Public Act 93-0148
HB2863 Enrolled LRB093 09952 LCB 10203 b
AN ACT concerning child support.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 505 as follows:
(750 ILCS 5/505) (from Ch. 40, par. 505)
(Text of Section before amendment by P.A. 92-876)
Sec. 505. Child support; contempt; penalties.
(a) In a proceeding for dissolution of marriage, legal
separation, declaration of invalidity of marriage, a
proceeding for child support following dissolution of the
marriage by a court which 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 to pay an amount
reasonable and necessary for his support, without regard to
marital misconduct. The duty of support owed to a minor
child includes the obligation to provide for the reasonable
and necessary physical, mental and emotional health needs of
the child.
(1) The Court shall determine the minimum amount of
support by using the following guidelines:
Number of Children Percent of Supporting Party's
Net Income
1 20%
2 28%25%
3 32%
4 40%
5 45%
6 or more 50%
(2) The above guidelines shall be applied in each
case unless the court makes a finding that application of
the guidelines would be inappropriate, after considering
the best interests of the child in light of evidence
including but not limited to one or more of the following
relevant factors:
(a) the financial resources and needs of the
child;
(b) the financial resources and needs of the
custodial parent;
(c) the standard of living the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of
the child, and his educational needs; and
(e) the financial resources and needs of the
non-custodial parent.
If the court deviates from the guidelines, the
court's finding shall state the amount of support that
would have been required under the guidelines, if
determinable. The court shall include the reason or
reasons for the variance from the guidelines.
(3) "Net income" is defined as the total of all
income from all sources, minus the following deductions:
(a) Federal income tax (properly calculated
withholding or estimated payments);
(b) State income tax (properly calculated
withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions
required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual
health/hospitalization insurance premiums;
(g) Prior obligations of support or
maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that
represent reasonable and necessary expenses for the
production of income, medical expenditures necessary
to preserve life or health, reasonable expenditures
for the benefit of the child and the other parent,
exclusive of gifts. The court shall reduce net
income in determining the minimum amount of support
to be ordered only for the period that such payments
are due and shall enter an order containing
provisions for its self-executing modification upon
termination of such payment period.
(4) In cases where the court order provides for
health/hospitalization insurance coverage pursuant to
Section 505.2 of this Act, the premiums for that
insurance, or that portion of the premiums for which the
supporting party is responsible in the case of insurance
provided through an employer's health insurance plan
where the employer pays a portion of the premiums, shall
be subtracted from net income in determining the minimum
amount of support to be ordered.
(4.5) In a proceeding for child support following
dissolution of the marriage 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
supporting party'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.
(5) If the net income cannot be determined because
of 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 payor'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.
(6) If (i) the non-custodial parent was properly
served with a request for discovery of financial
information relating to the non-custodial parent's
ability to provide child support, (ii) the non-custodial
parent failed to comply with the request, despite having
been ordered to do so by the court, and (iii) the
non-custodial parent is not present at the hearing to
determine support despite having received proper notice,
then any relevant financial information concerning the
non-custodial parent'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.
(a-5) In an action to enforce an order for support based
on the respondent's failure to make support payments as
required by the order, notice of proceedings to hold the
respondent in contempt for that failure may be served on the
respondent by personal service or by regular mail addressed
to the respondent's last known address. The respondent's last
known address 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
probation as the Court deems advisable;
(2) sentenced to periodic imprisonment for a period
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:
(A) work; or
(B) conduct a business or other self-employed
occupation.
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 custody or to the guardian having custody of
the minor children of the sentenced parent for the support of
said minor children until further order of the Court.
If there is a unity of interest and ownership sufficient
to render no financial separation between a non-custodial
parent 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 non-custodial
parent 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 non-custodial parent and the person,
persons, or business entity maintain records together.
(2) the non-custodial parent and the person,
persons, or business entity fail to maintain an arms
length relationship between themselves with regard to any
assets.
(3) the non-custodial parent transfers assets to
the person, persons, or business entity with the intent
to perpetrate a fraud on the custodial parent.
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. 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 for 30 days
or more shall accrue simple interest at the rate of 9% per
annum. An order for support entered or modified on or after
January 1, 2002 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 for 30 days or more shall accrue simple
interest at the rate of 9% per annum. 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. A lien arises by operation of law
against the real and personal property of the noncustodial
parent for each installment of overdue support owed by the
noncustodial parent.
(e) When child support is to be paid through the clerk
of the court in a county of 1,000,000 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 (3) of subsection (u) of
Section 27.1 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) 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 Illinois Department of Public Aid, 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, and (iii) of any new
residential or mailing address or telephone number of the
non-custodial parent. 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
non-custodial parent, service of process or provision of
notice necessary in the case may be made at the last known
address of the non-custodial parent 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 majority or is
otherwise emancipated. 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.
(h) An order entered under this Section shall include a
provision requiring the obligor to report to the obligee and
to the clerk of court within 10 days each time the obligor
obtains new employment, and each time the obligor'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 any obligor
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 the obligor and obligee parents to advise each
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 minor 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 or children.
(Source: P.A. 91-113, eff. 7-15-99; 91-397, eff. 1-1-00;
91-655, eff. 6-1-00; 91-767, eff. 6-9-00; 92-16, eff.
