Public Act 90-0425 of the 90th General Assembly
Public Act 90-0425
SB1024 Enrolled LRB9003396DJcd
AN ACT concerning child support.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
New Hire Reporting Act.
Section 30. Toll-free telephone line; public service
announcements.
(a) The Department of Employment Security shall
establish a toll-free telephone line for new hire reporting,
employer follow-up to correct errors and facilitate
electronic transmission, and an expedited administrative
hearing process to determine reasonable cause in
non-compliance situations.
(b) The Department of Employment Security shall issue
public service announcements and mailings to inform employers
about the new hire reporting requirements and procedures
pursuant to Section 1801.1 of the Unemployment Insurance Act,
including simple instructions on completion of the Form W-4
and information on electronic or magnetic transmission of
data.
Section 35. Department of Public Aid duties. The
Department of Public Aid shall establish a community advisory
committee for oversight of the implementation process,
toll-free telephone lines for employers with child support
questions, an expedited hearing process for non-custodial
parents who contest an employer's execution of an order for
withholding and brochures and public service announcements
that inform the general public about the New Hire Directory
and how to utilize it, within the federal and State
confidentiality laws, in pursuit of child support.
Section 40. Emergency judicial hearing. If the issue of
an employer's reasonable cause for failure to comply with the
reporting requirements pursuant to Section 1801.1 of the
Unemployment Insurance Act is not resolved through the
expedited administrative hearing process authorized under
subsection (a) of Section 30, the employer may file a
petition in the circuit court to seek judicial review of that
issue.
Section 90. The Illinois Public Aid Code is amended by
changing Section 10-16.2 as follows:
(305 ILCS 5/10-16.2) (from Ch. 23, par. 10-16.2)
(Text of Section before amendment by P.A. 89-507)
Sec. 10-16.2. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premium; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met or that the requirements
for immediate withholding under paragraph (8) of subsection B
have been previously met. The obligee or public office may
then serve the order for withholding on the payor, its
superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A. 89-507)
Sec. 10-16.2. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services (as successor
to the Department of Mental Health and Developmental
Disabilities), the Illinois Department of Children and Family
Services, and the various State's Attorneys, Clerks of the
Circuit Court and supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premium; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met or that the requirements
for immediate withholding under paragraph (8) of subsection B
have been previously met. The obligee or public office may
then serve the order for withholding on the payor, its
superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
eff. 12-2-94; 89-507, eff. 7-1-97.)
Section 91. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 706.1 as follows:
(750 ILCS 5/706.1) (from Ch. 40, par. 706.1)
(Text of Section before amendment by P.A. 89-507)
Sec. 706.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premiums; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A.89-507)
Sec. 706.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services, the Illinois
Department of Children and Family Services, and the various
State's Attorneys, Clerks of the Circuit Court and
supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if
applicable, any required premiums; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is not paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
eff. 12-2-94; 89-507, eff. 7-1-97.)
Section 92. The Non-Support of Spouse and Children Act
is amended by changing Section 4.1 as follows:
(750 ILCS 15/4.1) (from Ch. 40, par. 1107.1)
(Text of Section before amendment by P.A. 89-507)
Sec. 4.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if applicable,
any required premiums; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding, and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D).
If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month or the actual check
processing cost to be taken from the income to be paid to the
obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A. 89-507)
Sec. 4.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) Modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) Reimbursement of support; or
(c) Enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) Any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) Union dues;
(c) Any amounts exempted by the federal Consumer
Credit Protection Act;
(d) Public assistance payments; and
(e) Unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services, the Illinois
Department of Children and Family Services, and the various
State's Attorneys, Clerks of the Circuit Court and
supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) Direct any payor to withhold a dollar amount
equal to the order for support; and
(b) Direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) Direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if applicable,
any required premiums; and
(d) State the rights, remedies and duties of the
obligor under this Section; and
(e) Include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) Include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding, and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to:
(a) A dispute concerning the amount of current
support or the existence or amount of the delinquency;
(b) The identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D).
If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month or the actual check
processing cost to be taken from the income to be paid to the
obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) Modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) Modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) Suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) Shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) May order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) Prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) Prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) Serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) The notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) The obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) The proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
eff. 12-2-94; 89-507, eff. 7-1-97.)
Section 93. The Revised Uniform Reciprocal Enforcement
of Support Act is amended by changing Section 26.1 as
follows:
(750 ILCS 20/26.1) (from Ch. 40, par. 1226.1)
(Text of Section before amendment by P.A. 89-507)
Sec. 26.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) reimbursement of support; or
(c) enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) union dues;
(c) any amounts exempted by the federal Consumer
Credit Protection Act;
(d) public assistance payments; and
(e) unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) direct any payor to withhold a dollar amount
equal to the order for support; and
(b) direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if applicable,
any required premiums; and
(d) state the rights, remedies and duties of the
obligor under this Section; and
(e) include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to a dispute concerning: (a) the
amount of current support or the existence or amount of the
delinquency; or (b) the identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit shall: (a) make available any record of
payment; and (b) determine that the file contains a copy of
the affidavit described in paragraph (1). The Clerk shall
then provide to the obligee or public office a specially
certified copy of the order for withholding and the notice of
delinquency indicating that the preconditions for service
have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) may order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) the notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) the obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) the proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A. 89-507)
Sec. 26.1. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child or maintenance of a spouse, whether temporary or
final, and includes any such order which provides for:
(a) modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) reimbursement of support; or
(c) enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) union dues;
(c) any amounts exempted by the federal Consumer
Credit Protection Act;
(d) public assistance payments; and
(e) unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services, the Illinois
Department of Children and Family Services, and the various
State's Attorneys, Clerks of the Circuit Court and
supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after
January 1, 1984, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) direct any payor to withhold a dollar amount
equal to the order for support; and
(b) direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if applicable,
any required premiums; and
(d) state the rights, remedies and duties of the
obligor under this Section; and
(e) include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that an
arrearage has accrued in an amount equal to at least one
month's support obligation or that the obligor is 30 days
late in paying all or part of the order for support, the
court shall order immediate service of the order for
withholding upon the payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to a dispute concerning: (a) the
amount of current support or the existence or amount of the
delinquency; or (b) the identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit shall: (a) make available any record of
payment; and (b) determine that the file contains a copy of
the affidavit described in paragraph (1). The Clerk shall
then provide to the obligee or public office a specially
certified copy of the order for withholding and the notice of
delinquency indicating that the preconditions for service
have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) shall enter judgment and direct the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) may order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) the notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) the obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) the proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to January 1, 1984.
(Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
eff. 12-2-94; 89-507, eff. 7-1-97.)
Section 94. The Illinois Parentage Act of 1984 is
amended by changing Section 20 as follows:
(750 ILCS 45/20) (from Ch. 40, par. 2520)
(Text of Section before amendment by P.A. 89-507)
Sec. 20. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child, whether temporary or final, and includes any such
order which provides for:
(a) modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) reimbursement of support;
(c) payment or reimbursement of the expense of
pregnancy and delivery; or
(d) enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) union dues;
(c) any amounts exempted by the federal Consumer
Credit Protection Act;
(d) public assistance payments; and
(e) unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Mental Health and
Developmental Disabilities, the Illinois Department of
Children and Family Services, and the various State's
Attorneys, Clerks of the Circuit Court and supervisors of
general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after July
1, 1985, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) direct any payor to withhold a dollar amount
equal to the order for support; and
(b) direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if applicable,
any required premiums; and
(d) state the rights, remedies and duties of the
obligor under this Section; and
(e) include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that arrearage
has accrued in an amount equal to at least one month's
support obligation or that the obligor is 30 days late in
paying all or part of the order for support, the court shall
order immediate service of the order for withholding upon the
payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to a dispute concerning: (a) the
amount of current support or the existence or amount of the
delinquency; or (b) the identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) shall enter judgment and order the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) may order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) the notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) the obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) the proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to July 1, 1985.
(Source: P.A. 87-529; 87-935; 87-988; 87-1105; 88-26; 88-45;
88-94; 88-131; 88-307; 88-670, eff. 12-2-94.)
(Text of Section after amendment by P.A.89-507)
Sec. 20. Withholding of Income to Secure Payment of
Support.
(A) Definitions.
(1) "Order for support" means any order of the court
which provides for periodic payment of funds for the support
of a child, whether temporary or final, and includes any such
order which provides for:
(a) modification or resumption of, or payment of
arrearage accrued under, a previously existing order;
(b) reimbursement of support;
(c) payment or reimbursement of the expense of
pregnancy and delivery; or
(d) enrollment in a health insurance plan that is
available to the obligor through an employer or labor
union or trade union.
(2) "Arrearage" means the total amount of unpaid support
obligations.
(3) "Delinquency" means any payment under an order for
support which becomes due and remains unpaid after an order
for withholding has been entered under subsection (B) or, for
purposes of subsection (K), after the last order for support
was entered for which no order for withholding was entered.
(4) "Income" means any form of periodic payment to an
individual, regardless of source, including, but not limited
to: wages, salary, commission, compensation as an independent
contractor, workers' compensation, disability, annuity and
retirement benefits, lottery prize awards, insurance
proceeds, vacation pay, bonuses, profit-sharing payments and
any other payments, made by any person, private entity,
federal or state government, any unit of local government,
school district or any entity created by Public Act; however,
"income" excludes:
(a) any amounts required by law to be withheld,
other than creditor claims, including, but not limited
to, federal, State and local taxes, Social Security and
other retirement and disability contributions;
(b) union dues;
(c) any amounts exempted by the federal Consumer
Credit Protection Act;
(d) public assistance payments; and
(e) unemployment insurance benefits except as
provided by law.
Any other State or local laws which limit or exempt
income or the amount or percentage of income that can be
withheld shall not apply.
(5) "Obligor" means the individual who owes a duty to
make payments under an order for support.
(6) "Obligee" means the individual to whom a duty of
support is owed or the individual's legal representative.
(7) "Payor" means any payor of income to an obligor.
(8) "Public office" means any elected official or any
State or local agency which is or may become responsible by
law for enforcement of, or which is or may become authorized
to enforce, an order for support, including, but not limited
to: the Attorney General, the Illinois Department of Public
Aid, the Illinois Department of Human Services, the Illinois
Department of Children and Family Services, and the various
State's Attorneys, Clerks of the Circuit Court and
supervisors of general assistance.
(9) "Premium" means the dollar amount for which the
obligor is liable to his employer or labor union or trade
union and which must be paid to enroll or maintain a child in
a health insurance plan that is available to the obligor
through an employer or labor union or trade union.
(B) Entry of an Order for Withholding.
(1) Upon entry of any order for support on or after July
1, 1985, the court shall enter a separate order for
withholding which shall not take effect unless the obligor
becomes delinquent in paying the order for support or the
obligor requests an earlier effective date; except that the
court may require the order for withholding to take effect
immediately.
On or after January 1, 1989, the court shall require the
order for withholding to take effect immediately, unless a
written agreement is reached between and signed by both
parties providing for an alternative arrangement, approved
and entered into the record by the court, which insures
payment of support. In that case, the court shall enter the
order for withholding which will not take effect unless the
obligor becomes delinquent in paying the order for support.
Upon entry of any order of support on or after September
11, 1989, if the obligor is not a United States citizen, the
obligor shall provide to the court the obligor's alien
registration number, passport number, and home country's
social security or national health number, if applicable; the
court shall make the information part of the record in the
case.
(2) An order for withholding shall be entered upon
petition by the obligee or public office where an order for
withholding has not been previously entered.
(3) The order for withholding shall:
(a) direct any payor to withhold a dollar amount
equal to the order for support; and
(b) direct any payor to withhold an additional
dollar amount, not less than 20% of the order for
support, until payment in full of any delinquency stated
in the notice of delinquency provided for in subsection
(C) or (F) of this Section; and
(c) direct any payor or labor union or trade union
to enroll a child as a beneficiary of a health insurance
plan and withhold or cause to be withheld, if applicable,
any required premiums; and
(d) state the rights, remedies and duties of the
obligor under this Section; and
(e) include the obligor's Social Security Number,
which the obligor shall disclose to the court; and
(f) include the date that withholding for current
support terminates, which shall be the date of
termination of the current support obligation set forth
in the order for support.
