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90_HB1612sam001
LRB9003937WHmgam
1 AMENDMENT TO HOUSE BILL 1612
2 AMENDMENT NO. . Amend House Bill 1612 on page 1, by
3 replacing lines 1 and 2 with the following:
4 "AN ACT in relation to marital property, amending named
5 Acts."; and
6 on page 1, by replacing lines 5 and 6 with the following:
7 "Section 5. The Illinois Pension Code is amended by
8 adding Section 1-118 as follows:
9 (40 ILCS 5/1-118 new)
10 Sec. 1-118. Qualified Illinois Domestic Relations
11 Orders.
12 (a) For the purposes of this Section:
13 (1) "Alternate payee" means the spouse, former
14 spouse, child, or other dependent of a member, as
15 designated in a QILDRO.
16 (2) "Benefit", when used in a general sense without
17 specifying the type of benefit, includes any payment of
18 money by a retirement system to a member or other
19 beneficiary, including the payment of a refund of
20 contributions.
21 (3) "Death benefit" means any nonperiodic benefit
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1 payable upon the death of a member to the surviving
2 spouse of the member or to the member's estate or
3 designated beneficiary, including any refund of
4 contributions following the member's death, whether or
5 not the benefit is so called under the applicable Article
6 of this Code.
7 (4) "Disability benefit" means any periodic or
8 nonperiodic benefit payable to a disabled member based on
9 occupational or nonoccupational disability or disease,
10 including any periodic or nonperiodic increases in the
11 benefit, whether or not the benefit is so called under
12 the applicable Article of this Code.
13 (5) "Member" means any person who participates in
14 or has service credits in a retirement system, including
15 a person who is receiving or is eligible to receive a
16 retirement or disability benefit, without regard to
17 whether the person has withdrawn from service.
18 (6) "Member's refund" means a return of all or a
19 portion of a member's contributions that is elected by
20 the member (or provided by operation of law) and is
21 payable before the member's death.
22 (7) "Qualified Illinois Domestic Relations Order"
23 or "QILDRO" means an order that creates or recognizes the
24 existence of an alternate payee's right to receive all or
25 a portion of a member's accrued benefits in a retirement
26 system, is issued pursuant to this Section and Section
27 503(b)(2) of the Illinois Marriage and Dissolution of
28 Marriage Act, and meets the requirements of this Section.
29 A QILDRO is not the same as a qualified domestic
30 relations order or QDRO issued pursuant to Section 414(p)
31 of the Internal Revenue Code of 1986. The requirements
32 of paragraphs (2) and (3) of that Section do not apply to
33 orders issued under this Section and shall not be deemed
34 a guide to the interpretation of this Section; a QILDRO
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1 is intended to be a domestic relations order within the
2 meaning of paragraph (11) of that Section.
3 (8) "Regular payee" means the person to whom a
4 benefit would be payable in the absence of an effective
5 QILDRO.
6 (9) "Retirement benefit" means any periodic or
7 nonperiodic benefit payable to a retired member based on
8 age or service, or on the amounts accumulated to the
9 credit of the member for retirement purposes, including
10 any periodic or nonperiodic increases in the benefit,
11 whether or not the benefit is so called under the
12 applicable Article of this Code.
13 (10) "Retirement system" or "system" means any
14 retirement system, pension fund, or other public employee
15 retirement benefit plan that is maintained or established
16 under any of Articles 2 through 18 of this Code.
17 (11) "Surviving spouse" means the spouse of a
18 member at the member's death or a former spouse of the
19 member who is entitled to a specific accrued benefit
20 under a QILDRO.
21 (12) "Surviving spouse benefit" means any periodic
22 benefit payable to the surviving spouse of a deceased
23 member, including any periodic or nonperiodic increases
24 in the benefit, but excluding any portion of such a
25 benefit payable on behalf of or by reason of the
26 existence of surviving children of the member, whether or
27 not the benefit is so called under the applicable Article
28 of this Code.
29 (b) (1) A court of competent jurisdiction in a
30 proceeding for declaration of invalidity of marriage, legal
31 separation, or dissolution of marriage that provides for the
32 distribution of property, or any proceeding to amend or
33 enforce such a property distribution, may order that all or
34 any part of any (i) retirement benefit, (ii) member's refund
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1 payable to or on behalf of the member, (iii) death benefit
2 payable to the member's surviving spouse, estate, or
3 designated beneficiary, or (iv) a surviving spouse benefit,
4 be instead paid by the retirement system to a designated
5 alternate payee.
6 (2) An order issued under this Section provides only for
7 the diversion to an alternate payee of certain benefits
8 otherwise payable by the retirement system under the
9 provisions of this Code. In no event shall the existence of
10 a QILDRO cause the retirement system to pay any benefit, or
11 any amount of benefit, to an alternate payee that would not
12 have been payable by the system to a regular payee in the
13 absence of the QILDRO.
