final Fees and Costs shall not affect appealability or enforceability of any judgment or other adjudication in the original proceeding.
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(3) The determination of reasonable attorney's fees
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| and costs either under this subsection (c), whether initiated by a counsel or a client, or in an independent proceeding for services within the scope of subdivisions (1) through (5) of subsection (a), is within the sound discretion of the trial court. The court shall first consider the written engagement agreement and, if the court finds that the former client and the filing counsel, pursuant to their written engagement agreement, entered into a contract which meets applicable requirements of court rules and addresses all material terms, then the contract shall be enforceable in accordance with its terms, subject to the further requirements of this subdivision (c)(3). Before ordering enforcement, however, the court shall consider the performance pursuant to the contract. Any amount awarded by the court must be found to be fair compensation for the services, pursuant to the contract, that the court finds were reasonable and necessary. Quantum meruit principles shall govern any award for legal services performed that is not based on the terms of the written engagement agreement (except that, if a court expressly finds in a particular case that aggregate billings to a client were unconscionably excessive, the court in its discretion may reduce the award otherwise determined appropriate or deny fees altogether).
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(4) No final hearing under this subsection (c) is
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| permitted unless any controversy over fees and costs (that is not otherwise subject to some form of alternative dispute resolution) has first been submitted to mediation, arbitration, or any other court approved alternative dispute resolution procedure, except as follows:
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(A) In any circuit court for a single county with
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| a population in excess of 1,000,000, the requirement of the controversy being submitted to an alternative dispute resolution procedure is mandatory unless the client and the counsel both affirmatively opt out of such procedures; or
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(B) In any other circuit court, the requirement
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| of the controversy being submitted to an alternative dispute resolution procedure is mandatory only if neither the client nor the counsel affirmatively opts out of such procedures.
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After completion of any such procedure (or after one
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| or both sides has opted out of such procedures), if the dispute is unresolved, any pending motion for leave to withdraw as counsel shall be promptly granted and a final hearing under this subsection (c) shall be expeditiously set and completed.
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(5) A petition (or a praecipe for fee hearing without
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| the petition) shall be filed no later than the end of the period in which it is permissible to file a motion pursuant to Section 2-1203 of the Code of Civil Procedure. A praecipe for fee hearing shall be dismissed if a Petition for Setting Final Fees and Costs is not filed within 60 days after the filing of the praecipe. A counsel who becomes a party by filing a Petition for Setting Final Fees and Costs, or as a result of the client filing a Petition for Setting Final Fees and Costs, shall not be entitled to exercise the right to a substitution of a judge without cause under subdivision (a)(2) of Section 2-1001 of the Code of Civil Procedure. Each of the foregoing deadlines for the filing of a praecipe or a petition shall be:
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(A) tolled if a motion is filed under Section 2-1203
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| of the Code of Civil Procedure, in which instance a petition (or a praecipe) shall be filed no later than 30 days following disposition of all Section 2-1203 motions; or
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(B) tolled if a notice of appeal is filed, in which
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| instance a petition (or praecipe) shall be filed no later than 30 days following the date jurisdiction on the issue appealed is returned to the trial court.
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If a praecipe has been timely filed, then by timely filed written stipulation between counsel and client (or former client), the deadline for the filing of a petition may be extended for a period of up to one year.
(d) A consent judgment, in favor of a current counsel of record against his
or her own client for a specific amount in a marital settlement agreement,
dissolution judgment, or any other instrument involving the other litigant, is
prohibited. A consent judgment between client and counsel, however, is
permissible if it is entered pursuant to a verified petition for entry of
consent judgment, supported by an affidavit of the counsel of record that
includes the counsel's representation that the client has been provided an itemization of the billing or billings to the client, detailing
hourly costs, time spent, and tasks performed, and by an affidavit of the
client acknowledging receipt of that documentation, awareness
of the right to a hearing, the right to be represented by counsel (other than
counsel to whom the consent judgment is in favor), and the right to be present
at
the time of presentation of the petition, and agreement to the terms of the
judgment. The petition may be filed at any time during which it is permissible
for counsel of record to file a petition (or a praecipe) for a final fee
hearing, except that no such petition for entry of consent judgment may be
filed before adjudication (or waiver) of the client's right to contribution
under subsection (j) of Section 503 or filed after the filing of a
petition (or a praecipe) by counsel of record for a fee hearing under
subsection (c) if the petition (or praecipe) remains pending. No consent
security arrangement between a client and a counsel of record, pursuant to
which assets of a client are collateralized to secure payment of legal fees or
costs, is permissible unless approved in advance by the court as being
reasonable under the circumstances.
