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92_SB0433eng SB433 Engrossed SRS92SB0019JJap 1 AN ACT concerning family law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Illinois Marriage and Dissolution of 5 Marriage Act is amended by changing Section 503 as follows: 6 (750 ILCS 5/503) (from Ch. 40, par. 503) 7 Sec. 503. Disposition of property. 8 (a) For purposes of this Act, "marital property" means 9 all property acquired by either spouse subsequent to the 10 marriage, except the following, which is known as 11 "non-marital property": 12 (1) property acquired by gift, legacy or descent; 13 (2) property acquired in exchange for property 14 acquired before the marriage or in exchange for property 15 acquired by gift, legacy or descent; 16 (3) property acquired by a spouse after a judgment 17 of legal separation; 18 (4) property excluded by valid agreement of the 19 parties; 20 (5) any judgment or property obtained by judgment 21 awarded to a spouse from the other spouse; 22 (6) property acquired before the marriage; 23 (7) the increase in value of property acquired by a 24 method listed in paragraphs (1) through (6) of this 25 subsection, irrespective of whether the increase results 26 from a contribution of marital property, non-marital 27 property, the personal effort of a spouse, or otherwise, 28 subject to the right of reimbursement provided in 29 subsection (c) of this Section; and 30 (8) income from property acquired by a method 31 listed in paragraphs (1) through (7) of this subsection SB433 Engrossed -2- SRS92SB0019JJap 1 if the income is not attributable to the personal effort 2 of a spouse. 3 (b)(1) For purposes of distribution of property pursuant 4 to 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 (2) For purposes of distribution of property pursuant to 16 this Section, all pension benefits (including pension 17 benefits under the Illinois Pension Code) acquired by either 18 spouse after the marriage and before a judgment of 19 dissolution of marriage or declaration of invalidity of the 20 marriage are presumed to be marital property, regardless of 21 which spouse participates in the pension plan. The 22 presumption that these pension benefits are marital property 23 is overcome by a showing that the pension benefits were 24 acquired by a method listed in subsection (a) of this 25 Section. The right to a division of pension benefits in just 26 proportions under this Section is enforceable under Section 27 1-119 of the Illinois Pension Code. 28 The value of pension benefits in a retirement system 29 subject to the Illinois Pension Code shall be determined in 30 accordance with the valuation procedures established by the 31 retirement system. 32 The recognition of pension benefits as marital property 33 and the division of those benefits pursuant to a Qualified 34 Illinois Domestic Relations Order shall not be deemed to be a SB433 Engrossed -3- SRS92SB0019JJap 1 diminishment, alienation, or impairment of those benefits. 2 The division of pension benefits is an allocation of property 3 in which each spouse has a species of common ownership. 4 (3) For purposes of distribution of property under this 5 Section, all stock options granted to either spouse after the 6 marriage and before a judgment of dissolution of marriage or 7 declaration of invalidity of marriage, whether vested or 8 non-vested or whether their value is ascertainable, are 9 presumed to be marital property. This presumption of marital 10 property is overcome by a showing that the stock options were 11 acquired by a method listed in subsection (a) of this 12 Section. The court shall allocate stock options between the 13 parties at the time of the judgment of dissolution of 14 marriage or declaration of invalidity of marriage recognizing 15 that the value of the stock options may not be then 16 determinable and that the actual division of the options may 17 not occur until a future date. In making the allocation 18 between the parties, the court shall consider, in addition to 19 the factors set forth in subsection (d) of this Section, the 20 following: 21 (i) All circumstances underlying the grant of the 22 stock option including but not limited to whether the 23 grant was for past, present, or future efforts, or any 24 combination thereof. 25 (ii) The length of time from the grant of the 26 option to the time the option is exercisable. 27 (c) Commingled marital and non-marital property shall be 28 treated in the following manner, unless otherwise agreed by 29 the spouses: 30 (1) When marital and non-marital property are 31 commingled by contributing one estate of property into 32 another resulting in a loss of identity of the 33 contributed property, the classification of the 34 contributed property is transmuted to the estate SB433 Engrossed -4- SRS92SB0019JJap 1 receiving the contribution, subject to the provisions of 2 paragraph (2) of this subsection; provided that if 3 marital and non-marital property are commingled into 4 newly acquired property resulting in a loss of identity 5 of the contributing estates, the commingled property 6 shall be deemed transmuted to marital property, subject 7 to the provisions of paragraph (2) of this subsection. 8 (2) When one estate of property makes a 9 contribution to another estate of property, or when a 10 spouse contributes personal effort to non-marital 11 property, the contributing estate shall be reimbursed 12 from the estate receiving the contribution 13 notwithstanding any transmutation; provided, that no such 14 reimbursement shall be made with respect to a 15 contribution which is not retraceable by clear and 16 convincing evidence, or was a gift, or, in the case of a 17 contribution of personal effort of a spouse to 18 non-marital property, unless the effort is significant 19 and results in substantial appreciation of the 20 non-marital property. Personal effort of a spouse shall 21 be deemed a contribution by the marital estate. The 22 court may provide for reimbursement out of the marital 23 property to be divided or by imposing a lien against the 24 non-marital property which received the contribution. 