14 (3) A QILDRO shall not affect the vesting, accrual or
15 amount of any benefit, nor the date or conditions upon which
16 any benefit becomes payable, nor the right of the member or
17 the member's survivors to make any election otherwise
18 authorized under this Code, except as provided in subsections
19 (j) and (k).
20 (4) A QILDRO shall not apply to nor affect the payment
21 of any disability benefit, life insurance benefit, or health
22 insurance benefit.
23 (c) (1) A QILDRO must contain the name, residence
24 address and social security number of the member and of the
25 alternate payee, and must identify the retirement system to
26 which it is directed and the court issuing the order.
27 (2) A QILDRO must specify each benefit to which it
28 applies, and it must specify the amount of the benefit to be
29 paid to the alternate payee, which in the case of a
30 nonperiodic benefit shall be expressed as a dollar amount,
31 and in the case of a periodic benefit shall be expressed as a
32 dollar amount per month.
33 (3) With respect to each benefit to which it applies, a
34 QILDRO must specify when the order will take effect. In the
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1 case of a periodic benefit that is being paid at the time the
2 order is accepted, a QILDRO shall take effect immediately or
3 on a specified later date; if it takes effect immediately, it
4 shall become effective on the first benefit payment date
5 occurring at least 30 days after the order is accepted by the
6 retirement system. In the case of any other benefit, a
7 QILDRO shall take effect when the benefit becomes payable.
8 However, in no event shall a QILDRO apply to any benefit paid
9 by the retirement system before or within 30 days after the
10 order is accepted, except as provided in subsection (e). A
11 retirement system may adopt rules to prorate the amount of
12 the first and final periodic payments to an alternate payee.
13 (4) A QILDRO must also contain any provisions required
14 under subsection (o) or (q).
15 (d) (1) An order issued under this Section shall not be
16 implemented unless a certified copy of the order has been
17 filed with the retirement system, and the system has accepted
18 the order.
19 (2) The retirement system shall examine the order and
20 either accept it or reject it within 90 days after receiving
21 the order. If the system finds that the order meets the
22 requirements of this Section, it shall accept the order and
23 promptly notify the member and the alternate payee by
24 certified mail of its acceptance of the order. If the system
25 rejects the order, the system shall promptly notify the
26 court, the member and the alternate payee by certified mail
27 of its rejection of the order. The notice of rejection shall
28 include a specific explanation of the manner in which the
29 order fails to comply with the requirements of this Section.
30 Upon receipt of an amended order curing the defects
31 identified in the notice of rejection, the system shall
32 accept the amended order within 14 days and shall promptly
33 notify the member and the alternate payee by certified mail
34 of its acceptance of the order.
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1 (3) The final decision to accept or reject an order
2 under this Section may be made by any authorized employee of
3 the retirement system and does not require an action by the
4 board of the retirement system or a hearing.
5 (4) Neither the retirement system, nor its board, nor
6 any of its employees shall incur any liability or be subject
7 to any sanction by the court for the rejection of an order
8 under this Section made in good faith.
9 (5) Neither the retirement system, nor its board, nor
10 any of its employees shall be liable to the member, the
11 regular payee, or any other person for any amount of a
12 benefit that is either (i) paid in good faith to an alternate
13 payee in accordance with an accepted QILDRO, or (ii) withheld
14 or not withheld under subsection (e).
15 (e) If a retirement system rejects an order that applies
16 to a benefit that is payable or being paid by the system at
17 the time the order is rejected, and if the system is able to
18 identify the affected member and benefit and the amount of
19 the benefit payable to the alternate payee under the rejected
20 order, then the system shall withhold payment of the amount
21 of the benefit that would have been payable to the alternate
22 payee if the rejected order had instead been accepted. Such
23 withholding, however, shall not be effected in either of the
24 following situations: (i) the rejected order specifies a
25 percentage instead of a dollar amount; or (ii) the rejected
26 order relates to a member from whom a consent is required
27 under subsection (n), but no such consent has been submitted
28 to the system. Any amounts withheld shall be held by the
29 system for the alternate payee pending clarification of the
30 order by the court. If an amended order is not accepted by
31 the system within 180 days from the date of rejection of the
32 initial order, the system shall pay the benefit and the
33 amounts held to the regular payee, and the interest of the
34 alternate payee in any amounts so paid shall be extinguished.
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1 Amounts held by a retirement system under this subsection
2 shall not bear interest.
3 (f) (1) Each alternate payee is responsible for
4 maintaining a current residence address on file with the
5 retirement system. The retirement system shall have no duty
6 to attempt to locate any alternate payee by any means other
7 than sending written notice to the last known address of the
8 alternate payee on file with the system.
9 (2) In the event that the system cannot locate an
10 alternate payee when a benefit becomes payable, the system
11 shall hold the amount of the benefit payable to the alternate
12 payee and make payment to the alternate payee if he or she is
13 located within the following 180 days. If the alternate
14 payee has not been located within 180 days from the date the
15 benefit becomes payable, the system shall pay the benefit and
16 the amounts held to the regular payee. If the alternate
17 payee is subsequently located, the system shall thereupon
18 implement the QILDRO, but the interest of the alternate payee
19 in any amounts already paid to the regular payee shall be
20 extinguished. Amounts held under this subsection shall not
21 bear interest.
