Bill Amendment: IL HB3484 | 2021-2022 | 102nd General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: IMDMA-TEMPORARY RELIEF

Status: 2021-08-20 - Public Act . . . . . . . . . 102-0480 [HB3484 Detail]

Download: Illinois-2021-HB3484-House_Amendment_001.html

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Rep. Denyse Stoneback

Filed: 3/19/2021

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AMENDMENT TO HOUSE BILL 3484
AMENDMENT NO. ______. Amend House Bill 3484 by replacing
everything after the enacting clause with the following:
"Section 5. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Section 501 as follows:
(750 ILCS 5/501) (from Ch. 40, par. 501)
Sec. 501. Temporary relief. In all proceedings under this
Act, temporary relief shall be as follows:
(a) Either party may petition or move for:
(1) temporary maintenance or temporary support of a
child of the marriage entitled to support, accompanied by
an affidavit as to the factual basis for the relief
requested. One form of financial affidavit, as determined
by the Supreme Court, shall be used statewide. The
financial affidavit shall be supported by documentary
evidence including, but not limited to, income tax

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returns, pay stubs, and banking statements. Unless the
court otherwise directs, any affidavit or supporting
documentary evidence submitted pursuant to this paragraph
shall not be made part of the public record of the
proceedings but shall be available to the court or an
appellate court in which the proceedings are subject to
review, to the parties, their attorneys, and such other
persons as the court may direct. Upon motion of a party, a
court may hold a hearing to determine whether and why
there is a disparity between a party's sworn affidavit and
the supporting documentation. If a party intentionally or
recklessly files an inaccurate or misleading financial
affidavit, the court shall impose significant penalties
and sanctions including, but not limited to, costs and
attorney's fees;
(2) a temporary restraining order or preliminary
injunction, accompanied by affidavit showing a factual
basis for any of the following relief:
(i) restraining any person from transferring,
encumbering, concealing or otherwise disposing of any
property except in the usual course of business or for
the necessities of life, and, if so restrained,
requiring him to notify the moving party and his
attorney of any proposed extraordinary expenditures
made after the order is issued; however, an order need
not include an exception for transferring,

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encumbering, or otherwise disposing of property in the
usual course of business or for the necessities of
life if the court enters appropriate orders that
enable the parties to pay their necessary personal and
business expenses including, but not limited to,
appropriate professionals to assist the court pursuant
to subsection (l) of Section 503 to administer the
payment and accounting of such living and business
expenses;
(ii) enjoining a party from removing a child from
the jurisdiction of the court for more than 14 days;
(iii) enjoining a party from striking or
interfering with the personal liberty of the other
party or of any child; or
(iv) providing other injunctive relief proper in
the circumstances; or
(2.5) an allowance from the other party for a retainer
fee to obtain an attorney. The petition shall identify the
attorney to be retained and shall be accompanied by:
(i) a financial affidavit, supported by
documentary evidence;
(ii) an affidavit from the identified attorney
stating that the moving party has contacted the
attorney and agreed to retain the attorney and that
the attorney has agreed to enter an appearance if the
court grants the relief by the moving party; and

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(iii) a certificate stating that if an allowance
is granted, the party shall use it only for retaining
the attorney.
The court shall review the financial affidavit and
attorney affidavit, and, if appropriate, grant an
allowance to the party for a retainer fee. All awards
under this paragraph shall be paid directly to the
identified attorney; or
(3) other appropriate temporary relief including, in
the discretion of the court, ordering the purchase or sale
of assets and requiring that a party or parties borrow
funds in the appropriate circumstances.
Issues concerning temporary maintenance or temporary
support of a child entitled to support shall be dealt with on a
summary basis based on allocated parenting time, financial
affidavits, tax returns, pay stubs, banking statements, and
other relevant documentation, except an evidentiary hearing
may be held upon a showing of good cause. If a party
intentionally or recklessly files an inaccurate or misleading
financial affidavit, the court shall impose significant
penalties and sanctions including, but not limited to, costs
and attorney's fees resulting from the improper
representation.
(b) The court may issue a temporary restraining order
without requiring notice to the other party only if it finds,
on the basis of the moving affidavit or other evidence, that

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irreparable injury will result to the moving party if no order
is issued until the time for responding has elapsed.
(c) A response hereunder may be filed within 21 days after
service of notice of motion or at the time specified in the
temporary restraining order.
(c-1) As used in this subsection (c-1), "interim
attorney's fees and costs" means attorney's fees and costs
assessed from time to time while a case is pending, in favor of
the petitioning party's current counsel, for reasonable fees
and costs either already incurred or to be incurred, and
"interim award" means an award of interim attorney's fees and
costs. Interim awards shall be governed by the following:
(1) Except for good cause shown, a proceeding for (or
relating to) interim attorney's fees and costs in a
pre-judgment dissolution proceeding shall be
nonevidentiary and summary in nature. All hearings for or
relating to interim attorney's fees and costs under this
subsection shall be scheduled expeditiously by the court.
When a party files a petition for interim attorney's fees
and costs supported by one or more affidavits that
delineate relevant factors, the court (or a hearing
officer) shall assess an interim award after affording the
opposing party a reasonable opportunity to file a
responsive pleading. A responsive pleading shall set out
the amount of each retainer or other payment or payments,
or both, previously paid to the responding party's counsel