(e) Counsel may pursue an award and judgment against a former client for
legal
fees and costs in an independent proceeding in the following circumstances:
(1) While a case under this Act is still pending, a
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| former counsel may pursue such an award and judgment at any time subsequent to 90 days after the entry of an order granting counsel leave to withdraw; and
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(2) After the close of the period during which a
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| petition (or praecipe) may be filed under subdivision (c)(5), if no such petition (or praecipe) for the counsel remains pending, any counsel or former counsel may pursue such an award and judgment in an independent proceeding.
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In an independent proceeding, the prior applicability of this Section
shall in no way be deemed to have diminished any other right of any counsel (or
former counsel) to pursue an award and judgment for legal fees and costs on the
basis of remedies that may otherwise exist under applicable law; and the limitations period for breach of contract shall apply. In an
independent proceeding under subdivision (e)(1) in which the former counsel had
represented a former client in a dissolution case that is still pending, the former
client may bring
in his or her spouse as a third-party defendant, provided on or before the
final date for filing a petition (or praecipe) under subsection (c), the party
files an appropriate third-party complaint under Section 2-406 of the Code of
Civil Procedure. In any such case, any judgment later obtained by the
former counsel shall be against both spouses or ex-spouses, jointly and
severally (except that, if a hearing under subsection (j) of Section 503 has
already been concluded and the court hearing the contribution issue has imposed
a percentage allocation between the parties as to
fees and costs otherwise being adjudicated in the independent proceeding, the
allocation
shall be applied without deviation by the court in the independent proceeding
and a separate judgment shall be entered against each spouse for the
appropriate
amount). After the period for the commencement of a proceeding under
subsection (c), the provisions of this Section (other than the standard set
forth in subdivision (c)(3) and the terms respecting consent security
arrangements in subsection (d) of this Section 508) shall be inapplicable.
The changes made by this amendatory Act of the 94th General Assembly are declarative of existing law.
(f) Unless the Supreme Court by rule addresses the matters set out in this
subsection (f), a written engagement agreement within the scope
of subdivision (c)(2) shall have appended to it verbatim the following
Statement:
"STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(1) WRITTEN ENGAGEMENT AGREEMENT. The written engagement agreement, prepared
by the counsel, shall clearly address the objectives of representation and
detail the fee arrangement, including all material terms. If fees are to be
based on criteria apart from, or in addition to, hourly rates, such criteria
(e.g., unique time demands and/or utilization of unique expertise) shall be
delineated. The client shall receive a copy of the written engagement
agreement and any additional clarification requested and is advised not to
sign any such agreement which the client finds to be unsatisfactory or does
not understand.
(2) REPRESENTATION. Representation will commence upon the signing of the
written engagement agreement. The counsel will provide competent
representation, which requires legal knowledge, skill, thoroughness and
preparation to handle those matters set forth in the written engagement
agreement. Once employed, the counsel will act with reasonable diligence and
promptness, as well as use his best efforts on behalf of the client, but he
cannot guarantee results. The counsel will abide by the client's decision
concerning the objectives of representation, including whether or not to accept
an offer of settlement, and will endeavor to explain any matter to the extent
reasonably necessary to permit the client to make informed decisions regarding
representation. During the course of representation and afterwards, the
counsel
may not use or reveal a client's confidence or secrets, except as required or
permitted by law.
(3) COMMUNICATION. The counsel will keep the client reasonably informed
about the status of representation and will promptly respond to reasonable
requests for information, including any reasonable request for an estimate
respecting future costs of the representation or an appropriate portion of it.
