Bill Text: IL SB2289 | 2017-2018 | 100th General Assembly | Chaptered


Bill Title: Amends the Code of Criminal Procedure of 1963, the Illinois Marriage and Dissolution of Marriage Act, and the Illinois Domestic Violence Act of 1986 by correcting cross references to Sections that have been repealed and by changing a county population threshold.

Spectrum: Slight Partisan Bill (Democrat 3-1)

Status: (Passed) 2018-08-17 - Public Act . . . . . . . . . 100-0923 [SB2289 Detail]

Download: Illinois-2017-SB2289-Chaptered.html



Public Act 100-0923
SB2289 EnrolledLRB100 15957 HEP 31700 b
AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Criminal Procedure of 1963 is
amended by changing Section 112A-14 as follows:
(725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
Sec. 112A-14. Order of protection; remedies.
(a) (Blank).
(b) The court may order any of the remedies listed in this
subsection. The remedies listed in this subsection shall be in
addition to other civil or criminal remedies available to
petitioner.
(1) Prohibition of abuse. Prohibit respondent's
harassment, interference with personal liberty,
intimidation of a dependent, physical abuse or willful
deprivation, as defined in this Article, if such abuse has
occurred or otherwise appears likely to occur if not
prohibited.
(2) Grant of exclusive possession of residence.
Prohibit respondent from entering or remaining in any
residence, household, or premises of the petitioner,
including one owned or leased by respondent, if petitioner
has a right to occupancy thereof. The grant of exclusive
possession of the residence, household, or premises shall
not affect title to real property, nor shall the court be
limited by the standard set forth in subsection (c-2) of
Section 501 Section 701 of the Illinois Marriage and
Dissolution of Marriage Act.
(A) Right to occupancy. A party has a right to
occupancy of a residence or household if it is solely
or jointly owned or leased by that party, that party's
spouse, a person with a legal duty to support that
party or a minor child in that party's care, or by any
person or entity other than the opposing party that
authorizes that party's occupancy (e.g., a domestic
violence shelter). Standards set forth in subparagraph
(B) shall not preclude equitable relief.
(B) Presumption of hardships. If petitioner and
respondent each has the right to occupancy of a
residence or household, the court shall balance (i) the
hardships to respondent and any minor child or
dependent adult in respondent's care resulting from
entry of this remedy with (ii) the hardships to
petitioner and any minor child or dependent adult in
petitioner's care resulting from continued exposure to
the risk of abuse (should petitioner remain at the
residence or household) or from loss of possession of
the residence or household (should petitioner leave to
avoid the risk of abuse). When determining the balance
of hardships, the court shall also take into account
the accessibility of the residence or household.
Hardships need not be balanced if respondent does not
have a right to occupancy.
The balance of hardships is presumed to favor
possession by petitioner unless the presumption is
rebutted by a preponderance of the evidence, showing
that the hardships to respondent substantially
outweigh the hardships to petitioner and any minor
child or dependent adult in petitioner's care. The
court, on the request of petitioner or on its own
motion, may order respondent to provide suitable,
accessible, alternate housing for petitioner instead
of excluding respondent from a mutual residence or
household.
(3) Stay away order and additional prohibitions. Order
respondent to stay away from petitioner or any other person
protected by the order of protection, or prohibit
respondent from entering or remaining present at
petitioner's school, place of employment, or other
specified places at times when petitioner is present, or
both, if reasonable, given the balance of hardships.
Hardships need not be balanced for the court to enter a
stay away order or prohibit entry if respondent has no
right to enter the premises.
(A) If an order of protection grants petitioner
exclusive possession of the residence, or prohibits
respondent from entering the residence, or orders
respondent to stay away from petitioner or other
protected persons, then the court may allow respondent
access to the residence to remove items of clothing and
personal adornment used exclusively by respondent,
medications, and other items as the court directs. The
right to access shall be exercised on only one occasion
as the court directs and in the presence of an
agreed-upon adult third party or law enforcement
officer.
(B) When the petitioner and the respondent attend
the same public, private, or non-public elementary,
middle, or high school, the court when issuing an order
of protection and providing relief shall consider the
severity of the act, any continuing physical danger or
emotional distress to the petitioner, the educational
rights guaranteed to the petitioner and respondent
under federal and State law, the availability of a
transfer of the respondent to another school, a change
of placement or a change of program of the respondent,
the expense, difficulty, and educational disruption
that would be caused by a transfer of the respondent to
another school, and any other relevant facts of the
case. The court may order that the respondent not
attend the public, private, or non-public elementary,
middle, or high school attended by the petitioner,
order that the respondent accept a change of placement
or change of program, as determined by the school
district or private or non-public school, or place
restrictions on the respondent's movements within the
school attended by the petitioner. The respondent
bears the burden of proving by a preponderance of the
evidence that a transfer, change of placement, or
change of program of the respondent is not available.
The respondent also bears the burden of production with
respect to the expense, difficulty, and educational
disruption that would be caused by a transfer of the
respondent to another school. A transfer, change of
placement, or change of program is not unavailable to
the respondent solely on the ground that the respondent
does not agree with the school district's or private or
non-public school's transfer, change of placement, or
change of program or solely on the ground that the
respondent fails or refuses to consent or otherwise
does not take an action required to effectuate a
transfer, change of placement, or change of program.
When a court orders a respondent to stay away from the
public, private, or non-public school attended by the
petitioner and the respondent requests a transfer to
another attendance center within the respondent's
school district or private or non-public school, the
school district or private or non-public school shall
have sole discretion to determine the attendance
center to which the respondent is transferred. If the
court order results in a transfer of the minor
respondent to another attendance center, a change in
the respondent's placement, or a change of the
respondent's program, the parents, guardian, or legal
custodian of the respondent is responsible for
transportation and other costs associated with the
transfer or change.
(C) The court may order the parents, guardian, or
legal custodian of a minor respondent to take certain
actions or to refrain from taking certain actions to
ensure that the respondent complies with the order. If
the court orders a transfer of the respondent to
another school, the parents, guardian, or legal
custodian of the respondent is responsible for
transportation and other costs associated with the
change of school by the respondent.
(4) Counseling. Require or recommend the respondent to
undergo counseling for a specified duration with a social
worker, psychologist, clinical psychologist, psychiatrist,
family service agency, alcohol or substance abuse program,
mental health center guidance counselor, agency providing
services to elders, program designed for domestic violence
abusers or any other guidance service the court deems
appropriate. The court may order the respondent in any
intimate partner relationship to report to an Illinois
Department of Human Services protocol approved partner
abuse intervention program for an assessment and to follow
all recommended treatment.
(5) Physical care and possession of the minor child. In
order to protect the minor child from abuse, neglect, or
unwarranted separation from the person who has been the
minor child's primary caretaker, or to otherwise protect
the well-being of the minor child, the court may do either
or both of the following: (i) grant petitioner physical
care or possession of the minor child, or both, or (ii)
order respondent to return a minor child to, or not remove
a minor child from, the physical care of a parent or person
in loco parentis.
If the respondent is charged with abuse (as defined in
Section 112A-3) of a minor child, there shall be a
rebuttable presumption that awarding physical care to
respondent would not be in the minor child's best interest.
(6) Temporary legal custody. Award temporary legal
custody to petitioner in accordance with this Section, the
Illinois Marriage and Dissolution of Marriage Act, the
Illinois Parentage Act of 2015, and this State's Uniform
Child-Custody Jurisdiction and Enforcement Act.
If the respondent is charged with abuse (as defined in
Section 112A-3) of a minor child, there shall be a
rebuttable presumption that awarding temporary legal
custody to respondent would not be in the child's best
interest.
(7) Visitation. Determine the visitation rights, if
any, of respondent in any case in which the court awards
physical care or temporary legal custody of a minor child
to petitioner. The court shall restrict or deny
respondent's visitation with a minor child if the court
finds that respondent has done or is likely to do any of
the following: (i) abuse or endanger the minor child during
visitation; (ii) use the visitation as an opportunity to
abuse or harass petitioner or petitioner's family or
household members; (iii) improperly conceal or detain the
minor child; or (iv) otherwise act in a manner that is not
in the best interests of the minor child. The court shall
not be limited by the standards set forth in Section 607.1
of the Illinois Marriage and Dissolution of Marriage Act.
If the court grants visitation, the order shall specify
dates and times for the visitation to take place or other
specific parameters or conditions that are appropriate. No
order for visitation shall refer merely to the term
"reasonable visitation".
Petitioner may deny respondent access to the minor
child if, when respondent arrives for visitation,
respondent is under the influence of drugs or alcohol and
constitutes a threat to the safety and well-being of
petitioner or petitioner's minor children or is behaving in
a violent or abusive manner.
If necessary to protect any member of petitioner's
family or household from future abuse, respondent shall be
prohibited from coming to petitioner's residence to meet
the minor child for visitation, and the parties shall
submit to the court their recommendations for reasonable
alternative arrangements for visitation. A person may be
approved to supervise visitation only after filing an
affidavit accepting that responsibility and acknowledging
accountability to the court.
(8) Removal or concealment of minor child. Prohibit
respondent from removing a minor child from the State or
concealing the child within the State.
(9) Order to appear. Order the respondent to appear in
court, alone or with a minor child, to prevent abuse,
neglect, removal or concealment of the child, to return the
child to the custody or care of the petitioner or to permit
any court-ordered interview or examination of the child or
the respondent.