(4) At the time the order for withholding is entered,
the Clerk of the Circuit Court shall provide a copy of the
order for withholding and the order for support to the
obligor and shall make copies available to the obligee and
public office. Any copy of the order for withholding
furnished to the parties under this subsection shall be
stamped "Not Valid".
(5) The order for withholding shall remain in effect for
as long as the order for support upon which it is based.
(6) The failure of an order for withholding to state an
arrearage is not conclusive of the issue of whether an
arrearage is owing.
(7) Notwithstanding the provisions of this subsection,
if the court finds at the time of any hearing that arrearage
has accrued in an amount equal to at least one month's
support obligation or that the obligor is 30 days late in
paying all or part of the order for support, the court shall
order immediate service of the order for withholding upon the
payor.
(8) Where the court has not required that the order for
withholding take effect immediately, the obligee or public
office may prepare and serve a notice for immediate
withholding upon the obligor by ordinary mail addressed to
the obligor at his or her last known address. The notice
shall state that the following circumstances have occurred:
(a) The parties' written agreement providing an
alternative arrangement to immediate withholding under
paragraph (1) of this subsection no longer provides for
timely payment of all support due; or
(b) The obligor has not made timely payments in
that the obligor has been at least 7 days late in paying
all or part of the order for support any of the last 6
consecutive dates payments were due prior to the date of
the notice for immediate withholding.
The notice for immediate withholding shall clearly state
that a specially certified copy of the order for withholding
will be sent to the payor, unless the obligor files a
petition contesting immediate withholding within 20 days
after service of the notice; however, the grounds for the
petition shall be limited to a dispute concerning whether the
circumstances stated in the notice have occurred or the
identity of the obligor. It shall not be grounds for the
petition that the obligor has made all payments due by the
date of the petition.
If the obligor files a petition contesting immediate
withholding within the 20-day period required under this
paragraph, the Clerk of the Circuit Court shall notify the
obligor and the obligee or public office, as appropriate, of
the time and place of the hearing on the petition. Upon
hearing the petition, the court shall enter an order granting
or denying relief. It shall not be grounds for granting the
obligor's petition that he or she has made all payments due
by the date of hearing. If the court denies the obligor's
petition, it shall order immediate service of the order for
withholding and direct the clerk to provide a specially
certified copy of the order for withholding to the obligee or
public office indicating that the requirements for immediate
withholding under this paragraph have been met.
If the obligor does not file a petition contesting
immediate withholding within the 20-day period, the obligee
or public office shall file with the Clerk of the Circuit
Court an affidavit, with a copy of the notice for immediate
withholding attached thereto, stating that the notice was
duly served and the date on which service was effected, and
that the obligor has not filed a petition contesting
immediate withholding. The clerk shall then provide to the
obligee or public office a specially certified copy of the
order for withholding indicating that the requirements for
immediate withholding under this paragraph have been met.
Upon receipt of a specially certified copy of the order
for withholding, the obligee or public office may serve the
order on the payor, its superintendent, manager or other
agent, by certified mail or personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(C) Notice of Delinquency.
(1) Whenever an obligor becomes delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the order for support or is at least 30 days late
in complying with all or part of the order for support,
whichever occurs first, the obligee or public office may
prepare and serve a verified notice of delinquency, together
with a form petition to stay service, pursuant to paragraph
(3) of this subsection.
(2) The notice of delinquency shall recite the terms of
the order for support and contain a computation of the period
and total amount of the delinquency, as of the date of the
notice. The notice shall clearly state that it will be sent
to the payor, together with a specially certified copy of the
order for withholding, except as provided in subsection (F),
unless the obligor files a petition to stay service in
accordance with paragraph (1) of subsection (D).
(3) The notice of delinquency shall be served by
ordinary mail addressed to the obligor at his or her last
known address.
(4) The obligor may execute a written waiver of the
provisions of paragraphs (1) through (3) of this subsection
and request immediate service upon the payor.
(D) Procedures to Avoid Income Withholding.
(1) Except as provided in subsection (F), the obligor
may prevent an order for withholding from being served by
filing a petition to stay service with the Clerk of the
Circuit Court, within 20 days after service of the notice of
delinquency; however, the grounds for the petition to stay
service shall be limited to a dispute concerning: (a) the
amount of current support or the existence or amount of the
delinquency; or (b) the identity of the obligor.
The Clerk of the Circuit Court shall notify the obligor
and the obligee or public office, as appropriate, of the time
and place of the hearing on the petition to stay service. The
court shall hold such hearing pursuant to the provisions of
subsection (H).
(2) Except as provided in subsection (F), filing of a
petition to stay service, within the 20-day period required
under this subsection, shall prohibit the obligee or public
office from serving the order for withholding on any payor of
the obligor.
(E) Initial Service of Order for Withholding.
(1) Except as provided in subsection (F), in order to
serve an order for withholding upon a payor, an obligee or
public office shall follow the procedures set forth in this
subsection. After 20 days following service of the notice of
delinquency, the obligee or public office shall file with the
Clerk of the Circuit Court an affidavit, with the copy of the
notice of delinquency attached thereto, stating:
(a) that the notice of delinquency has been duly
served and the date on which service was effected; and
(b) that the obligor has not filed a petition to
stay service, or in the alternative
(c) that the obligor has waived the provisions of
subparagraphs (a) and (b) of this paragraph (1) in
accordance with subsection (C)(4).
(2) Upon request of the obligee or public office, the
Clerk of the Circuit Court shall: (a) make available any
record of payment; and (b) determine that the file contains a
copy of the affidavit described in paragraph (1). The Clerk
shall then provide to the obligee or public office a
specially certified copy of the order for withholding and the
notice of delinquency indicating that the preconditions for
service have been met.
(3) The obligee or public office may then serve the
notice of delinquency and order for withholding on the payor,
its superintendent, manager or other agent, by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(F) Subsequent Service of Order for Withholding.
(1) Notwithstanding the provisions of this Section, at
any time after the court has ordered immediate service of an
order for withholding or after initial service of an order
for withholding pursuant to subsection (E), the obligee or
public office may serve the order for withholding upon any
payor of the obligor without further notice to the obligor.
The obligee or public office shall provide notice to the
payor, pursuant to paragraph (6) of subsection (I), of any
payments that have been made through previous withholding or
any other method.