The client shall be truthful in all discussions with the counsel and provide
all information or documentation required to enable the counsel to provide
competent representation. During representation, the client is entitled to
receive all pleadings and substantive documents prepared on behalf of the
client and every document received from any other counsel of record. At the
end of the representation and on written request from the client, the counsel
will return to the client all original documents and exhibits. In the event
that the counsel withdraws from representation, or is discharged by the client,
the counsel will turn over to the substituting counsel (or, if no
substitutions, to the client) all original documents and exhibits together with
complete copies of all pleadings and discovery within thirty (30) days of the
counsel's withdrawal or discharge.
(4) ETHICAL CONDUCT. The counsel cannot be required to engage in conduct
which is illegal, unethical, or fraudulent. In matters involving minor
children, the counsel may refuse to engage in conduct which, in the counsel's
professional judgment, would be contrary to the best interest of the client's
minor child or children. A counsel who cannot ethically abide by his client's
directions shall be allowed to withdraw from representation.
(5) FEES. The counsel's fee for services may not be contingent upon the
securing of a dissolution of marriage or upon being allocated parental responsibility or be based upon
the amount of maintenance, child support, or property settlement received,
except as specifically permitted under Supreme Court rules. The
counsel may not require a non-refundable retainer fee, but must remit back any
overpayment at the end of the representation. The counsel may enter into a
consensual security arrangement with the client whereby assets of the client
are pledged to secure payment of legal fees or costs, but only if the counsel
first obtains approval of the Court. The counsel will prepare and provide the
client with an itemized billing statement detailing hourly rates (and/or other
criteria), time spent, tasks performed, and costs incurred on a regular basis,
at least quarterly. The client should review each billing statement promptly
and address any objection or error in a timely manner. The client will not be
billed for time spent to explain or correct a billing statement. If an
appropriately detailed written estimate is submitted to a client as to future
costs for a counsel's representation or a portion of the contemplated services
(i.e., relative to specific steps recommended by the counsel in the estimate)
and, without objection from the client, the counsel then performs the
contemplated services, all such services are presumptively reasonable and
necessary, as well as to be deemed pursuant to the client's direction. In an
appropriate case, the client may pursue contribution to his or her fees and
costs from the other party.
(6) DISPUTES. The counsel-client relationship is regulated by the Illinois
Rules of Professional Conduct (Article VIII of the Illinois Supreme Court
Rules), and any dispute shall be reviewed under the terms of such Rules."
(g) The changes to this Section 508 made by this amendatory Act of 1996
apply to cases pending on or after June 1, 1997, except as follows:
(1) Subdivisions (c)(1) and (c)(2) of this Section |
| 508, as well as provisions of subdivision (c)(3) of this Section 508 pertaining to written engagement agreements, apply only to cases filed on or after June 1, 1997.
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(2) The following do not apply in the case of a
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| hearing under this Section that began before June 1, 1997:
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(A) Subsection (c-1) of Section 501.
(B) Subsection (j) of Section 503.
(C) The changes to this Section 508 made by this
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| amendatory Act of 1996 pertaining to the final setting of fees.
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|
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17.)
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(750 ILCS 5/602.9) Sec. 602.9. Visitation by certain non-parents. (a) As used in this Section: (1) "electronic communication" means time that a |
| grandparent, great-grandparent, sibling, or step-parent spends with a child during which the child is not in the person's actual physical custody, but which is facilitated by the use of communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication;
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(2) "sibling" means a brother or sister either of
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| the whole blood or the half blood, stepbrother, or stepsister of the minor child;
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(3) "step-parent" means a person married to a
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| child's parent, including a person married to the child's parent immediately prior to the parent's death; and
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(4) "visitation" means in-person time spent between a
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| child and the child's grandparent, great-grandparent, sibling, step-parent, or any person designated under subsection (d) of Section 602.7. In appropriate circumstances, visitation may include electronic communication under conditions and at times determined by the court.
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(b) General provisions.
(1) An appropriate person, as identified in
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| subsection (c) of this Section, may bring an action in circuit court by petition, or by filing a petition in a pending dissolution proceeding or any other proceeding that involves parental responsibilities or visitation issues regarding the child, requesting visitation with the child pursuant to this Section. If there is not a pending proceeding involving parental responsibilities or visitation with the child, the petition for visitation with the child must be filed in the county in which the child resides. Notice of the petition shall be given as provided in subsection (c) of Section 601.2 of this Act.