6-28-01; 92-203, eff. 8-1-01; 92-374, eff. 8-15-01; 92-651,
eff. 7-11-02.)
(Text of Section after amendment by P.A. 92-876)
Sec. 505. Child support; contempt; penalties.
(a) In a proceeding for dissolution of marriage, legal
separation, declaration of invalidity of marriage, a
proceeding for child support following dissolution of the
marriage by a court which 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 to pay an amount
reasonable and necessary for his support, without regard to
marital misconduct. 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 under age 19 who
is still attending high school.
(1) The Court shall determine the minimum amount of
support by using the following guidelines:
Number of Children Percent of Supporting Party's
Net Income
1 20%
2 28%25%
3 32%
4 40%
5 45%
6 or more 50%
(2) The above guidelines shall be applied in each
case unless the court makes a finding that application of
the guidelines would be inappropriate, after considering
the best interests of the child in light of evidence
including but not limited to one or more of the following
relevant factors:
(a) the financial resources and needs of the
child;
(b) the financial resources and needs of the
custodial parent;
(c) the standard of living the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of
the child, and his educational needs; and
(e) the financial resources and needs of the
non-custodial parent.
If the court deviates from the guidelines, the
court's finding shall state the amount of support that
would have been required under the guidelines, if
determinable. The court shall include the reason or
reasons for the variance from the guidelines.
(3) "Net income" is defined as the total of all
income from all sources, minus the following deductions:
(a) Federal income tax (properly calculated
withholding or estimated payments);
(b) State income tax (properly calculated
withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions
required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual
health/hospitalization insurance premiums;
(g) Prior obligations of support or
maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that
represent reasonable and necessary expenses for the
production of income, medical expenditures necessary
to preserve life or health, reasonable expenditures
for the benefit of the child and the other parent,
exclusive of gifts. The court shall reduce net
income in determining the minimum amount of support
to be ordered only for the period that such payments
are due and shall enter an order containing
provisions for its self-executing modification upon
termination of such payment period.
(4) In cases where the court order provides for
health/hospitalization insurance coverage pursuant to
Section 505.2 of this Act, the premiums for that
insurance, or that portion of the premiums for which the
supporting party is responsible in the case of insurance
provided through an employer's health insurance plan
where the employer pays a portion of the premiums, shall
be subtracted from net income in determining the minimum
amount of support to be ordered.
(4.5) In a proceeding for child support following
dissolution of the marriage 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
supporting party'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.
(5) If the net income cannot be determined because
of 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 payor'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.
(6) If (i) the non-custodial parent was properly
served with a request for discovery of financial
information relating to the non-custodial parent's
ability to provide child support, (ii) the non-custodial
parent failed to comply with the request, despite having
been ordered to do so by the court, and (iii) the
non-custodial parent is not present at the hearing to
determine support despite having received proper notice,
then any relevant financial information concerning the
non-custodial parent'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.
(a-5) In an action to enforce an order for support based
on the respondent's failure to make support payments as
required by the order, notice of proceedings to hold the
respondent in contempt for that failure may be served on the
respondent by personal service or by regular mail addressed
to the respondent's last known address. The respondent's last
known address 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
probation as the Court deems advisable;
(2) sentenced to periodic imprisonment for a period
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:
(A) work; or
(B) conduct a business or other self-employed
occupation.
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 custody or to the guardian having custody of
the children of the sentenced parent for the support of said
children until further order of the Court.
If there is a unity of interest and ownership sufficient
to render no financial separation between a non-custodial
parent 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 non-custodial
parent 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 non-custodial parent and the person,
persons, or business entity maintain records together.
(2) the non-custodial parent and the person,
persons, or business entity fail to maintain an arms
length relationship between themselves with regard to any
assets.
(3) the non-custodial parent transfers assets to
the person, persons, or business entity with the intent
to perpetrate a fraud on the custodial parent.
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. 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 for 30 days
or more shall accrue simple interest at the rate of 9% per
annum. An order for support entered or modified on or after
January 1, 2002 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 for 30 days or more shall accrue simple
interest at the rate of 9% per annum. 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. A lien arises by operation of law
against the real and personal property of the noncustodial
parent for each installment of overdue support owed by the
noncustodial parent.
(e) When child support is to be paid through the clerk
of the court in a county of 1,000,000 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 (3) of subsection (u) of
Section 27.1 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) 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 Illinois Department of Public Aid, 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, and (iii) of any new
residential or mailing address or telephone number of the
non-custodial parent. 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
non-custodial parent, service of process or provision of
notice necessary in the case may be made at the last known
address of the non-custodial parent 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.
(h) An order entered under this Section shall include a
provision requiring the obligor to report to the obligee and
to the clerk of court within 10 days each time the obligor
obtains new employment, and each time the obligor'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 any obligor
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 the obligor and obligee parents to advise each
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 or children.
(Source: P.A. 91-113, eff. 7-15-99; 91-397, eff. 1-1-00;
91-655, eff. 6-1-00; 91-767, eff. 6-9-00; 92-16, eff.
6-28-01; 92-203, eff. 8-1-01; 92-374, eff. 8-15-01; 92-651,
eff. 7-11-02; 92-876, eff. 6-1-03.)
Section 99. Effective date. This Act takes effect upon
becoming law.