(2) The Clerk of the Circuit Court shall, upon request,
provide the obligee or public office with specially certified
copies of the order for withholding or the notice of
delinquency or both whenever the Court has ordered immediate
service of an order for withholding or an affidavit has been
placed in the court file indicating that the preconditions
for service have been previously met. The obligee or public
office may then serve the order for withholding on the payor,
its superintendent, manager or other agent by regular or
certified mail or facsimile personal delivery. A proof of
service shall be filed with the Clerk of the Circuit Court.
(3) If a delinquency has accrued for any reason, the
obligee or public office may serve a notice of delinquency
upon the obligor pursuant to subsection (C). The obligor may
prevent the notice of delinquency from being served upon the
payor by utilizing the procedures set forth in subsection
(D). If no petition to stay service has been filed within the
required 20 day time period, the obligee or public office may
serve the notice of delinquency on the payor by utilizing the
procedures for service set forth in subsection (E).
(4) New service of an order for withholding is not
required in order to resume withholding of income in the case
of an obligor with respect to whom an order for withholding
was previously served on the payor if withholding of income
was terminated because of an interruption in the obligor's
employment of less than 180 days.
(G) Duties of Payor.
(1) It shall be the duty of any payor who has been
served with a copy of the specially certified order for
withholding and any notice of delinquency to deduct and pay
over income as provided in this subsection. The payor shall
deduct the amount designated in the order for withholding, as
supplemented by the notice of delinquency and any notice
provided pursuant to paragraph (6) of subsection (I),
beginning no later than the next payment of income which is
payable to the obligor that occurs 14 days following the date
the order and any notice were mailed by certified mail or
placed for personal delivery. The payor may combine all
amounts withheld for the benefit of an obligee or public
office into a single payment and transmit the payment with a
listing of obligors from whom withholding has been effected.
The payor shall pay the amount withheld to the obligee or
public office within 10 calendar days of the date income is
paid to the obligor in accordance with the order for
withholding and any subsequent notification received from the
public office redirecting payments. If the payor knowingly
fails to pay any amount withheld to the obligee or public
office within 10 calendar days of the date income is paid to
the obligor, the payor shall pay a penalty of $100 for each
day that the withheld amount is not paid to the obligee or
public office after the period of 10 calendar days has
expired. The failure of a payor, on more than one occasion,
to pay amounts withheld to the obligee or public office
within 10 calendar days of the date income is paid to the
obligor creates a presumption that the payor knowingly failed
to pay the amounts. This penalty may be collected in a civil
action which may be brought against the payor in favor of the
obligee. A finding of a payor's nonperformance within the
time required under this Section must be documented by a
certified mail return receipt showing the date the order for
withholding was served on the payor. For purposes of this
Section, a withheld amount shall be considered paid by a
payor on the date it is mailed by the payor, or on the date
an electronic funds transfer of the amount has been initiated
by the payor, or on the date delivery of the amount has been
initiated by the payor. For each deduction, the payor shall
provide the obligee or public office, at the time of
transmittal, with the date income was paid from which support
was withheld.
Upon receipt of an order requiring that a minor child be
named as a beneficiary of a health insurance plan available
through an employer or labor union or trade union, the
employer or labor union or trade union shall immediately
enroll the minor child as a beneficiary in the health
insurance plan designated by the court order. The employer
shall withhold any required premiums and pay over any amounts
so withheld and any additional amounts the employer pays to
the insurance carrier in a timely manner. The employer or
labor union or trade union shall mail to the obligee, within
15 days of enrollment or upon request, notice of the date of
coverage, information on the dependent coverage plan, and all
forms necessary to obtain reimbursement for covered health
expenses, such as would be made available to a new employee.
When an order for dependent coverage is in effect and the
insurance coverage is terminated or changed for any reason,
the employer or labor union or trade union shall notify the
obligee within 10 days of the termination or change date
along with notice of conversion privileges.
For withholding of income, the payor shall be entitled to
receive a fee not to exceed $5 per month to be taken from the
income to be paid to the obligor.
(2) Whenever the obligor is no longer receiving income
from the payor, the payor shall return a copy of the order
for withholding to the obligee or public office and shall
provide information for the purpose of enforcing this
Section.
(3) Withholding of income under this Section shall be
made without regard to any prior or subsequent garnishments,
attachments, wage assignments, or any other claims of
creditors. Withholding of income under this Section shall
not be in excess of the maximum amounts permitted under the
federal Consumer Credit Protection Act. If the payor has been
served with more than one order for withholding pertaining to
the same obligor, the payor shall allocate income available
for withholding on a proportionate share basis, giving
priority to current support payments. If there is any income
available for withholding after withholding for all current
support obligations, the payor shall allocate the income to
past due support payments ordered in non-AFDC matters and
then to past due support payments ordered in AFDC matters,
both on a proportionate share basis. Payment as required by
the order for withholding shall be a complete defense by the
payor against any claims of the obligor or his creditors as
to the sum so paid.
(4) No payor shall discharge, discipline, refuse to hire
or otherwise penalize any obligor because of the duty to
withhold income.
(H) Petitions to Stay Service or to Modify, Suspend or
Terminate Orders for Withholding.
(1) When an obligor files a petition to stay service,
the court, after due notice to all parties, shall hear the
matter as soon as practicable and shall enter an order
granting or denying relief, amending the notice of
delinquency, amending the order for withholding, where
applicable, or otherwise resolving the matter. If the court
finds that a delinquency existed when the notice of
delinquency was served upon the obligor, in an amount of at
least one month's support obligation, or that the obligor was
at least 30 days late in paying all or part of the order for
support, the court shall order immediate service of the order
for withholding. Where the court cannot promptly resolve any
dispute over the amount of the delinquency, the court may
order immediate service of the order for withholding as to
any undisputed amounts specified in an amended notice of
delinquency, and may continue the hearing on the disputed
amounts.
(2) At any time, an obligor, obligee, public office or
Clerk of the Circuit Court may petition the court to:
(a) modify, suspend or terminate the order for
withholding because of a modification, suspension or
termination of the underlying order for support; or
(b) modify the amount of income to be withheld to
reflect payment in full or in part of the delinquency or
arrearage by income withholding or otherwise; or
(c) suspend the order for withholding because of
inability to deliver income withheld to the obligee due
to the obligee's failure to provide a mailing address or
other means of delivery.