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(2) This Section does not apply to a child:
(A) in whose interests a petition is pending
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| under Section 2-13 of the Juvenile Court Act of 1987; or
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(B) in whose interests a petition to adopt by an
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| unrelated person is pending under the Adoption Act; or
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(C) who has been voluntarily surrendered by the
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| parent or parents, except for a surrender to the Department of Children and Family Services or a foster care facility; or
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(D) who has been previously adopted by an
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| individual or individuals who are not related to the biological parents of the child or who is the subject of a pending adoption petition by an individual or individuals who are not related to the biological parents of the child; or
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(E) who has been relinquished pursuant to the
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| Abandoned Newborn Infant Protection Act.
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(3) A petition for visitation may be filed under this
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| Section only if there has been an unreasonable denial of visitation by a parent and the denial has caused the child undue mental, physical, or emotional harm.
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(4) There is a rebuttable presumption that a fit
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| parent's actions and decisions regarding grandparent, great-grandparent, sibling, or step-parent visitation are not harmful to the child's mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent's actions and decisions regarding visitation will cause undue harm to the child's mental, physical, or emotional health.
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(5) In determining whether to grant visitation, the
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| court shall consider the following:
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(A) the wishes of the child, taking into account
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| the child's maturity and ability to express reasoned and independent preferences as to visitation;
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(B) the mental and physical health of the child;
(C) the mental and physical health of the
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| grandparent, great-grandparent, sibling, or step-parent;
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(D) the length and quality of the prior
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| relationship between the child and the grandparent, great-grandparent, sibling, or step-parent;
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(E) the good faith of the party in filing the
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(F) the good faith of the person denying
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(G) the quantity of the visitation time requested
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| and the potential adverse impact that visitation would have on the child's customary activities;
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(H) any other fact that establishes that the loss
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| of the relationship between the petitioner and the child is likely to unduly harm the child's mental, physical, or emotional health; and
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(I) whether visitation can be structured in a way
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| to minimize the child's exposure to conflicts between the adults.
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(6) Any visitation rights granted under this Section
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| before the filing of a petition for adoption of the child shall automatically terminate by operation of law upon the entry of an order terminating parental rights or granting the adoption of the child, whichever is earlier. If the person or persons who adopted the child are related to the child, as defined by Section 1 of the Adoption Act, any person who was related to the child as grandparent, great-grandparent, or sibling prior to the adoption shall have standing to bring an action under this Section requesting visitation with the child.
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(7) The court may order visitation rights for the
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| grandparent, great-grandparent, sibling, or step-parent that include reasonable access without requiring overnight or possessory visitation.
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(c) Visitation by grandparents, great-grandparents, step-parents, and siblings.
(1) Grandparents, great-grandparents, step-parents,
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| and siblings of a minor child who is one year old or older may bring a petition for visitation and electronic communication under this Section if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and if at least one of the following conditions exists:
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(A) the child's other parent is deceased or has
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| been missing for at least 90 days. For the purposes of this subsection a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency; or
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(B) a parent of the child is incompetent as a
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(C) a parent has been incarcerated in jail or
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| prison for a period in excess of 90 days immediately prior to the filing of the petition; or
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(D) the child's parents have been granted a
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| dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child (other than an adoption proceeding of an unrelated child, a proceeding under Article II of the Juvenile Court Act of 1987, or an action for an order of protection under the Illinois Domestic Violence Act of 1986 or Article 112A of the Code of Criminal Procedure of 1963) and at least one parent does not object to the grandparent, great-grandparent, step-parent, or sibling having visitation with the child. The visitation of the grandparent, great-grandparent, step-parent, or sibling must not diminish the parenting time of the parent who is not related to the grandparent, great-grandparent, step-parent, or sibling seeking visitation; or
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(E) (i) the child is born to parents who are not
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| married to each other; (ii) the parents are not living together; (iii) the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child; and (iv) the parent-child relationship has been legally established. For purposes of this subdivision (E), if the petitioner is a grandparent or great-grandparent, the parent-child relationship need be legally established only with respect to the parent who is related to the grandparent or great-grandparent. For purposes of this subdivision (E), if the petitioner is a step-parent, the parent-child relationship need be legally established only with respect to the parent who is married to the petitioner or was married to the petitioner immediately before the parent's death.