25 (d) 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 which lacked personal jurisdiction over the absent 29 spouse or lacked jurisdiction to dispose of the property, the 30 court shall assign each spouse's non-marital property to that 31 spouse. It also shall divide the marital property without 32 regard to marital misconduct in just proportions considering 33 all relevant factors, including: 34 (1) the contribution of each party to the SB433 Engrossed -5- SRS92SB0019JJap 1 acquisition, preservation, or increase or decrease in 2 value of the marital or non-marital property, including 3 the contribution of a spouse as a homemaker or to the 4 family unit; 5 (2) the dissipation by each party of the marital or 6 non-marital property; 7 (3) the value of the property assigned to each 8 spouse; 9 (4) the duration of the marriage; 10 (5) the relevant economic circumstances of each 11 spouse when the division of property is to become 12 effective, including the desirability of awarding the 13 family home, or the right to live therein for reasonable 14 periods, to the spouse having custody of the children; 15 (6) any obligations and rights arising from a prior 16 marriage of either party; 17 (7) any antenuptial agreement of the parties; 18 (8) the age, health, station, occupation, amount 19 and sources of income, vocational skills, employability, 20 estate, liabilities, and needs of each of the parties; 21 (9) the custodial provisions for any children; 22 (10) whether the apportionment is in lieu of or in 23 addition to maintenance; 24 (11) the reasonable opportunity of each spouse for 25 future acquisition of capital assets and income; and 26 (12) the tax consequences of the property division 27 upon the respective economic circumstances of the 28 parties. 29 (e) Each spouse has a species of common ownership in the 30 marital property which vests at the time dissolution 31 proceedings are commenced and continues only during the 32 pendency of the action. Any such interest in marital 33 property shall not encumber that property so as to restrict 34 its transfer, assignment or conveyance by the title holder SB433 Engrossed -6- SRS92SB0019JJap 1 unless such title holder is specifically enjoined from making 2 such transfer, assignment or conveyance. 3 (f) In a proceeding for dissolution of marriage or 4 declaration of invalidity of marriage or in a proceeding for 5 disposition of property following dissolution of marriage by 6 a court that lacked personal jurisdiction over the absent 7 spouse or lacked jurisdiction to dispose of the property, the 8 court, in determining the value of the marital and 9 non-marital property for purposes of dividing the property, 10 shall value the property as of the date of trial or some 11 other date as close to the date of trial as is practicable. 12 (g) The court if necessary to protect and promote the 13 best interests of the children may set aside a portion of the 14 jointly or separately held estates of the parties in a 15 separate fund or trust for the support, maintenance, 16 education, and general welfare of any minor, dependent, or 17 incompetent child of the parties. In making a determination 18 under this subsection, the court may consider, among other 19 things, the conviction of a party of any of the offenses set 20 forth in Section 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-13, 21 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 22 if the victim is a child of one or both of the parties, and 23 there is a need for, and cost of, care, healing and 24 counseling for the child who is the victim of the crime. 25 (h) Unless specifically directed by a reviewing court, 26 or upon good cause shown, the court shall not on remand 27 consider any increase or decrease in the value of any 28 "marital" or "non-marital" property occurring since the 29 assessment of such property at the original trial or hearing, 30 but shall use only that assessment made at the original trial 31 or hearing. 32 (i) The court may make such judgments affecting the 33 marital property as may be just and may enforce such 34 judgments by ordering a sale of marital property, with SB433 Engrossed -7- SRS92SB0019JJap 1 proceeds therefrom to be applied as determined by the court. 2 (j) After proofs have closed in the final hearing on all 3 other issues between the parties (or in conjunction with the 4 final hearing, if all parties so stipulate) and before 5 judgment is entered, a party's petition for contribution to 6 fees and costs incurred in the proceeding shall be heard and 7 decided, in accordance with the following provisions: 8 (1) A petition for contribution, if not filed 9 before the final hearing on other issues between the 10 parties, shall be filed no later than 30 days after the 11 closing of proofs in the final hearing or within such 12 other period as the court orders. 13 (2) Any award of contribution to one party from the 14 other party shall be based on the criteria for division 15 of marital property under this Section 503 and, if 16 maintenance has been awarded, on the criteria for an 17 award of maintenance under Section 504. 18 (3) The filing of a petition for contribution shall 19 not be deemed to constitute a waiver of the 20 attorney-client privilege between the petitioning party 21 and current or former counsel; and such a waiver shall 22 not constitute a prerequisite to a hearing for 23 contribution. If either party's presentation on 24 contribution, however, includes evidence within the scope 25 of the attorney-client privilege, the disclosure or 26 disclosures shall be narrowly construed and shall not be 27 deemed by the court to constitute a general waiver of the 28 privilege as to matters beyond the scope of the 29 presentation. 30 (4) No finding on which a contribution award is 31 based or denied shall be asserted against counsel or 32 former counsel for purposes of any hearing under 33 subsection (c) or (e) of Section 508. 34 (5) A contribution award (payable to either the SB433 Engrossed -8- SRS92SB0019JJap 1 petitioning party or the party's counsel, or jointly, as 2 the court determines) may be in the form of either a set 3 dollar amount or a percentage of fees and costs (or a 4 portion of fees and costs) to be subsequently agreed upon 5 by the petitioning party and counsel or, alternatively, 6 thereafter determined in a hearing pursuant to subsection 7 (c) of Section 508 or previously or thereafter determined 8 in an independent proceeding under subsection (e) of 9 Section 508. 10 (6) The changes to this Section 503 made by this 11 amendatory Act of 1996 apply to cases pending on or after 12 June 1, 1997, except as otherwise provided in Section 13 508. 14 (Source: P.A. 90-731, eff. 7-1-99; 91-445, eff. 1-1-00.)