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| Public Act 096-1134 | ||||
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Marriage and Dissolution of | ||||
Marriage Act is amended by changing Section 505 as follows:
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(750 ILCS 5/505) (from Ch. 40, par. 505)
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Sec. 505. Child support; contempt; penalties.
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(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
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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
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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.
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(1) The Court shall determine the minimum amount of | ||||||||||||||||||
support by using the
following guidelines:
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(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
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factors:
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(a) the financial resources and needs of the child;
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(b) the financial resources and needs of the | ||||||||||||||||||
custodial parent;
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(c) the standard of living the child would have | ||||||||||||||||||
enjoyed had the
marriage not been dissolved;
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(d) the physical and emotional condition of the | ||||||||||||||||||
child, and his
educational needs; and
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(e) the financial resources and needs of the | ||||||||||||||||||
non-custodial parent.
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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.
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(3) "Net income" is defined as the total of all income | ||
from all
sources, minus the following deductions:
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(a) Federal income tax (properly calculated | ||
withholding or estimated
payments);
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(b) State income tax (properly calculated | ||
withholding or estimated
payments);
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(c) Social Security (FICA payments);
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(d) Mandatory retirement contributions required by | ||
law or as a
condition of employment;
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(e) Union dues;
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(f) Dependent and individual | ||
health/hospitalization insurance premiums;
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(g) Prior obligations of support or maintenance | ||
actually paid pursuant
to a court order;
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(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
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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; .
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(i) Foster care payments paid by the Department of | ||
Children and Family Services for providing licensed | ||
foster care to a foster child.
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(4) In cases where the court order provides for
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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.
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(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.
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(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
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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.
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(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
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received
proper notice, then any relevant financial | ||
information concerning the
non-custodial parent's ability | ||
to provide child support that was obtained
pursuant to
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subpoena and proper notice shall be admitted into evidence | ||
without the need to
establish any further foundation for | ||
its admission.
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(a-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.
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(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:
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(1) placed on probation with such conditions of | ||
probation as the Court
deems advisable;
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(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:
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(A) work; or
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(B) conduct a business or other self-employed | ||
occupation.
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The Court may further order any part or all of the earnings | ||
of a parent
during a sentence of periodic imprisonment paid to | ||
the Clerk of the Circuit
Court or to the parent having 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.
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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
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support:
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(1) the non-custodial parent and the person, persons, | ||
or business entity
maintain records together.
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(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.
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(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.
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With respect to assets which
are real property, no order | ||
entered under this paragraph shall affect the
rights of bona | ||
fide purchasers, mortgagees, judgment creditors, or other lien
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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.
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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
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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
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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.
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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
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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.
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A support obligation, or any portion of a support | ||
obligation, which becomes
due and remains unpaid as of the end | ||
of each month, excluding the child support that was due for | ||
that month to the extent that it was not paid in that month, | ||
shall accrue simple interest as set forth in Section 12-109 of | ||
the Code of Civil Procedure.
An order for support entered or | ||
modified on or after January 1, 2006 shall
contain a statement | ||
that a support obligation required under the order, or any
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portion of a support obligation required under the order, that | ||
becomes due and
remains unpaid as of the end of each month, | ||
excluding the child support that was due for that month to the | ||
extent that it was not paid in that month, shall accrue simple | ||
interest as set forth in Section 12-109 of the Code of Civil | ||
Procedure. Failure to include the statement in the order for | ||
support does
not affect the validity of the order or the | ||
accrual of interest as provided in
this Section.
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(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.
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(d) Any new or existing support order entered by the court
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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
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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.
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(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.
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(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
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services under Article X of the Illinois Public Aid Code, the
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Department of Healthcare and Family Services, within 7 days, | ||
(i) of the name and address
of any new employer of the obligor, | ||
(ii) whether the obligor has access to
health insurance | ||
coverage through the employer or other group coverage and,
if | ||
so, the policy name and number and the names of persons covered | ||
under
the policy, 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
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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.
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(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
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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
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prevent the court from modifying the order or terminating the | ||
order in the
event the child is otherwise emancipated.
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(g-5) If there is an unpaid arrearage or delinquency (as | ||
those terms are defined in the Income Withholding for Support | ||
Act) equal to at least one month's support obligation on the | ||
termination date stated in the order for support or, if there | ||
is no termination date stated in the order, on the date the | ||
child attains the age of majority or is otherwise emancipated, | ||
the periodic amount required to be paid for current support of | ||
that child immediately prior to that date shall automatically | ||
continue to be an obligation, not as current support but as | ||
periodic payment toward satisfaction of the unpaid arrearage or | ||
delinquency. That periodic payment shall be in addition to any | ||
periodic payment previously required for satisfaction of the | ||
arrearage or delinquency. The total periodic amount to be paid | ||
toward satisfaction of the arrearage or delinquency may be | ||
enforced and collected by any method provided by law for | ||
enforcement and collection of child support, including but not | ||
limited to income withholding under the Income Withholding for | ||
Support Act. Each order for support entered or modified on or | ||
after the effective date of this amendatory Act of the 93rd | ||
General Assembly must contain a statement notifying the parties | ||
of the requirements of this subsection. Failure to include the | ||
statement in the order for support does not affect the validity | ||
of the order or the operation of the provisions of this | ||
subsection with regard to the order. This subsection shall not | ||
be construed to prevent or affect the establishment or | ||
modification of an order for support of a minor child or the | ||
establishment or modification of an order for support of a | ||
non-minor child or educational expenses under Section 513 of | ||
this Act.
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(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
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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.
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(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
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emancipation of the minor child or children.
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(Source: P.A. 94-90, eff. 1-1-06; 95-331, eff. 8-21-07.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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