Public Act 90-0476 of the 90th General Assembly
Public Act 90-0476
HB2152 Enrolled LRB9004203SMdv
AN ACT regarding enforcement of child support orders.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Civil Procedure is amended by
changing Section 12-112 as follows:
(735 ILCS 5/12-112) (from Ch. 110, par. 12-112)
Sec. 12-112. What liable to enforcement. All the lands,
tenements, real estate, goods and chattels (except such as is
by law declared to be exempt) of every person against whom
any judgment has been or shall be hereafter entered in any
court, for any debt, damages, costs, or other sum of money,
shall be liable to be sold upon such judgment. Any real
property, or any beneficial interest in a land trust, held in
tenancy by the entirety shall not be liable to be sold upon
judgment entered on or after October 1, 1990 against only one
of the tenants. However, any income from such property shall
be subject to garnishment as provided in Part 7 of this
Article XII, whether judgment has been entered against one or
both of the tenants.
If the court authorizes the piercing of the ownership
veil pursuant to Section 505 of the Illinois Marriage and
Dissolution of Marriage Act or Section 15 of the Illinois
Parentage Act of 1984, any assets determined to be those of
the non-custodial parent, although not held in name of the
non-custodial parent, shall be subject to attachment or other
provisional remedy in accordance with the procedure
prescribed by this Code. The court may not authorize
attachment of property or any other provisional remedy under
this paragraph unless it has obtained jurisdiction over the
entity holding title to the property by proper service on
that entity. With respect to assets which are real property,
no order entered as described in this paragraph shall affect
the rights of bona fide purchasers, mortgagees, judgment
creditors, or other lien holders who acquire their interests
in the property prior to the time a notice of lis pendens
pursuant to this Code or a copy of the order is placed of
record in the office of the recorder of deeds for the county
in which the real property is located.
This amendatory Act of 1995 is declarative of existing
law.
(Source: P.A. 89-88, eff. 6-30-95; 89-438, eff. 12-15-95.)
Section 10. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 505 as follows:
(750 ILCS 5/505) (from Ch. 40, par. 505)
Sec. 505. Child support; contempt; penalties.
(a) In a proceeding for dissolution of marriage, legal
separation, declaration of invalidity of marriage, a
proceeding for child support following dissolution of the
marriage by a court which lacked personal jurisdiction over
the absent spouse, a proceeding for modification of a
previous order for child support under Section 510 of this
Act, or any proceeding authorized under Section 501 or 601 of
this Act, the court may order either or both parents owing a
duty of support to a child of the marriage to pay an amount
reasonable and necessary for his support, without regard to
marital misconduct. The duty of support owed to a minor
child includes the obligation to provide for the reasonable
and necessary physical, mental and emotional health needs of
the child.
(1) The Court shall determine the minimum amount of
support by using the following guidelines:
Number of Children Percent of Supporting Party's
Net Income
1 20%
2 25%
3 32%
4 40%
5 45%
6 or more 50%
(2) The above guidelines shall be applied in each
case unless the court makes a finding that application of
the guidelines would be inappropriate, after considering
the best interests of the child in light of evidence
including but not limited to one or more of the following
relevant factors:
(a) the financial resources and needs of the
child;
(b) the financial resources and needs of the
custodial parent;
(c) the standard of living the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of
the child, and his educational needs; and
(e) the financial resources and needs of the
non-custodial parent.
If the court deviates from the guidelines, the
court's finding shall state the amount of support that
would have been required under the guidelines, if
determinable. The court shall include the reason or
reasons for the variance from the guidelines.
(3) "Net income" is defined as the total of all
income from all sources, minus the following deductions:
(a) Federal income tax (properly calculated
withholding or estimated payments);
(b) State income tax (properly calculated
withholding or estimated payments);
(c) Social Security (FICA payments);
(d) Mandatory retirement contributions
required by law or as a condition of employment;
(e) Union dues;
(f) Dependent and individual
health/hospitalization insurance premiums;
(g) Prior obligations of support or
maintenance actually paid pursuant to a court order;
(h) Expenditures for repayment of debts that
represent reasonable and necessary expenses for the
production of income, medical expenditures necessary
to preserve life or health, reasonable expenditures
for the benefit of the child and the other parent,
exclusive of gifts. The court shall reduce net
income in determining the minimum amount of support
to be ordered only for the period that such payments
are due and shall enter an order containing
provisions for its self-executing modification upon
termination of such payment period.
(4) In cases where the court order provides for
health/hospitalization insurance coverage pursuant to
Section 505.2 of this Act, the premiums for that
insurance, or that portion of the premiums for which the
supporting party is responsible in the case of insurance
provided through an employer's health insurance plan
where the employer pays a portion of the premiums, shall
be subtracted from net income in determining the minimum
amount of support to be ordered.