(10) Possession of personal property. Grant petitioner
exclusive possession of personal property and, if
respondent has possession or control, direct respondent to
promptly make it available to petitioner, if:
(i) petitioner, but not respondent, owns the
property; or
(ii) the parties own the property jointly; sharing
it would risk abuse of petitioner by respondent or is
impracticable; and the balance of hardships favors
temporary possession by petitioner.
If petitioner's sole claim to ownership of the property
is that it is marital property, the court may award
petitioner temporary possession thereof under the
standards of subparagraph (ii) of this paragraph only if a
proper proceeding has been filed under the Illinois
Marriage and Dissolution of Marriage Act, as now or
hereafter amended.
No order under this provision shall affect title to
property.
(11) Protection of property. Forbid the respondent
from taking, transferring, encumbering, concealing,
damaging or otherwise disposing of any real or personal
property, except as explicitly authorized by the court, if:
(i) petitioner, but not respondent, owns the
property; or
(ii) the parties own the property jointly, and the
balance of hardships favors granting this remedy.
If petitioner's sole claim to ownership of the property
is that it is marital property, the court may grant
petitioner relief under subparagraph (ii) of this
paragraph only if a proper proceeding has been filed under
the Illinois Marriage and Dissolution of Marriage Act, as
now or hereafter amended.
The court may further prohibit respondent from
improperly using the financial or other resources of an
aged member of the family or household for the profit or
advantage of respondent or of any other person.
(11.5) Protection of animals. Grant the petitioner the
exclusive care, custody, or control of any animal owned,
possessed, leased, kept, or held by either the petitioner
or the respondent or a minor child residing in the
residence or household of either the petitioner or the
respondent and order the respondent to stay away from the
animal and forbid the respondent from taking,
transferring, encumbering, concealing, harming, or
otherwise disposing of the animal.
(12) Order for payment of support. Order respondent to
pay temporary support for the petitioner or any child in
the petitioner's care or custody, when the respondent has a
legal obligation to support that person, in accordance with
the Illinois Marriage and Dissolution of Marriage Act,
which shall govern, among other matters, the amount of
support, payment through the clerk and withholding of
income to secure payment. An order for child support may be
granted to a petitioner with lawful physical care or
custody of a child, or an order or agreement for physical
care or custody, prior to entry of an order for legal
custody. Such a support order shall expire upon entry of a
valid order granting legal custody to another, unless
otherwise provided in the custody order.
(13) Order for payment of losses. Order respondent to
pay petitioner for losses suffered as a direct result of
the abuse. Such losses shall include, but not be limited
to, medical expenses, lost earnings or other support,
repair or replacement of property damaged or taken,
reasonable attorney's fees, court costs and moving or other
travel expenses, including additional reasonable expenses
for temporary shelter and restaurant meals.
(i) Losses affecting family needs. If a party is
entitled to seek maintenance, child support or
property distribution from the other party under the
Illinois Marriage and Dissolution of Marriage Act, as
now or hereafter amended, the court may order
respondent to reimburse petitioner's actual losses, to
the extent that such reimbursement would be
"appropriate temporary relief", as authorized by
subsection (a)(3) of Section 501 of that Act.
(ii) Recovery of expenses. In the case of an
improper concealment or removal of a minor child, the
court may order respondent to pay the reasonable
expenses incurred or to be incurred in the search for
and recovery of the minor child, including, but not
limited to, legal fees, court costs, private
investigator fees, and travel costs.
(14) Prohibition of entry. Prohibit the respondent
from entering or remaining in the residence or household
while the respondent is under the influence of alcohol or
drugs and constitutes a threat to the safety and well-being
of the petitioner or the petitioner's children.
(14.5) Prohibition of firearm possession.
(A) A person who is subject to an existing order of
protection, issued under this Code may not lawfully
possess weapons under Section 8.2 of the Firearm Owners
Identification Card Act.
(B) Any firearms in the possession of the
respondent, except as provided in subparagraph (C) of
this paragraph (14.5), shall be ordered by the court to
be turned over to a person with a valid Firearm Owner's
Identification Card for safekeeping. The court shall
issue an order that the respondent's Firearm Owner's
Identification Card be turned over to the local law
enforcement agency, which in turn shall immediately
mail the card to the Department of State Police Firearm
Owner's Identification Card Office for safekeeping.
The period of safekeeping shall be for the duration of
the order of protection. The firearm or firearms and
Firearm Owner's Identification Card, if unexpired,
shall at the respondent's request be returned to the
respondent at expiration of the order of protection.
(C) If the respondent is a peace officer as defined
in Section 2-13 of the Criminal Code of 2012, the court
shall order that any firearms used by the respondent in
the performance of his or her duties as a peace officer
be surrendered to the chief law enforcement executive
of the agency in which the respondent is employed, who
shall retain the firearms for safekeeping for the
duration of the order of protection.
(D) Upon expiration of the period of safekeeping,
if the firearms or Firearm Owner's Identification Card
cannot be returned to respondent because respondent
cannot be located, fails to respond to requests to
retrieve the firearms, or is not lawfully eligible to
possess a firearm, upon petition from the local law
enforcement agency, the court may order the local law
enforcement agency to destroy the firearms, use the
firearms for training purposes, or for any other
application as deemed appropriate by the local law
enforcement agency; or that the firearms be turned over
to a third party who is lawfully eligible to possess
firearms, and who does not reside with respondent.
(15) Prohibition of access to records. If an order of
protection prohibits respondent from having contact with
the minor child, or if petitioner's address is omitted
under subsection (b) of Section 112A-5, or if necessary to
prevent abuse or wrongful removal or concealment of a minor
child, the order shall deny respondent access to, and
prohibit respondent from inspecting, obtaining, or
attempting to inspect or obtain, school or any other
records of the minor child who is in the care of
petitioner.
(16) Order for payment of shelter services. Order
respondent to reimburse a shelter providing temporary
housing and counseling services to the petitioner for the
cost of the services, as certified by the shelter and
deemed reasonable by the court.
(17) Order for injunctive relief. Enter injunctive
relief necessary or appropriate to prevent further abuse of
a family or household member or to effectuate one of the
granted remedies, if supported by the balance of hardships.
If the harm to be prevented by the injunction is abuse or
any other harm that one of the remedies listed in
paragraphs (1) through (16) of this subsection is designed
to prevent, no further evidence is necessary to establish
that the harm is an irreparable injury.
(18) Telephone services.
(A) Unless a condition described in subparagraph
(B) of this paragraph exists, the court may, upon
request by the petitioner, order a wireless telephone
service provider to transfer to the petitioner the
right to continue to use a telephone number or numbers
indicated by the petitioner and the financial
responsibility associated with the number or numbers,
as set forth in subparagraph (C) of this paragraph. For
purposes of this paragraph (18), the term "wireless
telephone service provider" means a provider of
commercial mobile service as defined in 47 U.S.C. 332.
The petitioner may request the transfer of each
telephone number that the petitioner, or a minor child
in his or her custody, uses. The clerk of the court
shall serve the order on the wireless telephone service
provider's agent for service of process provided to the
Illinois Commerce Commission. The order shall contain
all of the following:
(i) The name and billing telephone number of
the account holder including the name of the
wireless telephone service provider that serves
the account.
(ii) Each telephone number that will be
transferred.
(iii) A statement that the provider transfers
to the petitioner all financial responsibility for
and right to the use of any telephone number
transferred under this paragraph.
(B) A wireless telephone service provider shall
terminate the respondent's use of, and shall transfer
to the petitioner use of, the telephone number or
numbers indicated in subparagraph (A) of this
paragraph unless it notifies the petitioner, within 72
hours after it receives the order, that one of the
following applies:
(i) The account holder named in the order has
terminated the account.
(ii) A difference in network technology would
prevent or impair the functionality of a device on
a network if the transfer occurs.
(iii) The transfer would cause a geographic or
other limitation on network or service provision
to the petitioner.
(iv) Another technological or operational
issue would prevent or impair the use of the
telephone number if the transfer occurs.
(C) The petitioner assumes all financial
responsibility for and right to the use of any
telephone number transferred under this paragraph. In
this paragraph, "financial responsibility" includes
monthly service costs and costs associated with any
mobile device associated with the number.
(D) A wireless telephone service provider may
apply to the petitioner its routine and customary
requirements for establishing an account or
transferring a number, including requiring the
petitioner to provide proof of identification,
financial information, and customer preferences.
(E) Except for willful or wanton misconduct, a
wireless telephone service provider is immune from
civil liability for its actions taken in compliance
with a court order issued under this paragraph.
(F) All wireless service providers that provide
services to residential customers shall provide to the
Illinois Commerce Commission the name and address of an
agent for service of orders entered under this
paragraph (18). Any change in status of the registered
agent must be reported to the Illinois Commerce
Commission within 30 days of such change.
(G) The Illinois Commerce Commission shall
maintain the list of registered agents for service for
each wireless telephone service provider on the
Commission's website. The Commission may consult with
wireless telephone service providers and the Circuit
Court Clerks on the manner in which this information is
provided and displayed.
(c) Relevant factors; findings.
(1) In determining whether to grant a specific remedy,
other than payment of support, the court shall consider
relevant factors, including, but not limited to, the
following:
(i) the nature, frequency, severity, pattern and
consequences of the respondent's past abuse of the
petitioner or any family or household member,
including the concealment of his or her location in
order to evade service of process or notice, and the
likelihood of danger of future abuse to petitioner or
any member of petitioner's or respondent's family or
household; and
(ii) the danger that any minor child will be abused
or neglected or improperly removed from the
jurisdiction, improperly concealed within the State or
improperly separated from the child's primary
caretaker.