(3) The obligor, obligee or public office shall serve on
the payor, by certified mail or personal delivery, a copy of
any order entered pursuant to this subsection that affects
the duties of the payor.
(4) At any time, a public office or Clerk of the Circuit
Court may serve a notice on the payor to:
(a) cease withholding of income for payment of
current support for a child when the support obligation
for that child has automatically ceased under the order
for support through emancipation or otherwise; or
(b) cease withholding of income for payment of
delinquency or arrearage when the delinquency or
arrearage has been paid in full.
(5) The notice provided for under paragraph (4) of this
subsection shall be served on the payor by ordinary mail, and
a copy shall be provided to the obligor and the obligee. A
copy of the notice shall be filed with the Clerk of the
Circuit Court.
(6) The order for withholding shall continue to be
binding upon the payor until service of any order of the
court or notice entered or provided for under this
subsection.
(I) Additional Duties.
(1) An obligee who is receiving income withholding
payments under this Section shall notify the payor, if the
obligee receives the payments directly from the payor, or the
public office or the Clerk of the Circuit Court, as
appropriate, of any change of address within 7 days of such
change.
(2) An obligee who is a recipient of public aid shall
send a copy of any notice of delinquency filed pursuant to
subsection (C) to the Bureau of Child Support of the Illinois
Department of Public Aid.
(3) Each obligor shall notify the obligee and the Clerk
of the Circuit Court of any change of address within 7 days.
(4) An obligor whose income is being withheld or who has
been served with a notice of delinquency pursuant to this
Section shall notify the obligee and the Clerk of the Circuit
Court of any new payor, within 7 days.
(5) When the Illinois Department of Public Aid is no
longer authorized to receive payments for the obligee, it
shall, within 7 days, notify the payor or, where appropriate,
the Clerk of the Circuit Court, to redirect income
withholding payments to the obligee.
(6) The obligee or public office shall provide notice to
the payor and Clerk of the Circuit Court of any other support
payment made, including but not limited to, a set-off under
federal and State law or partial payment of the delinquency
or arrearage, or both.
(7) Any public office and Clerk of the Circuit Court
which collects, disburses or receives payments pursuant to
orders for withholding shall maintain complete, accurate, and
clear records of all payments and their disbursements.
Certified copies of payment records maintained by a public
office or Clerk of the Circuit Court shall, without further
proof, be admitted into evidence in any legal proceedings
under this Section.
(8) The Illinois Department of Public Aid shall design
suggested legal forms for proceeding under this Section and
shall make available to the courts such forms and
informational materials which describe the procedures and
remedies set forth herein for distribution to all parties in
support actions.
(9) At the time of transmitting each support payment,
the clerk of the circuit court shall provide the obligee or
public office, as appropriate, with any information furnished
by the payor as to the date income was paid from which such
support was withheld.
(J) Penalties.
(1) Where a payor wilfully fails to withhold or pay over
income pursuant to a properly served, specially certified
order for withholding and any notice of delinquency, or
wilfully discharges, disciplines, refuses to hire or
otherwise penalizes an obligor as prohibited by subsection
(G), or otherwise fails to comply with any duties imposed by
this Section, the obligee, public office or obligor, as
appropriate, may file a complaint with the court against the
payor. The clerk of the circuit court shall notify the
obligee or public office, as appropriate, and the obligor and
payor of the time and place of the hearing on the complaint.
The court shall resolve any factual dispute including, but
not limited to, a denial that the payor is paying or has paid
income to the obligor. Upon a finding in favor of the
complaining party, the court:
(a) shall enter judgment and order the enforcement
thereof for the total amount that the payor wilfully
failed to withhold or pay over; and
(b) may order employment or reinstatement of or
restitution to the obligor, or both, where the obligor
has been discharged, disciplined, denied employment or
otherwise penalized by the payor and may impose a fine
upon the payor not to exceed $200.
(2) Any obligee, public office or obligor who wilfully
initiates a false proceeding under this Section or who
wilfully fails to comply with the requirements of this
Section shall be punished as in cases of contempt of court.
(K) Alternative Procedures for Entry and Service of an Order
for Withholding.
(1) Effective January 1, 1987, in any matter in which an
order for withholding has not been entered for any reason,
based upon the last order for support that has been entered,
and in which the obligor has become delinquent in payment of
an amount equal to at least one month's support obligation
pursuant to the last order for support or is at least 30 days
late in complying with all or part of the order for support,
the obligee or public office may prepare and serve an order
for withholding pursuant to the procedures set forth in this
subsection.
(2) The obligee or public office shall:
(a) prepare a proposed order for withholding for
immediate service as provided by paragraphs (1) and (3)
of subsection (B), except that the minimum 20%
delinquency payment shall be used;
(b) prepare a notice of delinquency as provided by
paragraphs (1) and (2) of subsection (C), except the
notice shall state further that the order for withholding
has not been entered by the court and the conditions
under which the order will be entered; and
(c) serve the notice of delinquency and form
petition to stay service as provided by paragraph (3) of
subsection (C), together with the proposed order for
withholding, which shall be marked "COPY ONLY".
(3) After 20 days following service of the notice of
delinquency and proposed order for withholding, in lieu of
the provisions of subsection (E), the obligee or public
office shall file with the Clerk of the Circuit Court an
affidavit, with a copy of the notice of delinquency and
proposed order for withholding attached thereto, stating
that:
(a) the notice of delinquency and proposed order
for withholding have been served upon the obligor and the
date on which service was effected;
(b) the obligor has not filed a petition to stay
service within 20 days of service of such notice and
order; and
(c) the proposed order for withholding accurately
states the terms and amounts contained in the last order
for support.
(4) Upon the court's satisfaction that the procedures
set forth in this subsection have been met, it shall enter
the order for withholding.
(5) The Clerk shall then provide to the obligee or
public office a specially certified copy of the order for
withholding and the notice of delinquency indicating that the
preconditions for service have been met.
(6) The obligee or public office shall serve the
specially certified copies of the order for withholding and
the notice of delinquency on the payor, its superintendent,
manager or other agent by certified mail or personal
delivery. A proof of service shall be filed with the Clerk
of the Circuit Court.