22 (g) (1) If the amount of a benefit that is specified in
23 a QILDRO for payment to an alternate payee exceeds the
24 actual amount of that benefit payable by the retirement
25 system, the excess shall be disregarded. The retirement
26 system shall have no liability to any alternate payee or any
27 other person for the disregarded amounts.
28 (2) In the event of multiple QILDRO's against a member,
29 the retirement system shall honor all of the QILDRO's to the
30 extent possible. However, if the total amount of a benefit
31 to be paid to alternate payees under all QILDRO's in effect
32 against the member exceeds the actual amount of that benefit
33 payable by the system, the QILDRO's shall be satisfied in the
34 order of their acceptance by the system until the amount of
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1 the benefit is exhausted, and shall not be adjusted pro rata.
2 Any amounts that cannot be paid due to exhaustion of the
3 benefit shall remain unpaid, and the retirement system shall
4 have no liability to any alternate payee or any other person
5 for such amounts.
6 (3) A modification of a QILDRO shall be subject to
7 acceptance or rejection by the retirement system under
8 subsection (d) in the same manner as a new QILDRO. A
9 modification that does not increase the amount of any benefit
10 payable to the alternate payee, and does not expand the
11 QILDRO to affect any benefit not affected by the unmodified
12 QILDRO, does not affect the priority of payment under
13 subdivision (g)(2); the priority of payment of a QILDRO that
14 has been modified to increase the amount of any benefit
15 payable to the alternate payee, or to expand the QILDRO to
16 affect a benefit not affected by the unmodified QILDRO, shall
17 be based on the acceptance date of the modification of the
18 QILDRO.
19 (h) (1) Upon the death of the alternate payee under a
20 QILDRO, the QILDRO shall expire and cease to be effective,
21 and in the absence of another QILDRO, the right to receive
22 any affected benefit shall revert to the regular payee.
23 (2) All QILDRO's relating to a member's participation in
24 a particular retirement system shall expire and cease to be
25 effective upon the issuance of a member's refund that
26 terminates the member's participation in that retirement
27 system, without regard to whether the refund was paid to the
28 member or to an alternate payee under a QILDRO. An expired
29 QILDRO shall not be automatically revived by any subsequent
30 return by the member to service under that retirement system.
31 (i) Within 45 days after receiving a subpoena from any
32 party to a proceeding for declaration of invalidity of
33 marriage, legal separation, or dissolution of marriage in
34 which a QILDRO may be issued, or after receiving a request
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1 from the member, a retirement system shall issue a statement
2 of a member's accumulated contributions, accrued benefits and
3 other interests in the plan administered by the retirement
4 system, and of any relevant procedures, rules or
5 modifications to the model QILDRO form that have been adopted
6 by the retirement system. In no event shall the retirement
7 system be required to furnish to any person an actuarial
8 opinion as to the present value of the member's benefits or
9 other interests. The papers, entries, and records, or parts
10 thereof, of any retirement system may be proved by a copy
11 thereof, certified under the signature of the secretary of
12 the system or other duly appointed keeper of the records of
13 the system and the corporate seal, if any.
14 (j) In a retirement system in which a member or
15 beneficiary is required to apply to the system for payment of
16 a benefit, the required application may be made by an
17 alternate payee who is entitled to all of that benefit under
18 an accepted QILDRO, provided that all other qualifications
19 and requirements have been met. However, the alternate payee
20 may not make the required application for a member's refund
21 or a retirement benefit if the member is in active service or
22 below the minimum age for receiving an undiscounted
23 retirement annuity in the retirement system that has accepted
24 the QILDRO or in any other retirement system in which the
25 member has creditable service and in which the member's
26 rights under the Retirement Systems Reciprocal Act would be
27 affected as a result of the alternate payee's application for
28 a member's refund or retirement benefit.
29 (k) (1) So long as there is an accepted QILDRO relating
30 to a member's retirement benefit, the affected member may not
31 elect a form of payment that has the effect of diminishing
32 the amount of the payment to which any alternate payee is
33 entitled, unless the alternate payee has consented to the
34 election in writing and this consent has been filed with the
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1 retirement system.
2 (2) If a member attempts to make an election prohibited
3 under subdivision (k)(1), the retirement system shall reject
4 the election and advise the member of the need to obtain the
5 alternate payee's consent.
6 (3) If a retirement system discovers that it has
7 mistakenly allowed an election prohibited under subdivision
8 (k)(1), it shall thereupon disallow that election and
9 recalculate any benefits affected thereby. If the system
10 determines that an amount paid to a regular payee should have
11 been paid to an alternate payee, the system shall, if
12 possible, recoup the amounts as provided in subsection (l) of
13 this Section.