(4.5) In a proceeding for child support following
dissolution of the marriage by a court that lacked
personal jurisdiction over the absent spouse, and in
which the court is requiring payment of support for the
period before the date an order for current support is
entered, there is a rebuttable presumption that the
supporting party's net income for the prior period was
the same as his or her net income at the time the order
for current support is entered.
(5) If the net income cannot be determined because
of default or any other reason, the court shall order
support in an amount considered reasonable in the
particular case. The final order in all cases shall
state the support level in dollar amounts.
(b) Failure of either parent to comply with an order to
pay support shall be punishable as in other cases of
contempt. In addition to other penalties provided by law the
Court may, after finding the parent guilty of contempt, order
that the parent be:
(1) placed on probation with such conditions of
probation as the Court deems advisable;
(2) sentenced to periodic imprisonment for a period
not to exceed 6 months; provided, however, that the Court
may permit the parent to be released for periods of time
during the day or night to:
(A) work; or
(B) conduct a business or other self-employed
occupation.
The Court may further order any part or all of the
earnings of a parent during a sentence of periodic
imprisonment paid to the Clerk of the Circuit Court or to the
parent having custody or to the guardian having custody of
the minor children of the sentenced parent for the support of
said minor children until further order of the Court.
If there is a unity of interest and ownership sufficient
to render no financial separation between a non-custodial
parent and another person or persons or business entity, the
court may pierce the ownership veil of the person, persons,
or business entity to discover assets of the non-custodial
parent held in the name of that person, those persons, or
that business entity. The following circumstances are
sufficient to authorize a court to order discovery of the
assets of a person, persons, or business entity and to compel
the application of any discovered assets toward payment on
the judgment for support:
(1) the non-custodial parent and the person, persons, or
business entity maintain records together.
(2) the non-custodial parent and the person, persons, or
business entity fail to maintain an arms length relationship
between themselves with regard to any assets.
(3) the non-custodial parent transfers assets to the
person, persons, or business entity with the intent to
perpetrate a fraud on the custodial parent.
With respect to assets which are real property, no order
entered under this paragraph shall affect the rights of bona
fide purchasers, mortgagees, judgment creditors, or other
lien holders who acquire their interests in the property
prior to the time a notice of lis pendens pursuant to the
Code of Civil Procedure or a copy of the order is placed of
record in the office of the recorder of deeds for the county
in which the real property is located.
The court may also order in cases where the parent is 90
days or more delinquent in payment of support or has been
adjudicated in arrears in an amount equal to 90 days
obligation or more, that the parent's Illinois driving
privileges be suspended until the court determines that the
parent is in compliance with the order of support. The court
may also order that the parent be issued a family financial
responsibility driving permit that would allow limited
driving privileges for employment and medical purposes in
accordance with Section 7-702.1 of the Illinois Vehicle Code.
The clerk of the circuit court shall certify the order
suspending the driving privileges of the parent or granting
the issuance of a family financial responsibility driving
permit to the Secretary of State on forms prescribed by the
Secretary. Upon receipt of the authenticated documents, the
Secretary of State shall suspend the parent's driving
privileges until further order of the court and shall, if
ordered by the court, subject to the provisions of Section
7-702.1 of the Illinois Vehicle Code, issue a family
financial responsibility driving permit to the parent.
(c) A one-time charge of 20% is imposable upon the
amount of past-due child support owed on July 1, 1988 which
has accrued under a support order entered by the court. The
charge shall be imposed in accordance with the provisions of
Section 10-21 of the Illinois Public Aid Code and shall be
enforced by the court upon petition.
(d) Any new or existing support order entered by the
court under this Section shall be deemed to be a series of
judgments against the person obligated to pay support
thereunder, each such judgment to be in the amount of each
payment or installment of support and each such judgment to
be deemed entered as of the date the corresponding payment or
installment becomes due under the terms of the support order.
Each such judgment shall have the full force, effect and
attributes of any other judgment of this State, including the
ability to be enforced.
(e) When child support is to be paid through the clerk
of the court in a county of 1,000,000 inhabitants or less,
the order shall direct the obligor to pay to the clerk, in
addition to the child support payments, all fees imposed by
the county board under paragraph (3) of subsection (u) of
Section 27.1 of the Clerks of Courts Act. Unless paid in
cash or pursuant to an order for withholding, the payment of
the fee shall be by a separate instrument from the support
payment and shall be made to the order of the Clerk.