(2) In comparing relative hardships resulting to the
parties from loss of possession of the family home, the
court shall consider relevant factors, including, but not
limited to, the following:
(i) availability, accessibility, cost, safety,
adequacy, location and other characteristics of
alternate housing for each party and any minor child or
dependent adult in the party's care;
(ii) the effect on the party's employment; and
(iii) the effect on the relationship of the party,
and any minor child or dependent adult in the party's
care, to family, school, church and community.
(3) Subject to the exceptions set forth in paragraph
(4) of this subsection, the court shall make its findings
in an official record or in writing, and shall at a minimum
set forth the following:
(i) That the court has considered the applicable
relevant factors described in paragraphs (1) and (2) of
this subsection.
(ii) Whether the conduct or actions of respondent,
unless prohibited, will likely cause irreparable harm
or continued abuse.
(iii) Whether it is necessary to grant the
requested relief in order to protect petitioner or
other alleged abused persons.
(4) (Blank).
(5) Never married parties. No rights or
responsibilities for a minor child born outside of marriage
attach to a putative father until a father and child
relationship has been established under the Illinois
Parentage Act of 1984 or under the Illinois Parentage Act
of 2015 on and after the effective date of that Act. Absent
such an adjudication, no putative father shall be granted
temporary custody of the minor child, visitation with the
minor child, or physical care and possession of the minor
child, nor shall an order of payment for support of the
minor child be entered.
(d) Balance of hardships; findings. If the court finds that
the balance of hardships does not support the granting of a
remedy governed by paragraph (2), (3), (10), (11), or (16) of
subsection (b) of this Section, which may require such
balancing, the court's findings shall so indicate and shall
include a finding as to whether granting the remedy will result
in hardship to respondent that would substantially outweigh the
hardship to petitioner from denial of the remedy. The findings
shall be an official record or in writing.
(e) Denial of remedies. Denial of any remedy shall not be
based, in whole or in part, on evidence that:
(1) Respondent has cause for any use of force, unless
that cause satisfies the standards for justifiable use of
force provided by Article 7 of the Criminal Code of 2012;
(2) Respondent was voluntarily intoxicated;
(3) Petitioner acted in self-defense or defense of
another, provided that, if petitioner utilized force, such
force was justifiable under Article 7 of the Criminal Code
of 2012;
(4) Petitioner did not act in self-defense or defense
of another;
(5) Petitioner left the residence or household to avoid
further abuse by respondent;
(6) Petitioner did not leave the residence or household
to avoid further abuse by respondent;
(7) Conduct by any family or household member excused
the abuse by respondent, unless that same conduct would
have excused such abuse if the parties had not been family
or household members.
(Source: P.A. 99-85, eff. 1-1-16; 100-199, eff. 1-1-18;
100-388, eff. 1-1-18; revised 10-10-17.)
Section 10. The Illinois Marriage and Dissolution of
Marriage Act is amended by changing Sections 504, 505, and 510
as follows:
(750 ILCS 5/504) (from Ch. 40, par. 504)
Sec. 504. Maintenance.
(a) Entitlement to maintenance. In a proceeding for
dissolution of marriage, or legal separation, or declaration of
invalidity of marriage, or dissolution of a civil union, or a
proceeding for maintenance following a legal separation or
dissolution of the marriage or civil union by a court which
lacked personal jurisdiction over the absent spouse, a
proceeding for modification of a previous order for maintenance
under Section 510 of this Act, or any proceeding authorized
under Section 501 of this Act, the court may grant a
maintenance award for either spouse in amounts and for periods
of time as the court deems just, without regard to marital
misconduct, and the maintenance may be paid from the income or
property of the other spouse. The court shall first make a
finding as to determine whether a maintenance award is
appropriate, after consideration of all relevant factors,
including:
(1) the income and property of each party, including
marital property apportioned and non-marital property
assigned to the party seeking maintenance as well as all
financial obligations imposed on the parties as a result of
the dissolution of marriage;
(2) the needs of each party;
(3) the realistic present and future earning capacity
of each party;
(4) any impairment of the present and future earning
capacity of the party seeking maintenance due to that party
devoting time to domestic duties or having forgone or
delayed education, training, employment, or career
opportunities due to the marriage;
(5) any impairment of the realistic present or future
earning capacity of the party against whom maintenance is
sought;
(6) the time necessary to enable the party seeking
maintenance to acquire appropriate education, training,
and employment, and whether that party is able to support
himself or herself through appropriate employment; or
(6.1) the effect of any parental responsibility
arrangements and its effect on a party's ability to seek or
maintain the party seeking employment;
(7) the standard of living established during the
marriage;
(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and
sources of income, vocational skills, employability,
estate, liabilities, and the needs of each of the parties;
(10) all sources of public and private income
including, without limitation, disability and retirement
income;
(11) the tax consequences to each party of the property
division upon the respective economic circumstances of the
parties;
(12) contributions and services by the party seeking
maintenance to the education, training, career or career
potential, or license of the other spouse;
(13) any valid agreement of the parties; and
(14) any other factor that the court expressly finds to
be just and equitable.
(b) (Blank).
(b-1) Amount and duration of maintenance. Unless the court
finds that a maintenance award is appropriate, it shall bar
maintenance as to the party seeking maintenance regardless of
the length of the marriage at the time the action was
commenced. Only if If the court finds determines that a
maintenance award is appropriate, the court shall order
guideline maintenance in accordance with either paragraph (1)
or non-guideline maintenance in accordance with paragraph (2)
of this subsection (b-1). If the application of guideline
maintenance results in a combined maintenance and child support
obligation that exceeds 50% of the payor's net income, the
court may determine non-guideline maintenance in accordance
with paragraph (2) of this subsection (b-1), non-guideline
child support in accordance with paragraph (3.4) of subsection
(a) of Section 505, or both. :
(1) Maintenance award in accordance with guidelines.
If In situations when the combined gross annual income of
the parties is less than $500,000 and the payor has no
obligation to pay child support or maintenance or both from
a prior relationship, maintenance payable after the date
the parties' marriage is dissolved shall be in accordance
with subparagraphs (A) and (B) of this paragraph (1),
unless the court makes a finding that the application of
the guidelines would be inappropriate.
(A) The amount of maintenance under this paragraph
(1) shall be calculated by taking 33 1/3% of the
payor's net annual income minus 25% of the payee's net
annual income. The amount calculated as maintenance,
however, when added to the net income of the payee,
shall not result in the payee receiving an amount that
is in excess of 40% of the combined net income of the
parties.
(A-1) Modification of maintenance orders entered
before January 1, 2019 that are and continue to be
eligible for inclusion in the gross income of the payee
for federal income tax purposes and deductible by the
payor shall be calculated by taking 30% of the payor's
gross annual income minus 20% of the payee's gross
annual income, unless both parties expressly provide
otherwise in the modification order. The amount
calculated as maintenance, however, when added to the
gross income of the payee, may not result in the payee
receiving an amount that is in excess of 40% of the
combined gross income of the parties. The amount of
maintenance under this paragraph (1) shall be
calculated by taking 30% of the payor's gross annual
income minus 20% of the payee's gross annual income.
The amount calculated as maintenance, however, when
added to the gross income of the payee, may not result
in the payee receiving an amount that is in excess of
40% of the combined gross income of the parties.
(B) The duration of an award under this paragraph
(1) shall be calculated by multiplying the length of
the marriage at the time the action was commenced by
whichever of the following factors applies: less than 5
years (.20); 5 years or more but less than 6 years
(.24); 6 years or more but less than 7 years (.28); 7
years or more but less than 8 years (.32); 8 years or
more but less than 9 years (.36); 9 years or more but
less than 10 years (.40); 10 years or more but less
than 11 years (.44); 11 years or more but less than 12
years (.48); 12 years or more but less than 13 years
(.52); 13 years or more but less than 14 years (.56);
14 years or more but less than 15 years (.60); 15 years
or more but less than 16 years (.64); 16 years or more
but less than 17 years (.68); 17 years or more but less
than 18 years (.72); 18 years or more but less than 19
years (.76); 19 years or more but less than 20 years
(.80). For a marriage of 20 or more years, the court,
in its discretion, shall order maintenance for a period
equal to the length of the marriage or for an
indefinite term.
(1.5) In the discretion of the court, any term of
temporary maintenance paid by court order under pursuant to
Section 501 may be a corresponding credit to the duration
of maintenance set forth in subparagraph (b-1)(1)(B).
(2) Maintenance award not in accordance with
guidelines. Any non-guidelines award of maintenance shall
be made after the court's consideration of all relevant
factors set forth in subsection (a) of this Section.
(b-2) Findings. In each case involving the issue of
maintenance, the court shall make specific findings of fact, as
follows:
(1) the court shall state its reasoning for awarding or
not awarding maintenance and shall include references to
each relevant factor set forth in subsection (a) of this
Section; and
(2) if the court deviates from otherwise applicable
guidelines under paragraph (1) of subsection (b-1), it
shall state in its findings the amount of maintenance (if
determinable) or duration that would have been required
under the guidelines and the reasoning for any variance
from the guidelines; and .
(3) the court shall state whether the maintenance is
fixed-term, indefinite, reviewable, or reserved by the
court.
(b-3) Gross income. For purposes of this Section, the term
"gross income" means all income from all sources, within the
scope of that phrase in Section 505 of this Act, except
maintenance payments in the pending proceedings shall not be
included.