14 (l) In the event that a regular payee or an alternate
15 payee is overpaid, the retirement system shall recoup the
16 amounts by deducting the overpayment from future payments and
17 making payment to the other payee. The system may make
18 deductions for recoupment over a period of time in the same
19 manner as is provided by law or regulation for the recoupment
20 of other amounts incorrectly disbursed by the system in
21 instances not involving a QILDRO. The retirement system
22 shall incur no liability to either the alternate payee or the
23 regular payee as a result of any payment made in good faith,
24 regardless of whether the system is able to accomplish
25 recoupment.
26 (m) (1) A retirement system that has, before the
27 effective date of this Section, received and implemented a
28 domestic relations order that directs payment of a benefit to
29 a person other than the regular payee may continue to
30 implement that order, and shall not be liable to the regular
31 payee for any amounts paid in good faith to that other person
32 in accordance with the order.
33 (2) A domestic relations order directing payment of a
34 benefit to a person other than the regular payee that was
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1 issued by a court but not implemented by a retirement system
2 prior to the effective date of this Section shall be void.
3 However, a person who is the beneficiary or alternate payee
4 of a domestic relations order that is rendered void under
5 this subsection may petition the court that issued the order
6 for an amended order that complies with this Section.
7 (n) (1) In accordance with Article 13, Section 5 of the
8 Illinois Constitution, which prohibits the impairment or
9 diminishment of benefits granted under this Code, a QILDRO
10 issued against a member of a retirement system established
11 under an Article of this Code that exempts the payment of
12 benefits or refunds from attachment, garnishment, judgment or
13 other legal process shall not be effective without the
14 written consent of the member if the member began
15 participating in the retirement system on or before the
16 effective date of this Section. That consent must specify
17 the retirement system, the court case number, and the names
18 and social security numbers of the member and the alternate
19 payee. The consent must accompany the QILDRO when it is
20 filed with the retirement system, and must be in
21 substantially the following form:
22 CONSENT TO ISSUANCE OF QILDRO
23 Court Case Number: ....................
24 Member's Social Security Number: ........................
25 Alternate payee's Social Security Number: ...............
26 I, (name), a member of the (retirement system), hereby
27 consent to the issuance of a Qualified Illinois Domestic
28 Relations Order. I understand that under the Order, certain
29 benefits that would otherwise be payable to me, or to my
30 surviving spouse or estate, will instead be payable to (name
31 of alternate payee). I also understand that my right to
32 elect certain forms of payment of my retirement benefit or
33 member's refund may be limited as a result of the Order.
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1 DATED:.......................
2 SIGNED:......................
3 (2) A member's consent to the issuance of a QILDRO shall
4 be irrevocable, and shall apply to any QILDRO that pertains
5 to the alternate payee and retirement system named in the
6 consent.
7 (o) An order issued under this Section may be rejected
8 by a retirement system if it is not substantially in the
9 following form (omitting any provisions that are not
10 applicable):
11 QUALIFIED ILLINOIS DOMESTIC RELATIONS ORDER
12 THIS CAUSE coming before the Court for the purpose of the
13 entry of a Qualified Illinois Domestic Relations Order under
14 the provisions of Section 1-118 of the Illinois Pension Code,
15 the Court having jurisdiction over the parties and the
16 subject matter hereof; the Court finding that one of the
17 parties to this proceeding is a member of a retirement system
18 subject to Section 1-118 of the Illinois Pension Code, this
19 Order is entered to implement a division of that party's
20 interest in the retirement system; and the Court being fully
21 advised;
22 IT IS HEREBY ORDERED AS FOLLOWS:
23 (1) The definitions and other provisions of Section
24 1-118 of the Illinois Pension Code are adopted by reference
25 and made a part of this Order.
26 (2) Identification of Retirement System and parties:
27 Retirement System: (name and address)
28 Member: (name, residence address and social security
29 number)
30 Alternate payee: (name, residence address and social
31 security number)
32 (3) The Retirement System shall pay the indicated
33 amounts of the following specified benefits to the alternate
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1 payee under the following terms and conditions:
2 (i) Of the member's retirement benefit, the
3 Retirement System shall pay to the alternate payee
4 $...... per month, beginning (if the benefit is already
5 being paid, either immediately or on a specified later
6 date; otherwise, on the date the retirement benefit
7 commences), and ending upon the termination of the
8 retirement benefit or the death of the alternate payee,
9 whichever occurs first.
10 (ii) Of any death benefit payable upon the death of
11 the member, the Retirement System shall pay to the
12 alternate payee $...... when the death benefit becomes
13 payable.
14 (iii) Of any member's refund that becomes payable,
15 the Retirement System shall pay to the alternate payee
16 $...... when the member's refund becomes payable.
17 (iv) Of any surviving spouse benefit that becomes
18 payable upon the death of the member, the Retirement
19 System shall pay to the alternate payee $...... per month
20 when the benefit becomes payable.