(7) If the obligor requests in writing that income
withholding become effective prior to becoming delinquent in
payment of an amount equal to one month's support obligation
pursuant to the last order for support, or prior to becoming
30 days late in paying all or part of the order for support,
the obligee or public office shall file an affidavit with the
Clerk of the circuit Court, with a proposed order for
withholding attached, stating that the proposed order
accurately states the terms and amounts contained in the last
order for support and the obligor's request for immediate
service. The provisions of paragraphs (4) through (6) of
this subsection shall apply, except that a notice of
delinquency shall not be required.
(8) All other provisions of this Section shall be
applicable with respect to the provisions of this subsection
(K), except that under paragraph (1) of subsection (H), the
court may also amend the proposed order for withholding to
conform to the last order for support.
(9) Nothing in this subsection shall be construed as
limiting the requirements of paragraph (1) of subsection (B)
with respect to the entry of a separate order for withholding
upon entry of any order for support.
(L) Remedies in Addition to Other Laws.
(1) The rights, remedies, duties and penalties created
by this Section are in addition to and not in substitution
for any other rights, remedies, duties and penalties created
by any other law.
(2) Nothing in this Section shall be construed as
invalidating any assignment of wages or benefits executed
prior to July 1, 1985.
(Source: P.A. 88-26; 88-45; 88-94; 88-131; 88-307; 88-670,
eff. 12-2-94; 89-507, eff. 7-1-97.)
Section 94.5. The Unemployment Insurance Act is amended
by changing Sections 1300 and 1900 and adding Section 1801.1
as follows:
(820 ILCS 405/1300) (from Ch. 48, par. 540)
Sec. 1300. Waiver or transfer of benefit rights -
Partial exemption.
(A) Except as otherwise provided herein any agreement by
an individual to waive, release or commute his rights under
this Act shall be void.
(B) Benefits due under this Act shall not be assigned,
pledged, encumbered, released or commuted and shall be exempt
from all claims of creditors and from levy, execution and
attachment or other remedy for recovery or collection of a
debt. However, nothing in this Section shall prohibit a
specified or agreed upon deduction from benefits by an
individual, or a court or administrative order for
withholding of income, for payment of past due child support
from being enforced and collected by the Department of Public
Aid on behalf of persons receiving a grant of financial aid
under Article IV of The Illinois Public Aid Code, persons for
whom an application has been made and approved for support
services under Section 10-1 of such Code, or persons
similarly situated and receiving like support services in
other states. It is provided that:
(1) The aforementioned deduction of benefits and
order for withholding of income apply only if appropriate
arrangements have been made for reimbursement to the
Director by the Department of Public Aid for any
administrative costs incurred by the Director under this
Section.
(2) The Director shall deduct and withhold from
benefits payable under this Act, or under any arrangement
for the payment of benefits entered into by the Director
pursuant to the powers granted under Section 2700 of this
Act, the amount specified or agreed upon. In the case of
a court or administrative order for withholding of
income, the Director shall withhold the amount of the
order.
(3) Any amount deducted and withheld by the
Director shall be paid to the Department of Public Aid on
behalf of the individual.
(4) Any amount deducted and withheld under
subsection (3) shall for all purposes be treated as if it
were paid to the individual as benefits and paid by such
individual to the Department of Public Aid in
satisfaction of the individual's child support
obligations.
(5) For the purpose of this Section, child support
is defined as those obligations which are being enforced
pursuant to a plan described in Title IV, Part D, Section
454 of the Social Security Act and approved by the
Secretary of Health and Human Services.
(6) The deduction of benefits and order for
withholding of income for child support shall be governed
by Titles III and IV of the Social Security Act and all
regulations duly promulgated thereunder.
(C) Nothing in this Section prohibits an individual from
voluntarily electing to have federal income tax deducted and
withheld from his or her unemployment insurance benefit
payments.
(1) The Director shall, at the time that an
individual files his or her claim for benefits that
establishes his or her benefit year, inform the
individual that:
(a) unemployment insurance is subject to
federal, State, and local income taxes;
(b) requirements exist pertaining to estimated
tax payments;
(c) the individual may elect to have federal
income tax deducted and withheld from his or her
payments of unemployment insurance in the amount
specified in the federal Internal Revenue Code; and
(d) the individual is permitted to change a
previously elected withholding status no more than
once each calendar year.
(2) Amounts deducted and withheld from unemployment
insurance shall remain in the unemployment fund until
transferred to the federal taxing authority as a payment
of income tax.
(3) The Director shall follow all procedures
specified by the United States Department of Labor and
the federal Internal Revenue Service pertaining to the
deducting and withholding of income tax.
(4) Amounts shall be deducted and withheld in
accordance with the priorities established in rules
promulgated by the Director.
(D) Nothing in this Section prohibits an individual from
voluntarily electing to have State of Illinois income tax
deducted and withheld from his or her unemployment insurance
benefit payments if such deduction and withholding is
provided for pursuant to rules promulgated by the Director.
(1) If pursuant to rules promulgated by the
Director, an individual may voluntarily elect to have
State of Illinois income tax deducted and withheld from
his or her unemployment insurance benefit payments, the
Director shall, at the time that an individual files his
or her claim for benefits that establishes his or her
benefit year, in addition to providing the notice
required under subsection C, inform the individual that:
(a) the individual may elect to have State of
Illinois income tax deducted and withheld from his
or her payments of unemployment insurance in the
amount specified pursuant to rules promulgated by
the Director; and
(b) the individual is permitted to change a
previously elected withholding status no more than
once each calendar year.
(2) Amounts deducted and withheld from unemployment
insurance shall remain in the unemployment fund until
transferred to the Department of Revenue as a payment of
State of Illinois income tax.
(3) Amounts shall be deducted and withheld in
accordance with the priorities established in rules
promulgated by the Director.
(E) Nothing in this Section prohibits the deduction and
withholding of an uncollected overissuance of food stamp
coupons from unemployment insurance benefits pursuant to this
subsection (E).
(1) At the time that an individual files a claim
for benefits that establishes his or her benefit year,
that individual must disclose whether or not he or she
owes an uncollected overissuance (as defined in Section
13(c)(1) of the federal Food Stamp Act of 1977) of food
stamp coupons. The Director shall notify the State food
stamp agency enforcing such obligation of any individual
who discloses that he or she owes an uncollected
overissuance of food stamp coupons and who meets the
monetary eligibility requirements of subsection E of
Section 500.