(b-3.5) Net income. As used in this Section, "net income"
has the meaning provided in Section 505 of this Act, except
maintenance payments in the pending proceedings shall not be
included.
(b-4) Modification of maintenance orders entered before
January 1, 2019. For any order for maintenance or unallocated
maintenance and child support entered before January 1, 2019
that is modified after December 31, 2018, payments thereunder
shall continue to retain the same tax treatment for federal
income tax purposes unless both parties expressly agree
otherwise and the agreement is included in the modification
order Unallocated maintenance. Unless the parties otherwise
agree, the court may not order unallocated maintenance and
child support in any dissolution judgment or in any
post-dissolution order. In its discretion, the court may order
unallocated maintenance and child support in any
pre-dissolution temporary order.
(b-4.5) Maintenance designation Fixed-term maintenance in
marriages of less than 10 years.
(1) Fixed-term maintenance. If a court grants
maintenance for a fixed term period under subsection (a) of
this Section at the conclusion of a case commenced before
the tenth anniversary of the marriage, the court shall may
also designate the termination of the period during which
this maintenance is to be paid. Maintenance is barred after
the end of the period during which fixed-term maintenance
is to be paid. as a "permanent termination". The effect of
this designation is that maintenance is barred after the
ending date of the period during which maintenance is to be
paid.
(2) Indefinite maintenance. If a court grants
maintenance for an indefinite term, the court shall not
designate a termination date. Indefinite maintenance shall
continue until modification or termination under Section
510.
(3) Reviewable maintenance. If a court grants
maintenance for a specific term with a review, the court
shall designate the period of the specific term and state
that the maintenance is reviewable. Upon review, the court
shall make a finding in accordance with subdivision (b-8)
of this Section, unless the maintenance is modified or
terminated under Section 510.
(b-5) Interest on maintenance. Any maintenance obligation
including any unallocated maintenance and child support
obligation, or any portion of any support obligation, that
becomes due and remains unpaid shall accrue simple interest as
set forth in Section 505 of this Act.
(b-7) Maintenance judgments. Any new or existing
maintenance order including any unallocated maintenance and
child 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, except no judgment shall arise as
to any installment coming due after the termination of
maintenance as provided by Section 510 of the Illinois Marriage
and Dissolution of Marriage Act or the provisions of any order
for maintenance. Each such judgment shall have the full force,
effect and attributes of any other judgment of this State,
including the ability to be enforced. Notwithstanding any other
State or local law to the contrary, a lien arises by operation
of law against the real and personal property of the obligor
for each installment of overdue support owed by the obligor.
(b-8) Review of maintenance. Upon review of any previously
ordered maintenance award, the court may extend maintenance for
further review, extend maintenance for a fixed non-modifiable
term, extend maintenance for an indefinite term, or permanently
terminate maintenance in accordance with subdivision
(b-1)(1)(A) of this Section.
(c) Maintenance during an appeal. The court may grant and
enforce the payment of maintenance during the pendency of an
appeal as the court shall deem reasonable and proper.
(d) Maintenance during imprisonment. No maintenance shall
accrue during the period in which a party is imprisoned for
failure to comply with the court's order for the payment of
such maintenance.
(e) Fees when maintenance is paid through the clerk. When
maintenance is to be paid through the clerk of the court in a
county of 500,000 1,000,000 inhabitants or less, the order
shall direct the obligor to pay to the clerk, in addition to
the maintenance payments, all fees imposed by the county board
under paragraph (4) of subsection (bb) of Section 27.1a
paragraph (3) of subsection (u) of Section 27.1 of the Clerks
of Courts Act. When maintenance is to be paid through the clerk
of the court in a county of more than 500,000 but less than
3,000,000 inhabitants, the order shall direct the obligor to
pay to the clerk, in addition to the maintenance payments, all
fees imposed by the county board under paragraph (4) of
subsection (bb) of Section 27.2 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) Maintenance secured by life insurance. An award ordered
by a court upon entry of a dissolution judgment or upon entry
of an award of maintenance following a reservation of
maintenance in a dissolution judgment may be reasonably
secured, in whole or in part, by life insurance on the payor's
life on terms as to which the parties agree, or, if the parties
they do not agree, on such terms determined by the court,
subject to the following:
(1) With respect to existing life insurance, provided
the court is apprised through evidence, stipulation, or
otherwise as to level of death benefits, premium, and other
relevant data and makes findings relative thereto, the
court may allocate death benefits, the right to assign
death benefits, or the obligation for future premium
payments between the parties as it deems just.
(2) To the extent the court determines that its award
should be secured, in whole or in part, by new life
insurance on the payor's life, the court may only order:
(i) that the payor cooperate on all appropriate
steps for the payee to obtain such new life insurance;
and
(ii) that the payee, at his or her sole option and
expense, may obtain such new life insurance on the
payor's life up to a maximum level of death benefit
coverage, or descending death benefit coverage, as is
set by the court, such level not to exceed a reasonable
amount in light of the court's award, with the payee or
the payee's designee being the beneficiary of such life
insurance.
In determining the maximum level of death benefit coverage,
the court shall take into account all relevant facts and
circumstances, including the impact on access to life
insurance by the maintenance payor. If in resolving any
issues under paragraph (2) of this subsection (f) a court
reviews any submitted or proposed application for new
insurance on the life of a maintenance payor, the review
shall be in camera.
(3) (Blank) A judgment shall expressly set forth that
all death benefits paid under life insurance on a payor's
life maintained or obtained pursuant to this subsection to
secure maintenance are designated as excludable from the
gross income of the maintenance payee under Section
71(b)(1)(B) of the Internal Revenue Code, unless an
agreement or stipulation of the parties otherwise
provides.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 100-520,
eff. 1-1-18 (see Section 5 of P.A. 100-565 for the effective
date of P.A. 100-520).)
(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, or
dissolution of a civil union, a proceeding for child support
following a legal separation or dissolution of the marriage or
civil union by a court that 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 or civil union to pay an amount
reasonable and necessary for support. The duty of support owed
to a child includes the obligation to provide for the
reasonable and necessary physical, mental and emotional health
needs of the child. For purposes of this Section, the term
"child" shall include any child under age 18 and any child age
19 or younger who is still attending high school. For purposes
of this Section, the term "obligor" means the parent obligated
to pay support to the other parent.
(1) Child support guidelines. The Illinois Department
of Healthcare and Family Services shall adopt rules
establishing child support guidelines which include
worksheets to aid in the calculation of the child support
obligations and a schedule of basic child support
obligations that reflects the percentage of combined net
income that parents living in the same household in this
State ordinarily spend on their child. The child support
guidelines have the following purposes:
(A) to establish as State policy an adequate
standard of support for a child, subject to the ability
of parents to pay;
(B) to make child support obligations more
equitable by ensuring more consistent treatment of
parents in similar circumstances;
(C) to improve the efficiency of the court process
by promoting settlements and giving courts and the
parties guidance in establishing levels of child
support;
(D) to calculate child support based upon the
parents' combined net income estimated to have been
allocated for the support of the child if the parents
and child were living in an intact household;
(E) to adjust child support based upon the needs of
the child; and
(F) to allocate the amount of child support to be
paid by each parent based upon a parent's net income
and the child's physical care arrangements.
(1.5) Computation of basic child support obligation.
The court shall compute the basic child support obligation
by taking the following steps:
(A) determine each parent's monthly net income;
(B) add the parents' monthly net incomes together
to determine the combined monthly net income of the
parents;
(C) select the corresponding appropriate amount
from the schedule of basic child support obligations
based on the parties' combined monthly net income and
number of children of the parties; and
(D) calculate each parent's percentage share of
the basic child support obligation.
Although a monetary obligation is computed for each
parent as child support, the receiving parent's share is
not payable to the other parent and is presumed to be spent
directly on the child.
(2) Duty of support. The court shall determine child
support in each case by applying the child support
guidelines unless the court makes a finding that
application of the guidelines would be inappropriate,
after considering the best interests of the child and
evidence which shows relevant factors including, but not
limited to, one or more of the following:
(A) the financial resources and needs of the child;
(B) the financial resources and needs of the
parents;
(C) the standard of living the child would have
enjoyed had the marriage or civil union not been
dissolved; and
(D) the physical and emotional condition of the
child and his or her educational needs.
(3) Income.
(A) As used in this Section, "gross income" means
the total of all income from all sources, except "gross
income" does not include (i) benefits received by the
parent from means-tested public assistance programs,
including, but not limited to, Temporary Assistance
for to Needy Families, Supplemental Security Income,
and the Supplemental Nutrition Assistance Program or
(ii) benefits and income received by the parent for
other children in the household, including, but not
limited to, child support, survivor benefits, and
foster care payments. Social security disability and
retirement benefits paid for the benefit of the subject
child must be included in the disabled or retired
parent's gross income for purposes of calculating the
parent's child support obligation, but the parent is
entitled to a child support credit for the amount of
benefits paid to the other party for the child. "Gross
income" also includes spousal maintenance treated as
taxable income for federal income tax purposes to the
payee and received pursuant to a court order in the
pending proceedings or any other proceedings and shall
that must be included in the payee's recipient's gross
income for purposes of calculating the parent's child
support obligation.
(B) As used in this Section, "net income" means
gross income minus either the standardized tax amount
calculated pursuant to subparagraph (C) of this
paragraph (3) or the individualized tax amount
calculated pursuant to subparagraph (D) of this
paragraph (3), and minus any adjustments pursuant to
subparagraph (F) of this paragraph (3). The
standardized tax amount shall be used unless the
requirements for an individualized tax amount set
forth in subparagraph (E) of this paragraph (3) are
met. "Net income" includes maintenance not includable
in the gross taxable income of the payee for federal
income tax purposes under a court order in the pending
proceedings or any other proceedings and shall be
included in the payee's net income for purposes of
calculating the parent's child support obligation.