21 (4) In accordance with subsection (k) of Section 1-118
22 of the Illinois Pension Code, so long as this QILDRO is in
23 effect, the member may not elect a form of payment of the
24 retirement benefit that has the effect of diminishing the
25 amount of the payment to which the alternate payee is
26 entitled, unless the alternate payee has consented to the
27 election in writing and this consent has been filed with the
28 retirement system.
29 (5) If the member began participating in the Retirement
30 System before the effective date of this Section, this Order
31 shall not take effect unless accompanied by the written
32 consent of the member as required under subsection (n) of
33 Section 1-118 of the Illinois Pension Code.
34 (6) The Court retains jurisdiction to modify this Order
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1 to conform it to the requirements imposed by Section 1-118 of
2 the Illinois Pension Code and any rules adopted by the
3 Retirement System under that Section.
4 (7) The Court reserves jurisdiction to modify this
5 Order.
6 DATED:.......................
7 SIGNED:......................
8 (p) (1) The Administrative Review Law and the rules
9 adopted pursuant thereto shall apply to and govern all
10 proceedings for the judicial review of final administrative
11 decisions of a board of trustees of a retirement system with
12 respect to the administration of an accepted QILDRO.
13 (2) A court in Illinois that has issued a QILDRO shall
14 retain jurisdiction of all issues relating to the acceptance,
15 rejection, or modification of the QILDRO. The Administrative
16 Review Law and the rules adopted pursuant thereto shall
17 govern and apply to all proceedings for judicial review of
18 final administrative decisions of the board of trustees of
19 the retirement system concerning the acceptance or rejection
20 of a QILDRO issued by a court outside the State of Illinois.
21 (3) The term "administrative decision" is defined as in
22 Section 3-101 of the Code of Civil Procedure. The venue for
23 review under the Administrative Review Law shall be the same
24 as is provided by law for judicial review of other
25 administrative decisions of the retirement system.
26 (q) (1) Each retirement system may adopt any procedures
27 or rules that it deems necessary or useful for the
28 implementation of this Section.
29 (2) Each retirement system may by rule modify the model
30 QILDRO form provided in subsection (o) or require that
31 additional information be included in QILDRO's presented to
32 the system, as may be necessary to meet the needs of the
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1 retirement system.
2 Section 10. The Illinois Marriage and Dissolution of
3 Marriage Act is amended by changing Sections 452 and 503 as
4 follows:"; and
5 on page 2, by inserting after line 16 the following:
6 "(750 ILCS 5/503) (from Ch. 40, par. 503)
7 (Text of Section before amendment by P.A. 89-712)
8 Sec. 503. Disposition of property.
9 (a) For purposes of this Act, "marital property" means
10 all property acquired by either spouse subsequent to the
11 marriage, except the following, which is known as
12 "non-marital property":
13 (1) property acquired by gift, legacy or descent;
14 (2) property acquired in exchange for property
15 acquired before the marriage or in exchange for property
16 acquired by gift, legacy or descent;
17 (3) property acquired by a spouse after a judgment
18 of legal separation;
19 (4) property excluded by valid agreement of the
20 parties;
21 (5) any judgment or property obtained by judgment
22 awarded to a spouse from the other spouse;
23 (6) property acquired before the marriage;
24 (7) the increase in value of property acquired by a
25 method listed in paragraphs (1) through (6) of this
26 subsection, irrespective of whether the increase results
27 from a contribution of marital property, non-marital
28 property, the personal effort of a spouse, or otherwise,
29 subject to the right of reimbursement provided in
30 subsection (c) of this Section; and
31 (8) income from property acquired by a method
32 listed in paragraphs (1) through (7) of this subsection
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1 if the income is not attributable to the personal effort
2 of a spouse.
3 (b) For purposes of distribution of property pursuant to
4 this Section, all property acquired by either spouse after
5 the marriage and before a judgment of dissolution of marriage
6 or declaration of invalidity of marriage, including
7 non-marital property transferred into some form of
8 co-ownership between the spouses, is presumed to be marital
9 property, regardless of whether title is held individually or
10 by the spouses in some form of co-ownership such as joint
11 tenancy, tenancy in common, tenancy by the entirety, or
12 community property. The presumption of marital property is
13 overcome by a showing that the property was acquired by a
14 method listed in subsection (a) of this Section.
15 (c) Commingled marital and non-marital property shall be
16 treated in the following manner, unless otherwise agreed by
17 the spouses:
18 (1) When marital and non-marital property are
19 commingled by contributing one estate of property into
20 another resulting in a loss of identity of the
21 contributed property, the classification of the
22 contributed property is transmuted to the estate
23 receiving the contribution, subject to the provisions of
24 paragraph (2) of this subsection; provided that if
25 marital and non-marital property are commingled into
26 newly acquired property resulting in a loss of identity
27 of the contributing estates, the commingled property
28 shall be deemed transmuted to marital property, subject
29 to the provisions of paragraph (2) of this subsection.