(2) The Director shall deduct and withhold from any
unemployment insurance benefits payable to an individual
who owes an uncollected overissuance of food stamp
coupons:
(a) the amount specified by the individual to
the Director to be deducted and withheld under this
subsection (E);
(b) the amount (if any) determined pursuant to
an agreement submitted to the State food stamp
agency under Section 13(c)(3)(A) of the federal Food
Stamp Act of 1977; or
(c) any amount otherwise required to be
deducted and withheld from unemployment insurance
benefits pursuant to Section 13(c)(3)(B) of the
federal Food Stamp Act of 1977.
(3) Any amount deducted and withheld pursuant to
this subsection (E) shall be paid by the Director to the
State food stamp agency.
(4) Any amount deducted and withheld pursuant to
this subsection (E) shall for all purposes be treated as
if it were paid to the individual as unemployment
insurance benefits and paid by the individual to the
State food stamp agency as repayment of the individual's
uncollected overissuance of food stamp coupons.
(5) For purposes of this subsection (E),
"unemployment insurance benefits" means any compensation
payable under this Act including amounts payable by the
Director pursuant to an agreement under any federal law
providing for compensation, assistance, or allowances
with respect to unemployment.
(6) This subsection (E) applies only if
arrangements have been made for reimbursement by the
State food stamp agency for the administrative costs
incurred by the Director under this subsection (E) which
are attributable to the repayment of uncollected
overissuances of food stamp coupons to the State food
stamp agency.
(Source: P.A. 89-446, eff. 1-1-97.)
(820 ILCS 405/1801.1 new)
Sec. 1801.1. Directory of New Hires.
A. The Director shall establish and operate an automated
directory of newly hired employees which shall be known as
the "Illinois Directory of New Hires" which shall contain the
information required to be reported by employers to the
Department under subsection B. In the administration of the
Directory, the Director shall comply with any requirements
concerning the Employer New Hire Reporting Program
established by the federal Personal Responsibility and Work
Opportunity Reconciliation Act of 1996. The Director is
authorized to use the information contained in the Directory
of New Hires to administer any of the provisions of this Act.
B. On and after October 1, 1997, each employer in
Illinois, except a department, agency, or instrumentality of
the United States, shall file with the Department a report in
accordance with rules adopted by the Department (but in any
event not later than 20 days after the date the employer
hires the employee or, in the case of an employer
transmitting reports magnetically or electronically, by 2
monthly transmissions, if necessary, not less than 12 days
nor more than 16 days apart) providing the following
information concerning each newly hired employee: the
employee's name, address, and social security number, and the
employer's name, address, Federal Employer Identification
Number assigned under Section 6109 of the Internal Revenue
Code of 1986, and such other information as may be required
by federal law or regulation, provided that each employer may
voluntarily file the date of new hire, and the address to
which the employer wants income withholding orders to be
mailed, if it is different from the address given on the
Federal Employer Identification Number. An employer in
Illinois which transmits its reports electronically or
magnetically and which also has employees in another state
may report all newly hired employees to a single designated
state in which the employer has employees if it has so
notified the Secretary of the United States Department of
Health and Human Services in writing. An employer may, at its
option, submit information regarding any rehired employee in
the same manner as information is submitted regarding a newly
hired employee. Each report required under this subsection
shall be made on an Internal Revenue Service Form W-4 or, at
the option of the employer, an equivalent form, and may be
transmitted by first class mail, by telefax, magnetically, or
electronically.
C. An employer which knowingly fails to comply with the
reporting requirements established by this Section shall be
subject to a civil penalty of $15 for each individual whom it
fails to report. An employer shall be considered to have
knowingly failed to comply with the reporting requirements
established by this Section with respect to an individual if
the employer has been notified by the Department that it has
failed to report an individual, and it fails, without
reasonable cause, to supply the required information to the
Department within 21 days after the date of mailing of the
notice. Any individual who knowingly conspires with the newly
hired employee to cause the employer to fail to report the
information required by this Section or who knowingly
conspires with the newly hired employee to cause the employer
to file a false or incomplete report shall be guilty of a
Class B misdemeanor with a fine not to exceed $500 with
respect to each employee with whom the individual so
conspires.
D. As used in this Section, "newly hired employee" means
an individual who is an employee within the meaning of
Chapter 24 of the Internal Revenue Code of 1986, and whose
reporting to work which results in earnings from the employer
is the first instance within the preceding 180 days that the
individual has reported for work for which earnings were
received from that employer; however, "newly hired employee"
does not include an employee of a federal or State agency
performing intelligence or counterintelligence functions, if
the head of that agency has determined that the filing of the
report required by this Section with respect to the employee
could endanger the safety of the employee or compromise an
ongoing investigation or intelligence mission.
Notwithstanding Section 205, and for the purposes of this
Section only, the term "employer" has the meaning given by
Section 3401(d) of the Internal Revenue Code of 1986 and
includes any governmental entity and labor organization as
defined by Section 2(5) of the National Labor Relations Act,
and includes any entity (also known as a hiring hall) which
is used by the organization and an employer to carry out the
requirements described in Section 8(f)(3) of that Act of an
agreement between the organization and the employer.
(820 ILCS 405/1900) (from Ch. 48, par. 640)
Sec. 1900. Disclosure of information.
A. Except as provided in this Section, information
obtained from any individual or employing unit during the
administration of this Act shall:
1. be confidential,
2. not be published or open to public inspection,
3. not be used in any court in any pending action
or proceeding,
4. not be admissible in evidence in any action or
proceeding other than one arising out of this Act.
B. No finding, determination, decision, ruling or order
(including any finding of fact, statement or conclusion made
therein) issued pursuant to this Act shall be admissible or
used in evidence in any action other than one arising out of
this Act, nor shall it be binding or conclusive except as
provided in this Act, nor shall it constitute res judicata,
regardless of whether the actions were between the same or
related parties or involved the same facts.
C. Any officer or employee of this State, any officer or
employee of any entity authorized to obtain information
pursuant to this Section, and any agent of this State or of
such entity who, except with authority of the Director under
this Section, shall disclose information shall be guilty of a
Class B misdemeanor and shall be disqualified from holding
any appointment or employment by the State.