(C) As used in this Section, "standardized tax
amount" means the total of federal and state income
taxes for a single person claiming the standard tax
deduction, one personal exemption, and the applicable
number of dependency exemptions for the minor child or
children of the parties, and Social Security and
Medicare tax calculated at the Federal Insurance
Contributions Act rate.
(I) Unless a court has determined otherwise or
the parties otherwise agree, the party with the
majority of parenting time shall be deemed
entitled to claim the dependency exemption for the
parties' minor child.
(II) The Illinois Department of Healthcare and
Family Services shall promulgate a standardized
net income conversion table that computes net
income by deducting the standardized tax amount
from gross income.
(D) As used in this Section, "individualized tax
amount" means the aggregate of the following taxes:
(I) federal income tax (properly calculated
withholding or estimated payments);
(II) State income tax (properly calculated
withholding or estimated payments); and
(III) Social Security or self-employment tax,
if applicable (or, if none, mandatory retirement
contributions required by law or as a condition of
employment) and Medicare tax calculated at the
Federal Insurance Contributions Act rate.
(E) In lieu of a standardized tax amount, a
determination of an individualized tax amount may be
made under items (I), (II), or (III) below. If an
individualized tax amount determination is made under
this subparagraph (E), all relevant tax attributes
(including filing status, allocation of dependency
exemptions, and whether a party is to claim the use of
the standard deduction or itemized deductions for
federal income tax purposes) shall be as the parties
agree or as the court determines. To determine a
party's reported income, the court may order the party
to complete an Internal Revenue Service Form 4506-T,
Request for Tax Transcript.
(I) Agreement. Irrespective of whether the
parties agree on any other issue before the court,
if they jointly stipulate for the record their
concurrence on a computation method for the
individualized tax amount that is different from
the method set forth under subparagraph (D), the
stipulated method shall be used by the court unless
the court rejects the proposed stipulated method
for good cause.
(II) Summary hearing. If the court determines
child support in a summary hearing under Section
501 and an eligible party opts in to the
individualized tax amount method under this item
(II), the individualized tax amount shall be
determined by the court on the basis of information
contained in one or both parties' Supreme Court
approved Financial Affidavit (Family & Divorce
Cases) and relevant supporting documents under
applicable court rules. No party, however, is
eligible to opt in unless the party, under
applicable court rules, has served the other party
with the required Supreme Court approved Financial
Affidavit (Family & Divorce Cases) and has
substantially produced supporting documents
required by the applicable court rules.
(III) Evidentiary hearing. If the court
determines child support in an evidentiary
hearing, whether for purposes of a temporary order
or at the conclusion of a proceeding, item (II) of
this subparagraph (E) does not apply. In each such
case (unless item (I) governs), the individualized
tax amount shall be as determined by the court on
the basis of the record established.
(F) Adjustments to income.
(I) Multi-family adjustment. If a parent is
also legally responsible for support of a child not
shared with the other parent and not subject to the
present proceeding, there shall be an adjustment
to net income as follows:
(i) Multi-family adjustment with court
order. The court shall deduct from the parent's
net income the amount of child support actually
paid by the parent pursuant to a support order
unless the court makes a finding that it would
cause economic hardship to the child.
(ii) Multi-family adjustment without court
order. Upon the request or application of a
parent actually supporting a presumed,
acknowledged, or adjudicated child living in
or outside of that parent's household, there
shall be an adjustment to child support. The
court shall deduct from the parent's net income
the amount of financial support actually paid
by the parent for the child or 75% of the
support the parent should pay under the child
support guidelines (before this adjustment),
whichever is less, unless the court makes a
finding that it would cause economic hardship
to the child. The adjustment shall be
calculated using that parent's income alone.
(II) Spousal Maintenance adjustment.
Obligations pursuant to a court order for spousal
maintenance in the pending proceeding actually
paid or payable to the same party to whom child
support is to be payable or actually paid to a
former spouse pursuant to a court order shall be
deducted from the parent's after-tax income,
unless the maintenance obligation is tax
deductible to the payor for federal income tax
purposes, in which case it shall be deducted from
the payor's gross income for purposes of
calculating the parent's child support obligation
gross income.
(3.1) Business income. For purposes of calculating
child support, net business income from the operation of a
business means gross receipts minus ordinary and necessary
expenses required to carry on the trade or business. As
used in this paragraph, "business" includes, but is not
limited to, sole proprietorships, closely held
corporations, partnerships, other flow-through business
entities, and self-employment. The court shall apply the
following:
(A) The accelerated component of depreciation and
any business expenses determined either judicially or
administratively to be inappropriate or excessive
shall be excluded from the total of ordinary and
necessary business expenses to be deducted in the
determination of net business income from gross
business income.
(B) Any item of reimbursement or in-kind payment
received by a parent from a business, including, but
not limited to, a company car, reimbursed meals, free
housing, or a housing allowance, shall be counted as
income if not otherwise included in the recipient's
gross income, if the item is significant in amount and
reduces personal expenses.
(3.2) Unemployment or underemployment. If a parent is
voluntarily unemployed or underemployed, child support
shall be calculated based on a determination of potential
income. A determination of potential income shall be made
by determining employment potential and probable earnings
level based on the obligor's work history, occupational
qualifications, prevailing job opportunities, the
ownership by a parent of a substantial non-income producing
asset, and earnings levels in the community. If there is
insufficient work history to determine employment
potential and probable earnings level, there shall be a
rebuttable presumption that the parent's potential income
is 75% of the most recent United States Department of
Health and Human Services Federal Poverty Guidelines for a
family of one person.
(3.3) Rebuttable presumption in favor of guidelines.
There is a rebuttable presumption in any judicial or
administrative proceeding for child support that the
amount of the child support obligation that would result
from the application of the child support guidelines is the
correct amount of child support.
(3.3a) Minimum child support obligation. There is a
rebuttable presumption that a minimum child support
obligation of $40 per month, per child, will be entered for
an obligor who has actual or imputed gross income at or
less than 75% of the most recent United States Department
of Health and Human Services Federal Poverty Guidelines for
a family of one person, with a maximum total child support
obligation for that obligor of $120 per month to be divided
equally among all of the obligor's children.
(3.3b) Zero dollar child support order. For parents
with no gross income, who receive only means-tested
assistance, or who cannot work due to a medically proven
disability, incarceration, or institutionalization, there
is a rebuttable presumption that the $40 per month minimum
support order is inapplicable and a zero dollar order shall
be entered.
(3.4) Deviation factors. In any action to establish or
modify child support, whether pursuant to a temporary or
final administrative or court order, the child support
guidelines shall be used as a rebuttable presumption for
the establishment or modification of the amount of child
support. The court may deviate from the child support
guidelines if the application would be inequitable,
unjust, or inappropriate. Any deviation from the
guidelines shall be accompanied by written findings by the
court specifying the reasons for the deviation and the
presumed amount under the child support guidelines without
a deviation. These reasons may include:
(A) extraordinary medical expenditures necessary
to preserve the life or health of a party or a child of
either or both of the parties;
(B) additional expenses incurred for a child
subject to the child support order who has special
medical, physical, or developmental needs; and
(C) any other factor the court determines should be
applied upon a finding that the application of the
child support guidelines would be inappropriate, after
considering the best interest of the child.
(3.5) Income in excess of the schedule of basic child
support obligation. A court may use its discretion to
determine child support if the combined adjusted net income
of the parties exceeds the highest level of the schedule of
basic child support obligation, except that the basic child
support obligation shall not be less than the highest level
of combined net income set forth in the schedule of basic
child support obligation.
(3.6) Extracurricular activities and school expenses.
The court, in its discretion, in addition to the basic
child support obligation, may order either or both parents
owing a duty of support to the child to contribute to the
reasonable school and extracurricular activity expenses
incurred which are intended to enhance the educational,
athletic, social, or cultural development of the child.
(3.7) Child care expenses. The court, in its
discretion, in addition to the basic child support
obligation, may order either or both parents owing a duty
of support to the child to contribute to the reasonable
child care expenses of the child. The child care expenses
shall be made payable directly to a party or directly to
the child care provider at the time of child care services.
(A) "Child care expenses" means actual expenses
reasonably necessary to enable a parent or non-parent
custodian to be employed, to attend educational or
vocational training programs to improve employment
opportunities, or to search for employment. "Child
care expenses" also includes deposits for securing
placement in a child care program, the cost of before
and after school care, and camps when school is not in
session. A child's special needs shall be a
consideration in determining reasonable child care
expenses.
(B) Child care expenses shall be prorated in
proportion to each parent's percentage share of
combined net income, and may be added to the basic
child support obligation if not paid directly by each
parent to the provider of child care services. The
obligor's and obligee's portion of actual child care
expenses shall appear in the support order. If allowed,
the value of the federal income tax credit for child
care shall be subtracted from the actual cost to
determine the net child care costs.
(C) The amount of child care expenses shall be
adequate to obtain reasonable and necessary child
care. The actual child care expenses shall be used to
calculate the child care expenses, if available. When
actual child care expenses vary, the actual child care
expenses may be averaged over the most recent 12-month
period. When a parent is temporarily unemployed or
temporarily not attending educational or vocational
training programs, future child care expenses shall be
based upon prospective expenses to be incurred upon
return to employment or educational or vocational
training programs.