30 (2) When one estate of property makes a
31 contribution to another estate of property, or when a
32 spouse contributes personal effort to non-marital
33 property, the contributing estate shall be reimbursed
34 from the estate receiving the contribution
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1 notwithstanding any transmutation; provided, that no such
2 reimbursement shall be made with respect to a
3 contribution which is not retraceable by clear and
4 convincing evidence, or was a gift, or, in the case of a
5 contribution of personal effort of a spouse to
6 non-marital property, unless the effort is significant
7 and results in substantial appreciation of the
8 non-marital property. Personal effort of a spouse shall
9 be deemed a contribution by the marital estate. The
10 court may provide for reimbursement out of the marital
11 property to be divided or by imposing a lien against the
12 non-marital property which received the contribution.
13 (d) In a proceeding for dissolution of marriage or
14 declaration of invalidity of marriage, or in a proceeding for
15 disposition of property following dissolution of marriage by
16 a court which lacked personal jurisdiction over the absent
17 spouse or lacked jurisdiction to dispose of the property, the
18 court shall assign each spouse's non-marital property to that
19 spouse. It also shall divide the marital property without
20 regard to marital misconduct in just proportions considering
21 all relevant factors, including:
22 (1) the contribution of each party to the
23 acquisition, preservation, or increase or decrease in
24 value of the marital or non-marital property, including
25 the contribution of a spouse as a homemaker or to the
26 family unit;
27 (2) the dissipation by each party of the marital or
28 non-marital property;
29 (3) the value of the property assigned to each
30 spouse;
31 (4) the duration of the marriage;
32 (5) the relevant economic circumstances of each
33 spouse when the division of property is to become
34 effective, including the desirability of awarding the
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1 family home, or the right to live therein for reasonable
2 periods, to the spouse having custody of the children;
3 (6) any obligations and rights arising from a prior
4 marriage of either party;
5 (7) any antenuptial agreement of the parties;
6 (8) the age, health, station, occupation, amount
7 and sources of income, vocational skills, employability,
8 estate, liabilities, and needs of each of the parties;
9 (9) the custodial provisions for any children;
10 (10) whether the apportionment is in lieu of or in
11 addition to maintenance;
12 (11) the reasonable opportunity of each spouse for
13 future acquisition of capital assets and income; and
14 (12) the tax consequences of the property division
15 upon the respective economic circumstances of the
16 parties.
17 (e) Each spouse has a species of common ownership in the
18 marital property which vests at the time dissolution
19 proceedings are commenced and continues only during the
20 pendency of the action. Any such interest in marital
21 property shall not encumber that property so as to restrict
22 its transfer, assignment or conveyance by the title holder
23 unless such title holder is specifically enjoined from making
24 such transfer, assignment or conveyance.
25 (f) In a proceeding for dissolution of marriage or
26 declaration of invalidity of marriage or in a proceeding for
27 disposition of property following dissolution of marriage by
28 a court that lacked personal jurisdiction over the absent
29 spouse or lacked jurisdiction to dispose of the property, the
30 court, in determining the value of the marital and
31 non-marital property for purposes of dividing the property,
32 shall value the property as of the date of trial or some
33 other date as close to the date of trial as is practicable.
34 (g) The court if necessary to protect and promote the
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1 best interests of the children may set aside a portion of the
2 jointly or separately held estates of the parties in a
3 separate fund or trust for the support, maintenance,
4 education, and general welfare of any minor, dependent, or
5 incompetent child of the parties. In making a determination
6 under this subsection, the court may consider, among other
7 things, the conviction of a party of any of the offenses set
8 forth in Section 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13, 12-14,
9 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if the
10 victim is a child of one or both of the parties, and there is
11 a need for, and cost of, care, healing and counseling for the
12 child who is the victim of the crime.
13 (h) Unless specifically directed by a reviewing court,
14 or upon good cause shown, the court shall not on remand
15 consider any increase or decrease in the value of any
16 "marital" or "non-marital" property occurring since the
17 assessment of such property at the original trial or hearing,
18 but shall use only that assessment made at the original trial
19 or hearing.
20 (i) The court may make such judgments affecting the
21 marital property as may be just and may enforce such
22 judgments by ordering a sale of marital property, with
23 proceeds therefrom to be applied as determined by the court.
24 (Source: P.A. 88-45; 89-428, eff. 12-13-95; 89-462, eff.
25 5-29-96.)
26 (Text of Section after amendment by P.A. 89-712)
27 Sec. 503. Disposition of property.
28 (a) For purposes of this Act, "marital property" means
29 all property acquired by either spouse subsequent to the
30 marriage, except the following, which is known as
31 "non-marital property":
32 (1) property acquired by gift, legacy or descent;
33 (2) property acquired in exchange for property
34 acquired before the marriage or in exchange for property
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1 acquired by gift, legacy or descent;
2 (3) property acquired by a spouse after a judgment
3 of legal separation;
4 (4) property excluded by valid agreement of the
5 parties;
6 (5) any judgment or property obtained by judgment
7 awarded to a spouse from the other spouse;
8 (6) property acquired before the marriage;
9 (7) the increase in value of property acquired by a
10 method listed in paragraphs (1) through (6) of this
11 subsection, irrespective of whether the increase results
12 from a contribution of marital property, non-marital
13 property, the personal effort of a spouse, or otherwise,
14 subject to the right of reimbursement provided in
15 subsection (c) of this Section; and
16 (8) income from property acquired by a method
17 listed in paragraphs (1) through (7) of this subsection
18 if the income is not attributable to the personal effort
19 of a spouse.