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by or on behalf of the responding party. A responsive
pleading shall include costs incurred, and shall indicate
whether the costs are paid or unpaid. In assessing an
interim award, the court shall consider all relevant
factors, as presented, that appear reasonable and
necessary, including to the extent applicable:
(A) the income and property of each party,
including alleged marital property within the sole
control of one party and alleged non-marital property
within access to a party;
(B) the needs of each party;
(C) the realistic earning capacity of each party;
(D) any impairment to present earning capacity of
either party, including age and physical and emotional
health;
(E) the standard of living established during the
marriage;
(F) the degree of complexity of the issues,
including allocation of parental responsibility,
valuation or division (or both) of closely held
businesses, and tax planning, as well as reasonable
needs for expert investigations or expert witnesses,
or both;
(G) each party's access to relevant information;
(H) the amount of the payment or payments made or
reasonably expected to be made to the attorney for the

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other party; and
(I) any other factor that the court expressly
finds to be just and equitable.
(2) Any assessment of an interim award (including one
pursuant to an agreed order) shall be without prejudice to
any final allocation and without prejudice as to any claim
or right of either party or any counsel of record at the
time of the award. Any such claim or right may be presented
by the appropriate party or counsel at a hearing on
contribution under subsection (j) of Section 503 or a
hearing on counsel's fees under subsection (c) of Section
508. Unless otherwise ordered by the court at the final
hearing between the parties or in a hearing under
subsection (j) of Section 503 or subsection (c) of Section
508, interim awards, as well as the aggregate of all other
payments by each party to counsel and related payments to
third parties, shall be deemed to have been advances from
the parties' marital estate. Any portion of any interim
award constituting an overpayment shall be remitted back
to the appropriate party or parties, or, alternatively, to
successor counsel, as the court determines and directs,
after notice in a form designated by the Supreme Court. An
order for the award of interim attorney's fees shall be a
standardized form order and labeled "Interim Fee Award
Order".
(3) In any proceeding under this subsection (c-1), the

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court (or hearing officer) shall assess an interim award
against an opposing party in an amount necessary to enable
the petitioning party to participate adequately in the
litigation, upon findings that the party from whom
attorney's fees and costs are sought has the financial
ability to pay reasonable amounts and that the party
seeking attorney's fees and costs lacks sufficient access
to assets or income to pay reasonable amounts. In
determining an award, the court shall consider whether
adequate participation in the litigation requires
expenditure of more fees and costs for a party that is not
in control of assets or relevant information. Except for
good cause shown, an interim award shall not be less than
payments made or reasonably expected to be made to the
counsel for the other party. If the court finds that both
parties lack financial ability or access to assets or
income for reasonable attorney's fees and costs, the court
(or hearing officer) shall enter an order that allocates
available funds for each party's counsel, including
retainers or interim payments, or both, previously paid,
in a manner that achieves substantial parity between the
parties.
(4) The changes to this Section 501 made by this
amendatory Act of 1996 apply to cases pending on or after
June 1, 1997, except as otherwise provided in Section 508.
(c-2) Allocation of use of marital residence. Where there

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is on file a verified complaint or verified petition seeking
temporary eviction from the marital residence, the court may,
during the pendency of the proceeding, only in cases where the
physical or mental well-being of either spouse or his or her
children is jeopardized by occupancy of the marital residence
by both spouses, and only upon due notice and full hearing,
unless waived by the court on good cause shown, enter orders
granting the exclusive possession of the marital residence to
either spouse, by eviction from, or restoration of, the
marital residence, until the final determination of the cause
pursuant to the factors listed in Section 602.7 of this Act. No
such order shall in any manner affect any estate in homestead
property of either party. In entering orders under this
subsection (c-2), the court shall balance hardships to the
parties.
(d) A temporary order entered under this Section:
(1) does not prejudice the rights of the parties or
the child which are to be adjudicated at subsequent
hearings in the proceeding;
(2) may be revoked or modified before final judgment,
on a showing by affidavit and upon hearing; and
(3) terminates when the final judgment is entered or
when the petition for dissolution of marriage or legal
separation or declaration of invalidity of marriage is
dismissed.
(e) The fees or costs of mediation shall be borne by the

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parties and may be assessed by the court as it deems equitable
without prejudice and are subject to reallocation at the
conclusion of the case.
(f) Companion animals. Either party may petition or move
for the temporary allocation of sole or joint possession of
and responsibility for a companion animal jointly owned by the
parties. In issuing an order under this subsection, the court
shall take into consideration the well-being of the companion
animal. As used in this Section, "companion animal" does not
include a service animal as defined in Section 2.01c of the
Humane Care for Animals Act.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17;
100-422, eff. 1-1-18.)".