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(2) In addition to the factors set forth in
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| subdivision (b)(5) of this Section, the court should consider:
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(A) whether the child resided with the petitioner
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| for at least 6 consecutive months with or without a parent present;
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(B) whether the child had frequent and regular
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| contact or visitation with the petitioner for at least 12 consecutive months; and
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(C) whether the grandparent, great-grandparent,
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| sibling, or step-parent was a primary caretaker of the child for a period of not less than 6 consecutive months within the 24-month period immediately preceding the commencement of the proceeding.
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(3) An order granting visitation privileges under
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| this Section is subject to subsections (c) and (d) of Section 603.10.
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(4) A petition for visitation privileges may not be
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| filed pursuant to this subsection (c) by the parents or grandparents of a parent of the child if parentage between the child and the related parent has not been legally established.
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(d) Modification of visitation orders.
(1) Unless by stipulation of the parties, no motion
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| to modify a grandparent, great-grandparent, sibling, or step-parent visitation order may be made earlier than 2 years after the date the order was filed, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously the child's mental, physical, or emotional health.
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(2) The court shall not modify an order that grants
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| visitation to a grandparent, great-grandparent, sibling, or step-parent unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior visitation order or that were unknown to the court at the time of entry of the prior visitation order, that a change has occurred in the circumstances of the child or his or her parent, and that the modification is necessary to protect the mental, physical, or emotional health of the child. The court shall state in its decision specific findings of fact in support of its modification or termination of the grandparent, great-grandparent, sibling, or step-parent visitation. A child's parent may always petition to modify visitation upon changed circumstances when necessary to promote the child's best interests.
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(3) Notice of a motion requesting modification of a
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| visitation order shall be provided as set forth in subsection (c) of Section 601.2 of this Act.
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(4) Attorney's fees and costs shall be assessed
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| against a party seeking modification of the visitation order if the court finds that the modification action is vexatious and constitutes harassment.
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(e) No child's grandparent, great-grandparent, sibling, or step-parent, or any person to whom the court is considering granting visitation privileges pursuant to subsection (d) of Section 602.7, who was convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age including, but not limited to, offenses for violations of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, or Article 12 of the Criminal Code of 1961 or the Criminal Code of 2012, is entitled to visitation while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for that offense, and upon discharge from incarceration for a misdemeanor offense or upon discharge from parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense. Visitation shall be denied until the person successfully completes a treatment program approved by the court. Upon completion of treatment, the court may deny visitation based on the factors listed in subdivision (b)(5) of this Section.
(f) No child's grandparent, great-grandparent, sibling, or step-parent, or any person to whom the court is considering granting visitation privileges pursuant to subsection (d) of Section 602.7, may be granted visitation if he or she has been convicted of first degree murder of a parent, grandparent, great-grandparent, or sibling of the child who is the subject of the visitation request. Pursuant to a motion to modify visitation, the court shall revoke visitation rights previously granted to any person who would otherwise be entitled to petition for visitation rights under this Section or granted visitation under subsection (d) of Section 602.7, if the person has been convicted of first degree murder of a parent, grandparent, great-grandparent, or sibling of the child who is the subject of the visitation order. Until an order is entered pursuant to this subsection, no person may visit, with the child present, a person who has been convicted of first degree murder of the parent, grandparent, great-grandparent, or sibling of the child without the consent of the child's parent, other than a parent convicted of first degree murder as set forth herein, or legal guardian.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-706, eff. 1-1-19.)
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(750 ILCS 5/602.10) Sec. 602.10. Parenting plan. (a) Filing of parenting plan. All parents, within 120 days after service or filing of any petition for allocation of parental responsibilities, must file with the court, either jointly or separately, a proposed parenting plan. The time period for filing a parenting plan may be extended by the court for good cause shown. If no appearance has been filed by the respondent, no parenting plan is required unless ordered by the court. (b) No parenting plan filed. In the absence of filing of one or more parenting plans, the court must conduct an evidentiary hearing to allocate parental responsibilities.
(c) Mediation. The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.