(f) An order for support entered or modified in a case
in which a party is receiving child and spouse support
services under Article X of the Illinois Public Aid Code
shall include a provision requiring the obligor to notify the
Illinois Department of Public Aid, within 7 days, (i) of the
name and address of any new employer of the obligor, (ii)
whether the obligor has access to health insurance coverage
through the employer or other group coverage, and (iii) if
so, the policy name and number and the names of persons
covered under the policy.
(g) An order for support shall include a date on which
the current support obligation terminates. The termination
date shall be no earlier than the date on which the child
covered by the order will attain the age of majority or is
otherwise emancipated. The order for support shall state
that the termination date does not apply to any arrearage
that may remain unpaid on that date. Nothing in this
subsection shall be construed to prevent the court from
modifying the order.
(Source: P.A. 88-307; 88-687, eff. 1-24-95; 89-88, eff.
6-30-95; 89-92, eff. 7-1-96; 89-626, eff. 8-9-96.)
Section 15. The Illinois Parentage Act of 1984 is
amended by changing Section 15 as follows:
(750 ILCS 45/15) (from Ch. 40, par. 2515)
Sec. 15. Enforcement of Judgment or Order.
(a) If existence of the parent and child relationship is
declared, or paternity or duty of support has been
established under this Act or under prior law or under the
law of any other jurisdiction, the judgment rendered
thereunder may be enforced in the same or other proceedings
by any party or any person or agency that has furnished or
may furnish financial assistance or services to the child.
Sections 14, 16 and 20 of this Act shall also be applicable
with respect to entry, modification and enforcement of any
support judgment entered under provisions of the "Paternity
Act", approved July 5, 1957, as amended, repealed July 1,
1985.
(b) Failure to comply with any order of the court shall
be punishable as contempt as in other cases of failure to
comply under the "Illinois Marriage and Dissolution of
Marriage Act", as now or hereafter amended. In addition to
other penalties provided by law, the court may, after finding
the party guilty of contempt, order that the party be:
(1) Placed on probation with such conditions of
probation as the court deems advisable;
(2) Sentenced to periodic imprisonment for a period
not to exceed 6 months. However, the court may permit
the party to be released for periods of time during the
day or night to work or conduct business or other
self-employed occupation. The court may further order
any part of all the earnings of a party during a sentence
of periodic imprisonment to be paid to the Clerk of the
Circuit Court or to the person or parent having custody
of the minor child for the support of said child until
further order of the court.
(2.5) The court may also pierce the ownership veil
of a person, persons, or business entity to discover
assets of a non-custodial parent held in the name of that
person, those persons, or that business entity if there
is a unity of interest and ownership sufficient to render
no financial separation between the non-custodial parent
and that person, those persons, or the business entity.
The following circumstances are sufficient for a court to
order discovery of the assets of a person, persons, or
business entity and to compel the application of any
discovered assets toward payment on the judgment for
support:
(A) the non-custodial parent and the person,
persons, or business entity maintain records
together.
(B) the non-custodial parent and the person,
persons, or business entity fail to maintain an arms
length relationship between themselves with regard
to any assets.
(C) the non-custodial parent transfers assets
to the person, persons, or business entity with the
intent to perpetrate a fraud on the custodial
parent.
With respect to assets which are real property, no order
entered under this subdivision (2.5) shall affect the rights
of bona fide purchasers, mortgagees, judgment creditors, or
other lien holders who acquire their interests in the
property prior to the time a notice of lis pendens pursuant
to the Code of Civil Procedure or a copy of the order is
placed of record in the office of the recorder of deeds for
the county in which the real property is located.
(3) The court may also order that in cases where
the party is 90 days or more delinquent in payment of
support or has been adjudicated in arrears in an amount
equal to 90 days obligation or more, that the party's
Illinois driving privileges be suspended until the court
determines that the party is in compliance with the
judgement or duty of support. The court may also order
that the parent be issued a family financial
responsibility driving permit that would allow limited
driving privileges for employment and medical purposes in
accordance with Section 7-702.1 of the Illinois Vehicle
Code. The clerk of the circuit court shall certify the
order suspending the driving privileges of the parent or
granting the issuance of a family financial
responsibility driving permit to the Secretary of State
on forms prescribed by the Secretary. Upon receipt of the
authenticated documents, the Secretary of State shall
suspend the party's driving privileges until further
order of the court and shall, if ordered by the court,
subject to the provisions of Section 7-702.1 of the
Illinois Vehicle Code, issue a family financial
responsibility driving permit to the parent.
(c) In any post-judgment proceeding to enforce or modify
the judgment the parties shall continue to be designated as
in the original proceeding.
(Source: P.A. 89-92, eff. 7-1-96.)