20 (b)(1) For purposes of distribution of property pursuant
21 to this Section, all property acquired by either spouse after
22 the marriage and before a judgment of dissolution of marriage
23 or declaration of invalidity of marriage, including
24 non-marital property transferred into some form of
25 co-ownership between the spouses, is presumed to be marital
26 property, regardless of whether title is held individually or
27 by the spouses in some form of co-ownership such as joint
28 tenancy, tenancy in common, tenancy by the entirety, or
29 community property. The presumption of marital property is
30 overcome by a showing that the property was acquired by a
31 method listed in subsection (a) of this Section.
32 (2) For purposes of distribution of property pursuant to
33 this Section, all pension benefits (including pension
34 benefits under the Illinois Pension Code) acquired by either
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1 spouse after the marriage and before a judgment of
2 dissolution of marriage or declaration of invalidity of the
3 marriage are presumed to be marital property, regardless of
4 which spouse participates in the pension plan. The
5 presumption that these pension benefits are marital property
6 is overcome by a showing that the pension benefits were
7 acquired by a method listed in subsection (a) of this
8 Section. The right to a division of pension benefits in just
9 proportions under this Section is enforceable under Section
10 1-118 of the Illinois Pension Code.
11 The value of pension benefits in a retirement system
12 subject to the Illinois Pension Code shall be determined in
13 accordance with the valuation procedures established by the
14 retirement system.
15 The recognition of pension benefits as marital property
16 and the division of those benefits pursuant to a Qualified
17 Illinois Domestic Relations Order shall not be deemed to be a
18 diminishment, alienation, or impairment of those benefits.
19 The division of pension benefits is an allocation of property
20 in which each spouse has a species of common ownership.
21 (c) Commingled marital and non-marital property shall be
22 treated in the following manner, unless otherwise agreed by
23 the spouses:
24 (1) When marital and non-marital property are
25 commingled by contributing one estate of property into
26 another resulting in a loss of identity of the
27 contributed property, the classification of the
28 contributed property is transmuted to the estate
29 receiving the contribution, subject to the provisions of
30 paragraph (2) of this subsection; provided that if
31 marital and non-marital property are commingled into
32 newly acquired property resulting in a loss of identity
33 of the contributing estates, the commingled property
34 shall be deemed transmuted to marital property, subject
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1 to the provisions of paragraph (2) of this subsection.
2 (2) When one estate of property makes a
3 contribution to another estate of property, or when a
4 spouse contributes personal effort to non-marital
5 property, the contributing estate shall be reimbursed
6 from the estate receiving the contribution
7 notwithstanding any transmutation; provided, that no such
8 reimbursement shall be made with respect to a
9 contribution which is not retraceable by clear and
10 convincing evidence, or was a gift, or, in the case of a
11 contribution of personal effort of a spouse to
12 non-marital property, unless the effort is significant
13 and results in substantial appreciation of the
14 non-marital property. Personal effort of a spouse shall
15 be deemed a contribution by the marital estate. The
16 court may provide for reimbursement out of the marital
17 property to be divided or by imposing a lien against the
18 non-marital property which received the contribution.
19 (d) In a proceeding for dissolution of marriage or
20 declaration of invalidity of marriage, or in a proceeding for
21 disposition of property following dissolution of marriage by
22 a court which lacked personal jurisdiction over the absent
23 spouse or lacked jurisdiction to dispose of the property, the
24 court shall assign each spouse's non-marital property to that
25 spouse. It also shall divide the marital property without
26 regard to marital misconduct in just proportions considering
27 all relevant factors, including:
28 (1) the contribution of each party to the
29 acquisition, preservation, or increase or decrease in
30 value of the marital or non-marital property, including
31 the contribution of a spouse as a homemaker or to the
32 family unit;
33 (2) the dissipation by each party of the marital or
34 non-marital property;
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1 (3) the value of the property assigned to each
2 spouse;
3 (4) the duration of the marriage;
4 (5) the relevant economic circumstances of each
5 spouse when the division of property is to become
6 effective, including the desirability of awarding the
7 family home, or the right to live therein for reasonable
8 periods, to the spouse having custody of the children;
9 (6) any obligations and rights arising from a prior
10 marriage of either party;
11 (7) any antenuptial agreement of the parties;
12 (8) the age, health, station, occupation, amount
13 and sources of income, vocational skills, employability,
14 estate, liabilities, and needs of each of the parties;
15 (9) the custodial provisions for any children;
16 (10) whether the apportionment is in lieu of or in
17 addition to maintenance;
18 (11) the reasonable opportunity of each spouse for
19 future acquisition of capital assets and income; and
20 (12) the tax consequences of the property division
21 upon the respective economic circumstances of the
22 parties.