(D) An order for child care expenses may be
modified upon a showing of a substantial change in
circumstances. The party incurring child care expenses
shall notify the other party within 14 days of any
change in the amount of child care expenses that would
affect the annualized child care amount as determined
in the support order.
(3.8) Shared physical care. If each parent exercises
146 or more overnights per year with the child, the basic
child support obligation is multiplied by 1.5 to calculate
the shared care child support obligation. The court shall
determine each parent's share of the shared care child
support obligation based on the parent's percentage share
of combined net income. The child support obligation is
then computed for each parent by multiplying that parent's
portion of the shared care support obligation by the
percentage of time the child spends with the other parent.
The respective child support obligations are then offset,
with the parent owing more child support paying the
difference between the child support amounts. The Illinois
Department of Healthcare and Family Services shall
promulgate a worksheet to calculate child support in cases
in which the parents have shared physical care and use the
standardized tax amount to determine net income.
(3.9) Split physical care. When there is more than one
child and each parent has physical care of at least one but
not all of the children, the support is calculated by using
2 child support worksheets to determine the support each
parent owes the other. The support shall be calculated as
follows:
(A) compute the support the first parent would owe
to other parent as if the child in his or her care was
the only child of the parties; then
(B) compute the support the other parent would owe
to the first parent as if the child in his or her care
were the only child of the parties; then
(C) subtract the lesser support obligation from
the greater.
The parent who owes the greater obligation shall be
ordered to pay the difference in support to the other
parent, unless the court determines, pursuant to other
provisions of this Section, that it should deviate from the
guidelines.
(4) Health care.
(A) A portion of the basic child support obligation
is intended to cover basic ordinary out-of-pocket
medical expenses. The court, in its discretion, in
addition to the basic child support obligation, shall
also provide for the child's current and future medical
needs by ordering either or both parents to initiate
health insurance coverage for the child through
currently effective health insurance policies held by
the parent or parents, purchase one or more or all
health, dental, or vision insurance policies for the
child, or provide for the child's current and future
medical needs through some other manner.
(B) The court, in its discretion, may order either
or both parents to contribute to the reasonable health
care needs of the child not covered by insurance,
including, but not limited to, unreimbursed medical,
dental, orthodontic, or vision expenses and any
prescription medication for the child not covered
under the child's health insurance.
(C) If neither parent has access to appropriate
private health insurance coverage, the court may
order:
(I) one or both parents to provide health
insurance coverage at any time it becomes
available at a reasonable cost; or
(II) the parent or non-parent custodian with
primary physical responsibility for the child to
apply for public health insurance coverage for the
child and require either or both parents to pay a
reasonable amount of the cost of health insurance
for the child.
The order may also provide that any time private
health insurance coverage is available at a reasonable
cost to that party it will be provided instead of cash
medical support. As used in this Section, "cash medical
support" means an amount ordered to be paid toward the
cost of health insurance provided by a public entity or
by another person through employment or otherwise or
for other medical costs not covered by insurance.
(D) The amount to be added to the basic child
support obligation shall be the actual amount of the
total health insurance premium that is attributable to
the child who is the subject of the order. If this
amount is not available or cannot be verified, the
total cost of the health insurance premium shall be
divided by the total number of persons covered by the
policy. The cost per person derived from this
calculation shall be multiplied by the number of
children who are the subject of the order and who are
covered under the health insurance policy. This amount
shall be added to the basic child support obligation
and shall be allocated between the parents in
proportion to their respective net incomes.
(E) After the health insurance premium for the
child is added to the basic child support obligation
and allocated between the parents in proportion to
their respective incomes for child support purposes,
if the obligor is paying the premium, the amount
calculated for the obligee's share of the health
insurance premium for the child shall be deducted from
the obligor's share of the total child support
obligation. If the obligee is paying for private health
insurance for the child, the child support obligation
shall be increased by the obligor's share of the
premium payment. The obligor's and obligee's portion
of health insurance costs shall appear in the support
order.
(F) Prior to allowing the health insurance
adjustment, the parent requesting the adjustment must
submit proof that the child has been enrolled in a
health insurance plan and must submit proof of the cost
of the premium. The court shall require the parent
receiving the adjustment to annually submit proof of
continued coverage of the child to the other parent, or
as designated by the court.
(G) A reasonable cost for providing health
insurance coverage for the child may not exceed 5% of
the providing parent's gross income. Parents with a net
income below 133% of the most recent United States
Department of Health and Human Services Federal
Poverty Guidelines or whose child is covered by
Medicaid based on that parent's income may not be
ordered to contribute toward or provide private
coverage, unless private coverage is obtainable
without any financial contribution by that parent.
(H) If dental or vision insurance is included as
part of the employer's medical plan, the coverage shall
be maintained for the child. If not included in the
employer's medical plan, adding the dental or vision
insurance for the child is at the discretion of the
court.
(I) If a parent has been directed to provide health
insurance pursuant to this paragraph and that parent's
spouse or legally recognized partner provides the
insurance for the benefit of the child either directly
or through employment, a credit on the child support
worksheet shall be given to that parent in the same
manner as if the premium were paid by that parent.
(4.5) In a proceeding for child support following
dissolution of the marriage or civil union 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
obligor'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. However, if the court finds that the
child support amount cannot be expressed exclusively as a
dollar amount because all or a portion of the obligor's net
income is uncertain as to source, time of payment, or
amount, the court may order a percentage amount of support
in addition to a specific dollar amount and enter such
other orders as may be necessary to determine and enforce,
on a timely basis, the applicable support ordered.
(6) If (i) the obligor was properly served with a
request for discovery of financial information relating to
the obligor's ability to provide child support, (ii) the
obligor failed to comply with the request, despite having
been ordered to do so by the court, and (iii) the obligor
is not present at the hearing to determine support despite
having received proper notice, then any relevant financial
information concerning the obligor's ability to provide
child support that was obtained pursuant to subpoena and
proper notice shall be admitted into evidence without the
need to establish any further foundation for its admission.
(a-5) In an action to enforce an order for child support
based on the obligor's failure to make support payments as
required by the order, notice of proceedings to hold the
obligor in contempt for that failure may be served on the
obligor by personal service or by regular mail addressed to the
last known address of the obligor. The last known address of
the obligor may be determined from records of the clerk of the
court, from the Federal Case Registry of Child Support Orders,
or by any other reasonable means.
(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 physical
possession of the child or to the non-parent custodian having
custody of the child of the sentenced parent for the support of
the child until further order of the court.
If a parent who is found guilty of contempt for failure to
comply with an order to pay support is a person who conducts a
business or who is self-employed, the court in addition to
other penalties provided by law may order that the parent do
one or more of the following: (i) provide to the court monthly
financial statements showing income and expenses from the
business or the self-employment; (ii) seek employment and
report periodically to the court with a diary, listing, or
other memorandum of his or her employment search efforts; or
(iii) report to the Department of Employment Security for job
search services to find employment that will be subject to
withholding for child support.
If there is a unity of interest and ownership sufficient to
render no financial separation between an obligor 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 obligor 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 obligor and the person, persons, or business
entity maintain records together.
(2) the obligor and the person, persons, or business
entity fail to maintain an arm's length relationship
between themselves with regard to any assets.
(3) the obligor transfers assets to the person,
persons, or business entity with the intent to perpetrate a
fraud on the obligee.
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 of State. 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.
In addition to the penalties or punishment that may be
imposed under this Section, any person whose conduct
constitutes a violation of Section 15 of the Non-Support
Punishment Act may be prosecuted under that Act, and a person
convicted under that Act may be sentenced in accordance with
that Act. The sentence may include but need not be limited to a
requirement that the person perform community service under
Section 50 of that Act or participate in a work alternative
program under Section 50 of that Act. A person may not be
required to participate in a work alternative program under
Section 50 of that Act if the person is currently participating
in a work program pursuant to Section 505.1 of this Act.
A support obligation, or any portion of a support
obligation, which becomes due and remains unpaid as of the end
of each month, excluding the child support that was due for
that month to the extent that it was not paid in that month,
shall accrue simple interest as set forth in Section 12-109 of
the Code of Civil Procedure. An order for support entered or
modified on or after January 1, 2006 shall contain a statement
that a support obligation required under the order, or any
portion of a support obligation required under the order, that
becomes due and remains unpaid as of the end of each month,
excluding the child support that was due for that month to the
extent that it was not paid in that month, shall accrue simple
interest as set forth in Section 12-109 of the Code of Civil
Procedure. Failure to include the statement in the order for
support does not affect the validity of the order or the
accrual of interest as provided in this Section.
(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. Notwithstanding any other State or local law to the
contrary, a lien arises by operation of law against the real
and personal property of the obligor for each installment of
overdue support owed by the obligor.
(e) When child support is to be paid through the Clerk of
the Court in a county of 500,000 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 (4) of subsection (bb) of Section
27.1a paragraph (3) of subsection (u) of Section 27.1 of the
Clerks of Courts Act. When child support is to be paid through
the clerk of the court in a county of more than 500,000 but
less than 3,000,000 inhabitants, 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
(4) of subsection (bb) of Section 27.2 of the Clerks of Courts
Act. Unless paid pursuant to an Income Withholding Order/Notice
for Support, the payment of the fee shall be by payment
acceptable to the clerk and shall be made to the order of the
Clerk.
