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| Public Act 096-1145 | ||||
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AN ACT concerning real property.
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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 Code of Civil Procedure is amended by | ||||
changing Section 12-112 as follows:
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(735 ILCS 5/12-112) (from Ch. 110, par. 12-112)
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Sec. 12-112. What liable to enforcement. All the lands, | ||||
tenements, real
estate, goods and chattels (except such as is | ||||
by law declared to be exempt)
of every person against whom any | ||||
judgment has been or shall be hereafter
entered in any court, | ||||
for any debt, damages, costs, or other sum of money,
shall be | ||||
liable to be sold upon such judgment. Any real property, or any
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beneficial interest in a land trust, or any interest in real | ||||
property held in a revocable inter vivos trust or revocable | ||||
inter vivos trusts created for estate planning purposes, held | ||||
in
tenancy by the entirety shall not be liable to be sold upon | ||||
judgment
entered on or after October 1, 1990 against only one | ||||
of the tenants, except if
the property was transferred into | ||||
tenancy by the entirety with the sole intent
to avoid the | ||||
payment of debts existing at the time of the transfer beyond | ||||
the
transferor's ability to pay those debts as they become due.
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However, any income from such property shall be subject to | ||||
garnishment as
provided in Part 7 of this Article XII, whether | ||||
judgment has been entered
against one or both of the tenants.
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If the court authorizes the piercing of the ownership veil | ||
pursuant to
Section 505 of the Illinois Marriage and | ||
Dissolution of Marriage Act or Section
15 of the Illinois | ||
Parentage Act of 1984, any assets determined to be those of
the | ||
non-custodial parent, although not held in name of the
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non-custodial parent, shall be subject to attachment or other | ||
provisional
remedy in accordance with the procedure prescribed | ||
by this Code. The court may
not authorize attachment of
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property or any other provisional remedy under this paragraph | ||
unless it has
obtained jurisdiction over the entity holding | ||
title to the property by proper
service on that entity. With | ||
respect to assets which are real property, no
order entered as | ||
described in this paragraph shall affect the rights of bona
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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 this Code 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
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located.
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This amendatory Act of 1995 (P.A. 89-438) is declarative of | ||
existing law.
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This amendatory Act of 1997 (P.A. 90-514) is intended as a | ||
clarification
of existing law
and not as a new enactment.
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(Source: P.A. 89-88, eff. 6-30-95; 89-438, eff. 12-15-95; | ||
90-476, eff.
1-1-98; 90-514, eff. 8-22-97; 90-655, eff. | ||
7-30-98.)
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Section 10. The Joint Tenancy Act is amended by changing | ||
Section 1c as follows:
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(765 ILCS 1005/1c) (from Ch. 76, par. 1c)
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Sec. 1c.
Whenever a devise, conveyance, assignment, or | ||
other transfer of
property, including a beneficial interest in | ||
a land trust, maintained or
intended for
maintenance as a | ||
homestead by both husband and wife together during
coverture | ||
shall be made and the instrument of devise, conveyance, | ||
assignment,
or transfer expressly declares that the devise or | ||
conveyance is made
to tenants by the
entirety, or if the | ||
beneficial interest in a land trust is to be held as
tenants by | ||
the entirety, the estate created shall be
deemed to be in | ||
tenancy by the
entirety. Where the homestead is held in the | ||
name or names of a trustee or trustees of a revocable inter | ||
vivos trust or of revocable inter vivos trusts made by the | ||
settlors of such trust or trusts who are husband and wife, and | ||
the husband and wife are the primary beneficiaries of one or | ||
both of the trusts so created, and the deed or deeds conveying | ||
title to the homestead to the trustee or trustees of the trust | ||
or trusts specifically state that the interests of the husband | ||
and wife to the homestead property are to be held as tenants by | ||
the entirety, the estate created shall be deemed to be a | ||
tenancy by the entirety. Subject to the provisions of paragraph | ||
(d) of Section 2 and
unless otherwise assented to in writing by | ||
both tenants by the entirety,
the estate in tenancy by the | ||
entirety so created shall exist only if,
and as long as, the | ||
tenants are and remain married to each other, and upon
the | ||
death of either such tenant the survivor shall retain the | ||
entire
estate; provided that, upon a judgment of dissolution of | ||
marriage or of
declaration of invalidity of marriage, the | ||
estate shall, by operation of
law, become a tenancy in common | ||
until and unless the court directs
otherwise; provided further | ||
that the estate shall, by operation of law,
become a joint | ||
tenancy upon the creation and maintenance by both spouses
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together of other property as a homestead. A devise, | ||
conveyance,
assignment, or other transfer to 2 grantees who are | ||
not in fact husband and
wife that purports to create an estate | ||
by the entirety shall be construed as
having created an estate | ||
in joint tenancy. An estate in tenancy by the
entirety may be | ||
created notwithstanding the fact that a grantor is or the
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grantors are also named as a grantee or the grantees in a deed. | ||
No deed,
contract for deed, mortgage, or lease of homestead | ||
property held in tenancy
by the entirety shall be effective | ||
unless signed by both tenants. This
Section shall not apply to | ||
nor operate to change the effect of any devise
or conveyance.
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This amendatory Act of 1995 is declarative of existing law.
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(Source: P.A. 92-136, eff. 1-1-02.)
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