D. An individual or his duly authorized agent may be
supplied with information from records only to the extent
necessary for the proper presentation of his claim for
benefits or with his existing or prospective rights to
benefits. Discretion to disclose this information belongs
solely to the Director and is not subject to a release or
waiver by the individual.
E. An employing unit may be furnished with information,
only if deemed by the Director as necessary to enable it to
fully discharge its obligations or safeguard its rights under
the Act. Discretion to disclose this information belongs
solely to the Director and is not subject to a release or
waiver by the employing unit.
F. The Director may furnish any information that he may
deem proper to any public officer or public agency of this or
any other State or of the federal government dealing with:
1. the administration of relief,
2. public assistance,
3. unemployment compensation,
4. a system of public employment offices,
5. wages and hours of employment, or
6. a public works program.
The Director may make available to the Illinois
Industrial Commission information regarding employers for the
purpose of verifying the insurance coverage required under
the Workers' Compensation Act and Workers' Occupational
Diseases Act.
G. The Director may disclose information submitted by
the State or any of its political subdivisions, municipal
corporations, instrumentalities, or school or community
college districts, except for information which specifically
identifies an individual claimant.
H. The Director shall disclose only that information
required to be disclosed under Section 303 of the Social
Security Act, as amended, including:
1. any information required to be given the United
States Department of Labor under Section 303(a)(6); and
2. the making available upon request to any agency
of the United States charged with the administration of
public works or assistance through public employment, the
name, address, ordinary occupation and employment status
of each recipient of unemployment compensation, and a
statement of such recipient's right to further
compensation under such law as required by Section
303(a)(7); and
3. records to make available to the Railroad
Retirement Board as required by Section 303(c)(1); and
4. information that will assure reasonable
cooperation with every agency of the United States
charged with the administration of any unemployment
compensation law as required by Section 303(c)(2); and
5. information upon request and on a reimbursable
basis to the United States Department of Agriculture and
to any State food stamp agency concerning any information
required to be furnished by Section 303(d); and
6. any wage information upon request and on a
reimbursable basis to any State or local child support
enforcement agency required by Section 303(e); and
7. any information required under the income
eligibility and verification system as required by
Section 303(f); and
8. information that might be useful in locating an
absent parent or that parent's employer, establishing
paternity or establishing, modifying, or enforcing child
support orders for the purpose of a child support
enforcement program under Title IV of the Social Security
Act upon the request of and on a reimbursable basis to
the public agency administering the Federal Parent
Locator Service as required by Section 303(h); and
9. information, upon request, to representatives of
any federal, State or local governmental public housing
agency with respect to individuals who have signed the
appropriate consent form approved by the Secretary of
Housing and Urban Development and who are applying for or
participating in any housing assistance program
administered by the United States Department of Housing
and Urban Development as required by Section 303(i).
I. The Director, upon the request of a public agency of
Illinois, of the federal government or of any other state
charged with the investigation or enforcement of Section 10-5
of the Criminal Code of 1961 (or a similar federal law or
similar law of another State), may furnish the public agency
information regarding the individual specified in the request
as to:
1. the current or most recent home address of the
individual, and
2. the names and addresses of the individual's
employers.
J. Nothing in this Section shall be deemed to interfere
with the disclosure of certain records as provided for in
Section 1706 or with the right to make available to the
Internal Revenue Service of the United States Department of
the Treasury, or the Department of Revenue of the State of
Illinois, information obtained under this Act.
K. The Department shall make available to the State
Scholarship Commission, upon request that it may be necessary
or useful to the Commission in the collection of defaulted or
delinquent student loans which the Commission administers,
information limited to the names and addresses of a
borrower's employers.
L. The Department shall make available to the State
Employees' Retirement System, the State Universities
Retirement System, and the Teachers' Retirement System of the
State of Illinois, upon request, information in the
possession of the Department that may be necessary or useful
to the System for the purpose of determining whether any
recipient of a disability benefit from the System is
gainfully employed.
M. This Section shall be applicable to the information
obtained in the administration of the State employment
service, except that the Director may publish or release
general labor market information and may furnish information
that he may deem proper to an individual, public officer or
public agency of this or any other State or the federal
government (in addition to those public officers or public
agencies specified in this Section) as he prescribes by Rule.
N. The Director may require such safeguards as he deems
proper to insure that information disclosed pursuant to this
Section is used only for the purposes set forth in this
Section.
O. (Blank).
P. Within 30 days after the effective date of this
amendatory Act of 1993 and annually thereafter, the
Department shall provide to the Department of Financial
Institutions a list of individuals or entities that, for the
most recently completed calendar year, report to the
Department as paying wages to workers. The lists shall be
deemed confidential and may not be disclosed to any other
person.
Q. The Director shall make available to an elected
federal official the name and address of an individual or
entity that is located within the jurisdiction from which the
official was elected and that, for the most recently
completed calendar year, has reported to the Department as
paying wages to workers, where the information will be used
in connection with the official duties of the official and
the official requests the information in writing, specifying
the purposes for which it will be used. For purposes of this
subsection, the use of information in connection with the
official duties of an official does not include use of the
information in connection with the solicitation of
contributions or expenditures, in money or in kind, to or on
behalf of a candidate for public or political office or a
political party or with respect to a public question, as
defined in Section 1-3 of the Election Code, or in connection
with any commercial solicitation. Any elected federal
official who, in submitting a request for information covered
by this subsection, knowingly makes a false statement or
fails to disclose a material fact, with the intent to obtain
the information for a purpose not authorized by this
subsection, shall be guilty of a Class B misdemeanor.
R. The Director may provide to any State or local child
support agency, upon request and on a reimbursable basis,
information that might be useful in locating an absent parent
or that parent's employer, establishing paternity, or
establishing, modifying, or enforcing child support orders.
(Source: P.A. 88-435; 89-446, eff. 2-8-96; 89-493, eff.
1-1-97.)
Section 95. No acceleration or delay. Where this Act
makes changes in a statute that is represented in this Act by
text that is not yet or no longer in effect (for example, a
Section represented by multiple versions), the use of that
text does not accelerate or delay the taking effect of (i)
the changes made by this Act or (ii) provisions derived from
any other Public Act.
Section 99. Effective date. This Act takes effect upon
becoming law.