(f) All orders for support, when entered or modified, shall
include a provision requiring the obligor to notify the court
and, in cases in which a party is receiving child and spouse
services under Article X of the Illinois Public Aid Code, the
Department of Healthcare and Family Services, within 7 days,
(i) of the name and address of any new employer of the obligor,
(ii) whether the obligor has access to health insurance
coverage through the employer or other group coverage and, if
so, the policy name and number and the names of persons covered
under the policy, except only the initials of any covered
minors shall be included, and (iii) of any new residential or
mailing address or telephone number of the obligor. In any
subsequent action to enforce a support order, upon a sufficient
showing that a diligent effort has been made to ascertain the
location of the obligor, service of process or provision of
notice necessary in the case may be made at the last known
address of the obligor in any manner expressly provided by the
Code of Civil Procedure or this Act, which service shall be
sufficient for purposes of due process.
(g) An order for support shall include a date on which the
current support obligation terminates. The termination date
shall be no earlier than the date on which the child covered by
the order will attain the age of 18. However, if the child will
not graduate from high school until after attaining the age of
18, then the termination date shall be no earlier than the
earlier of the date on which the child's high school graduation
will occur or the date on which the child will attain the age
of 19. The order for support shall state that the termination
date does not apply to any arrearage that may remain unpaid on
that date. Nothing in this subsection shall be construed to
prevent the court from modifying the order or terminating the
order in the event the child is otherwise emancipated.
(g-5) If there is an unpaid arrearage or delinquency (as
those terms are defined in the Income Withholding for Support
Act) equal to at least one month's support obligation on the
termination date stated in the order for support or, if there
is no termination date stated in the order, on the date the
child attains the age of majority or is otherwise emancipated,
the periodic amount required to be paid for current support of
that child immediately prior to that date shall automatically
continue to be an obligation, not as current support but as
periodic payment toward satisfaction of the unpaid arrearage or
delinquency. That periodic payment shall be in addition to any
periodic payment previously required for satisfaction of the
arrearage or delinquency. The total periodic amount to be paid
toward satisfaction of the arrearage or delinquency may be
enforced and collected by any method provided by law for
enforcement and collection of child support, including but not
limited to income withholding under the Income Withholding for
Support Act. Each order for support entered or modified on or
after January 1, 2005 (the effective date of Public Act
93-1061) this amendatory Act of the 93rd General Assembly must
contain a statement notifying the parties of the requirements
of this subsection. Failure to include the statement in the
order for support does not affect the validity of the order or
the operation of the provisions of this subsection with regard
to the order. This subsection shall not be construed to prevent
or affect the establishment or modification of an order for
support of a minor child or the establishment or modification
of an order for support of a non-minor child or educational
expenses under Section 513 of this Act.
(h) An order entered under this Section shall include a
provision requiring either parent to report to the other parent
and to the Clerk of Court within 10 days each time either
parent obtains new employment, and each time either parent's
employment is terminated for any reason. The report shall be in
writing and shall, in the case of new employment, include the
name and address of the new employer. Failure to report new
employment or the termination of current employment, if coupled
with nonpayment of support for a period in excess of 60 days,
is indirect criminal contempt. For either parent arrested for
failure to report new employment bond shall be set in the
amount of the child support that should have been paid during
the period of unreported employment. An order entered under
this Section shall also include a provision requiring either
obligor and obligee to advise the other of a change in
residence within 5 days of the change except when the court
finds that the physical, mental, or emotional health of a party
or that of a child, or both, would be seriously endangered by
disclosure of the party's address.
(i) The court does not lose the powers of contempt,
driver's license suspension, or other child support
enforcement mechanisms, including, but not limited to,
criminal prosecution as set forth in this Act, upon the
emancipation of the minor child.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; 99-764,
eff. 7-1-17; 100-15, eff. 7-1-17; revised 10-6-17.)
(750 ILCS 5/510) (from Ch. 40, par. 510)
Sec. 510. Modification and termination of provisions for
maintenance, support, educational expenses, and property
disposition.
(a) Except as otherwise provided in paragraph (f) of
Section 502 and in subsection (b), clause (3) of Section 505.2,
the provisions of any judgment respecting maintenance or
support may be modified only as to installments accruing
subsequent to due notice by the moving party of the filing of
the motion for modification. An order for child support may be
modified as follows:
(1) upon a showing of a substantial change in
circumstances; and
(2) without the necessity of showing a substantial
change in circumstances, as follows:
(A) upon a showing of an inconsistency of at least
20%, but no less than $10 per month, between the amount
of the existing order and the amount of child support
that results from application of the guidelines
specified in Section 505 of this Act unless the
inconsistency is due to the fact that the amount of the
existing order resulted from a deviation from the
guideline amount and there has not been a change in the
circumstances that resulted in that deviation; or
(B) upon a showing of a need to provide for the
health care needs of the child under the order through
health insurance or other means. In no event shall the
eligibility for or receipt of medical assistance be
considered to meet the need to provide for the child's
health care needs.
The provisions of subparagraph (a)(2)(A) shall apply only
in cases in which a party is receiving child support
enforcement services from the Department of Healthcare and
Family Services under Article X of the Illinois Public Aid
Code, and only when at least 36 months have elapsed since the
order for child support was entered or last modified.
The court may grant a petition for modification that seeks
to apply the changes made to subsection (a) of Section 505 by
Public Act 99-764 to an order entered before the effective date
of Public Act 99-764 only upon a finding of a substantial
change in circumstances that warrants application of the
changes. The enactment of Public Act 99-764 itself does not
constitute a substantial change in circumstances warranting a
modification.
(a-5) An order for maintenance may be modified or
terminated only upon a showing of a substantial change in
circumstances. The court may grant a petition for modification
that seeks to apply the changes made to Section 504 by this
amendatory Act of the 100th General Assembly to an order
entered before the effective date of this amendatory Act of the
100th General Assembly only upon a finding of a substantial
change in circumstances that warrants application of the
changes. The enactment of this amendatory Act of the 100th
General Assembly itself does not constitute a substantial
change in circumstances warranting a modification. In all such
proceedings, as well as in proceedings in which maintenance is
being reviewed, the court shall consider the applicable factors
set forth in subsection (a) of Section 504 and the following
factors:
(1) any change in the employment status of either party
and whether the change has been made in good faith;
(2) the efforts, if any, made by the party receiving
maintenance to become self-supporting, and the
reasonableness of the efforts where they are appropriate;
(3) any impairment of the present and future earning
capacity of either party;
(4) the tax consequences of the maintenance payments
upon the respective economic circumstances of the parties;
(5) the duration of the maintenance payments
previously paid (and remaining to be paid) relative to the
length of the marriage;
(6) the property, including retirement benefits,
awarded to each party under the judgment of dissolution of
marriage, judgment of legal separation, or judgment of
declaration of invalidity of marriage and the present
status of the property;
(7) the increase or decrease in each party's income
since the prior judgment or order from which a review,
modification, or termination is being sought;
(8) the property acquired and currently owned by each
party after the entry of the judgment of dissolution of
marriage, judgment of legal separation, or judgment of
declaration of invalidity of marriage; and
(9) any other factor that the court expressly finds to
be just and equitable.
(a-6) (Blank) In a review under subsection (b-4.5) of
Section 504 of this Act, the court may enter a fixed-term
maintenance award that bars future maintenance only if, at the
time of the entry of the award, the marriage had lasted 10
years or less at the time the original action was commenced.
(b) The provisions as to property disposition may not be
revoked or modified, unless the court finds the existence of
conditions that justify the reopening of a judgment under the
laws of this State.
(c) Unless otherwise agreed by the parties in a written
agreement set forth in the judgment or otherwise approved by
the court, the obligation to pay future maintenance is
terminated upon the death of either party, or the remarriage of
the party receiving maintenance, or if the party receiving
maintenance cohabits with another person on a resident,
continuing conjugal basis. An obligor's obligation to pay
maintenance or unallocated maintenance terminates by operation
of law on the date the obligee remarries or the date the court
finds cohabitation began. The obligor is entitled to
reimbursement for all maintenance paid from that date forward.
Any termination of an obligation for maintenance as a result of
the death of the obligor, however, shall be inapplicable to any
right of the other party or such other party's designee to
receive a death benefit under such insurance on the obligor's
life. An obligee must advise the obligor of his or her
intention to marry at least 30 days before the remarriage,
unless the decision is made within this time period. In that
event, he or she must notify the obligor within 72 hours of
getting married.
(c-5) In an adjudicated case, the court shall make specific
factual findings as to the reason for the modification as well
as the amount, nature, and duration of the modified maintenance
award.
(d) Unless otherwise provided in this Act, or as agreed in
writing or expressly provided in the judgment, provisions for
the support of a child are terminated by emancipation of the
child, or if the child has attained the age of 18 and is still
attending high school, provisions for the support of the child
are terminated upon the date that the child graduates from high
school or the date the child attains the age of 19, whichever
is earlier, but not by the death of a parent obligated to
support or educate the child. An existing obligation to pay for
support or educational expenses, or both, is not terminated by
the death of a parent. When a parent obligated to pay support
or educational expenses, or both, dies, the amount of support
or educational expenses, or both, may be enforced, modified,
revoked or commuted to a lump sum payment, as equity may
require, and that determination may be provided for at the time
of the dissolution of the marriage or thereafter.
(e) The right to petition for support or educational
expenses, or both, under Sections 505, 513, and 513.5 is not
extinguished by the death of a parent. Upon a petition filed
before or after a parent's death, the court may award sums of
money out of the decedent's estate for the child's support or
educational expenses, or both, as equity may require. The time
within which a claim may be filed against the estate of a
decedent under Sections 505 and 513 and subsection (d) and this
subsection shall be governed by the provisions of the Probate
Act of 1975, as a barrable, noncontingent claim.