(d) Parents' agreement on parenting plan. The parenting plan must be in writing and signed by both parents. The parents must submit the parenting plan to the court for approval within 120 days after service of a petition for allocation of parental responsibilities or the filing of an appearance, except for good cause shown. Notwithstanding the provisions above, the parents may agree upon and submit a parenting plan at any time after the commencement of a proceeding until prior to the entry of a judgment of dissolution of marriage. The agreement is binding upon the court unless it finds, after considering the circumstances of the parties and any other relevant evidence produced by the parties, that the agreement is not in the best interests of the child. If the court does not approve the parenting plan, the court shall make express findings of the reason or reasons for its refusal to approve the plan. The court, on its own motion, may conduct an evidentiary hearing to determine whether the parenting plan is in the child's best interests.
(e) Parents cannot agree on parenting plan. When parents fail to submit an agreed parenting plan, each parent must file and submit a written, signed parenting plan to the court within 120 days after the filing of an appearance, except for good cause shown. The court's determination of parenting time should be based on the child's best interests. The filing of the plan may be excused by the court if: (1) the parties have commenced mediation for the |
| purpose of formulating a parenting plan; or
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(2) the parents have agreed in writing to extend the
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| time for filing a proposed plan and the court has approved such an extension; or
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(3) the court orders otherwise for good cause shown.
(f) Parenting plan contents. At a minimum, a parenting plan must set forth the following:
(1) an allocation of significant decision-making
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(2) provisions for the child's living arrangements
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| and for each parent's parenting time, including either:
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(A) a schedule that designates in which parent's
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| home the minor child will reside on given days; or
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(B) a formula or method for determining such a
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| schedule in sufficient detail to be enforced in a subsequent proceeding;
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(3) a mediation provision addressing any proposed
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| reallocation of parenting time or regarding the terms of allocation of parental responsibilities, except that this provision is not required if one parent is allocated all significant decision-making responsibilities;
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(4) each parent's right of access to medical, dental,
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| and psychological records (subject to the Mental Health and Developmental Disabilities Confidentiality Act), child care records, and school and extracurricular records, reports, and schedules, unless expressly denied by a court order or denied under Section 602.11;
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(5) a designation of the parent who will be
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| denominated as the parent with the majority of parenting time for purposes of Section 606.10;
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(6) the child's residential address for school
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| enrollment purposes only;
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(7) each parent's residence address and phone number,
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| and each parent's place of employment and employment address and phone number;
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(8) a requirement that a parent changing his or her
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| residence provide at least 60 days prior written notice of the change to any other parent under the parenting plan or allocation judgment, unless such notice is impracticable or unless otherwise ordered by the court. If such notice is impracticable, written notice shall be given at the earliest date practicable. At a minimum, the notice shall set forth the following:
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(A) the intended date of the change of residence;
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(B) the address of the new residence;
(9) provisions requiring each parent to notify the
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| other of emergencies, health care, travel plans, or other significant child-related issues;
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(10) transportation arrangements between the parents;
(11) provisions for communications, including
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| electronic communications, with the child during the other parent's parenting time;
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(12) provisions for resolving issues arising from a
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| parent's future relocation, if applicable;
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(13) provisions for future modifications of the
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| parenting plan, if specified events occur;
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(14) provisions for the exercise of the right of
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| first refusal, if so desired, that are consistent with the best interests of the minor child; provisions in the plan for the exercise of the right of first refusal must include:
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(i) the length and kind of child-care
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| requirements invoking the right of first refusal;
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(ii) notification to the other parent and for his
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(iii) transportation requirements; and
(iv) any other provision related to the exercise
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| of the right of first refusal necessary to protect and promote the best interests of the minor child; and
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(15) any other provision that addresses the child's
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| best interests or that will otherwise facilitate cooperation between the parents.
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The personal information under items (6), (7), and (8) of this subsection is not required if there is evidence of or the parenting plan states that there is a history of domestic violence or abuse, or it is shown that the release of the information is not in the child's or parent's best interests.
(g) The court shall conduct a trial or hearing to determine a plan which maximizes the child's relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. The court shall take the parenting plans into consideration when determining parenting time and responsibilities at trial or hearing.
(h) The court may consider, consistent with the best interests of the child as defined in Section 602.7 of this Act, whether to award to one or both of the parties the right of first refusal in accordance with Section 602.3 of this Act.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17.)
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