23 (e) Each spouse has a species of common ownership in the
24 marital property which vests at the time dissolution
25 proceedings are commenced and continues only during the
26 pendency of the action. Any such interest in marital
27 property shall not encumber that property so as to restrict
28 its transfer, assignment or conveyance by the title holder
29 unless such title holder is specifically enjoined from making
30 such transfer, assignment or conveyance.
31 (f) In a proceeding for dissolution of marriage or
32 declaration of invalidity of marriage or in a proceeding for
33 disposition of property following dissolution of marriage by
34 a court that lacked personal jurisdiction over the absent
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1 spouse or lacked jurisdiction to dispose of the property, the
2 court, in determining the value of the marital and
3 non-marital property for purposes of dividing the property,
4 shall value the property as of the date of trial or some
5 other date as close to the date of trial as is practicable.
6 (g) The court if necessary to protect and promote the
7 best interests of the children may set aside a portion of the
8 jointly or separately held estates of the parties in a
9 separate fund or trust for the support, maintenance,
10 education, and general welfare of any minor, dependent, or
11 incompetent child of the parties. In making a determination
12 under this subsection, the court may consider, among other
13 things, the conviction of a party of any of the offenses set
14 forth in Section 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13, 12-14,
15 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 if the
16 victim is a child of one or both of the parties, and there is
17 a need for, and cost of, care, healing and counseling for the
18 child who is the victim of the crime.
19 (h) Unless specifically directed by a reviewing court,
20 or upon good cause shown, the court shall not on remand
21 consider any increase or decrease in the value of any
22 "marital" or "non-marital" property occurring since the
23 assessment of such property at the original trial or hearing,
24 but shall use only that assessment made at the original trial
25 or hearing.
26 (i) The court may make such judgments affecting the
27 marital property as may be just and may enforce such
28 judgments by ordering a sale of marital property, with
29 proceeds therefrom to be applied as determined by the court.
30 (j) After proofs have closed in the final hearing on all
31 other issues between the parties (or in conjunction with the
32 final hearing, if all parties so stipulate) and before
33 judgment is entered, a party's petition for contribution to
34 fees and costs incurred in the proceeding shall be heard and
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1 decided, in accordance with the following provisions:
2 (1) A petition for contribution, if not filed
3 before the final hearing on other issues between the
4 parties, shall be filed no later than 30 days after the
5 closing of proofs in the final hearing or within such
6 other period as the court orders.
7 (2) Any award of contribution to one party from the
8 other party shall be based on the criteria for division
9 of marital property under this Section 503 and, if
10 maintenance has been awarded, on the criteria for an
11 award of maintenance under Section 504.
12 (3) The filing of a petition for contribution shall
13 not be deemed to constitute a waiver of the
14 attorney-client privilege between the petitioning party
15 and current or former counsel; and such a waiver shall
16 not constitute a prerequisite to a hearing for
17 contribution. If either party's presentation on
18 contribution, however, includes evidence within the scope
19 of the attorney-client privilege, the disclosure or
20 disclosures shall be narrowly construed and shall not be
21 deemed by the court to constitute a general waiver of the
22 privilege as to matters beyond the scope of the
23 presentation.
24 (4) No finding on which a contribution award is
25 based or denied shall be asserted against counsel or
26 former counsel for purposes of any hearing under
27 subsection (c) or (e) of Section 508.
28 (5) A contribution award (payable to either the
29 petitioning party or the party's counsel, or jointly, as
30 the court determines) may be in the form of either a set
31 dollar amount or a percentage of fees and costs (or a
32 portion of fees and costs) to be subsequently agreed upon
33 by the petitioning party and counsel or, alternatively,
34 thereafter determined in a hearing pursuant to subsection
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1 (c) of Section 508 or previously or thereafter determined
2 in an independent proceeding under subsection (e) of
3 Section 508.
4 (6) The changes to this Section 503 made by this
5 amendatory Act of 1996 apply to cases pending on or after
6 June 1, 1997, except as otherwise provided in Section
7 508.
8 (Source: P.A. 88-45; 89-428, eff. 12-13-95; 89-462, eff.
9 5-29-96; 89-712, eff. 6-1-97.)
10 Section 95. No acceleration or delay. Where this Act
11 makes changes in a statute that is represented in this Act by
12 text that is not yet or no longer in effect (for example, a
13 Section represented by multiple versions), the use of that
14 text does not accelerate or delay the taking effect of (i)
15 the changes made by this Act or (ii) provisions derived from
16 any other Public Act.
17 Section 99. Effective date. This Act takes effect July
18 1, 1998, except that this Section and the provisions changing
19 Section 452 of the Illinois Marriage and Dissolution of
20 Marriage Act take effect January 1, 1998.".