(f) A petition to modify or terminate child support or the
allocation of parental responsibilities, including parenting
time, shall not delay any child support enforcement litigation
or supplementary proceeding on behalf of the obligee,
including, but not limited to, a petition for a rule to show
cause, for non-wage garnishment, or for a restraining order.
(Source: P.A. 99-90, eff. 1-1-16; 99-764, eff. 7-1-17; 100-15,
eff. 7-1-17; 100-201, eff. 8-18-17.)
Section 15. The Illinois Domestic Violence Act of 1986 is
amended by changing Section 214 as follows:
(750 ILCS 60/214) (from Ch. 40, par. 2312-14)
Sec. 214. Order of protection; remedies.
(a) Issuance of order. If the court finds that petitioner
has been abused by a family or household member or that
petitioner is a high-risk adult who has been abused, neglected,
or exploited, as defined in this Act, an order of protection
prohibiting the abuse, neglect, or exploitation shall issue;
provided that petitioner must also satisfy the requirements of
one of the following Sections, as appropriate: Section 217 on
emergency orders, Section 218 on interim orders, or Section 219
on plenary orders. Petitioner shall not be denied an order of
protection because petitioner or respondent is a minor. The
court, when determining whether or not to issue an order of
protection, shall not require physical manifestations of abuse
on the person of the victim. Modification and extension of
prior orders of protection shall be in accordance with this
Act.
(b) Remedies and standards. The remedies to be included in
an order of protection shall be determined in accordance with
this Section and one of the following Sections, as appropriate:
Section 217 on emergency orders, Section 218 on interim orders,
and Section 219 on plenary orders. The remedies listed in this
subsection shall be in addition to other civil or criminal
remedies available to petitioner.
(1) Prohibition of abuse, neglect, or exploitation.
Prohibit respondent's harassment, interference with
personal liberty, intimidation of a dependent, physical
abuse, or willful deprivation, neglect or exploitation, as
defined in this Act, or stalking of the petitioner, as
defined in Section 12-7.3 of the Criminal Code of 2012, if
such abuse, neglect, exploitation, or stalking has
occurred or otherwise appears likely to occur if not
prohibited.
(2) Grant of exclusive possession of residence.
Prohibit respondent from entering or remaining in any
residence, household, or premises of the petitioner,
including one owned or leased by respondent, if petitioner
has a right to occupancy thereof. The grant of exclusive
possession of the residence, household, or premises shall
not affect title to real property, nor shall the court be
limited by the standard set forth in subsection (c-2) of
Section 501 Section 701 of the Illinois Marriage and
Dissolution of Marriage Act.
(A) Right to occupancy. A party has a right to
occupancy of a residence or household if it is solely
or jointly owned or leased by that party, that party's
spouse, a person with a legal duty to support that
party or a minor child in that party's care, or by any
person or entity other than the opposing party that
authorizes that party's occupancy (e.g., a domestic
violence shelter). Standards set forth in subparagraph
(B) shall not preclude equitable relief.
(B) Presumption of hardships. If petitioner and
respondent each has the right to occupancy of a
residence or household, the court shall balance (i) the
hardships to respondent and any minor child or
dependent adult in respondent's care resulting from
entry of this remedy with (ii) the hardships to
petitioner and any minor child or dependent adult in
petitioner's care resulting from continued exposure to
the risk of abuse (should petitioner remain at the
residence or household) or from loss of possession of
the residence or household (should petitioner leave to
avoid the risk of abuse). When determining the balance
of hardships, the court shall also take into account
the accessibility of the residence or household.
Hardships need not be balanced if respondent does not
have a right to occupancy.
The balance of hardships is presumed to favor
possession by petitioner unless the presumption is
rebutted by a preponderance of the evidence, showing
that the hardships to respondent substantially
outweigh the hardships to petitioner and any minor
child or dependent adult in petitioner's care. The
court, on the request of petitioner or on its own
motion, may order respondent to provide suitable,
accessible, alternate housing for petitioner instead
of excluding respondent from a mutual residence or
household.
(3) Stay away order and additional prohibitions. Order
respondent to stay away from petitioner or any other person
protected by the order of protection, or prohibit
respondent from entering or remaining present at
petitioner's school, place of employment, or other
specified places at times when petitioner is present, or
both, if reasonable, given the balance of hardships.
Hardships need not be balanced for the court to enter a
stay away order or prohibit entry if respondent has no
right to enter the premises.
(A) If an order of protection grants petitioner
exclusive possession of the residence, or prohibits
respondent from entering the residence, or orders
respondent to stay away from petitioner or other
protected persons, then the court may allow respondent
access to the residence to remove items of clothing and
personal adornment used exclusively by respondent,
medications, and other items as the court directs. The
right to access shall be exercised on only one occasion
as the court directs and in the presence of an
agreed-upon adult third party or law enforcement
officer.
(B) When the petitioner and the respondent attend
the same public, private, or non-public elementary,
middle, or high school, the court when issuing an order
of protection and providing relief shall consider the
severity of the act, any continuing physical danger or
emotional distress to the petitioner, the educational
rights guaranteed to the petitioner and respondent
under federal and State law, the availability of a
transfer of the respondent to another school, a change
of placement or a change of program of the respondent,
the expense, difficulty, and educational disruption
that would be caused by a transfer of the respondent to
another school, and any other relevant facts of the
case. The court may order that the respondent not
attend the public, private, or non-public elementary,
middle, or high school attended by the petitioner,
order that the respondent accept a change of placement
or change of program, as determined by the school
district or private or non-public school, or place
restrictions on the respondent's movements within the
school attended by the petitioner. The respondent
bears the burden of proving by a preponderance of the
evidence that a transfer, change of placement, or
change of program of the respondent is not available.
The respondent also bears the burden of production with
respect to the expense, difficulty, and educational
disruption that would be caused by a transfer of the
respondent to another school. A transfer, change of
placement, or change of program is not unavailable to
the respondent solely on the ground that the respondent
does not agree with the school district's or private or
non-public school's transfer, change of placement, or
change of program or solely on the ground that the
respondent fails or refuses to consent or otherwise
does not take an action required to effectuate a
transfer, change of placement, or change of program.
When a court orders a respondent to stay away from the
public, private, or non-public school attended by the
petitioner and the respondent requests a transfer to
another attendance center within the respondent's
school district or private or non-public school, the
school district or private or non-public school shall
have sole discretion to determine the attendance
center to which the respondent is transferred. In the
event the court order results in a transfer of the
minor respondent to another attendance center, a
change in the respondent's placement, or a change of
the respondent's program, the parents, guardian, or
legal custodian of the respondent is responsible for
transportation and other costs associated with the
transfer or change.
(C) The court may order the parents, guardian, or
legal custodian of a minor respondent to take certain
actions or to refrain from taking certain actions to
ensure that the respondent complies with the order. In
the event the court orders a transfer of the respondent
to another school, the parents, guardian, or legal
custodian of the respondent is responsible for
transportation and other costs associated with the
change of school by the respondent.
(4) Counseling. Require or recommend the respondent to
undergo counseling for a specified duration with a social
worker, psychologist, clinical psychologist, psychiatrist,
family service agency, alcohol or substance abuse program,
mental health center guidance counselor, agency providing
services to elders, program designed for domestic violence
abusers or any other guidance service the court deems
appropriate. The Court may order the respondent in any
intimate partner relationship to report to an Illinois
Department of Human Services protocol approved partner
abuse intervention program for an assessment and to follow
all recommended treatment.
(5) Physical care and possession of the minor child. In
order to protect the minor child from abuse, neglect, or
unwarranted separation from the person who has been the
minor child's primary caretaker, or to otherwise protect
the well-being of the minor child, the court may do either
or both of the following: (i) grant petitioner physical
care or possession of the minor child, or both, or (ii)
order respondent to return a minor child to, or not remove
a minor child from, the physical care of a parent or person
in loco parentis.
If a court finds, after a hearing, that respondent has
committed abuse (as defined in Section 103) of a minor
child, there shall be a rebuttable presumption that
awarding physical care to respondent would not be in the
minor child's best interest.
(6) Temporary allocation of parental responsibilities:
significant decision-making. Award temporary
decision-making responsibility to petitioner in accordance
with this Section, the Illinois Marriage and Dissolution of
Marriage Act, the Illinois Parentage Act of 2015, and this
State's Uniform Child-Custody Jurisdiction and Enforcement
Act.
If a court finds, after a hearing, that respondent has
committed abuse (as defined in Section 103) of a minor
child, there shall be a rebuttable presumption that
awarding temporary significant decision-making
responsibility to respondent would not be in the child's
best interest.
(7) Parenting time. Determine the parenting time, if
any, of respondent in any case in which the court awards
physical care or allocates temporary significant
decision-making responsibility of a minor child to
petitioner. The court shall restrict or deny respondent's
parenting time with a minor child if the court finds that
respondent has done or is likely to do any of the
following: (i) abuse or endanger the minor child during
parenting time; (ii) use the parenting time as an
opportunity to abuse or harass petitioner or petitioner's
family or household members; (iii) improperly conceal or
detain the minor child; or (iv) otherwise act in a manner
that is not in the best interests of the minor child. The
court shall not be limited by the standards set forth in
Section 603.10 of the Illinois Marriage and Dissolution of
Marriage Act. If the court grants parenting time, the order
shall specify dates and times for the parenting time to
take place or other specific parameters or conditions that
are appropriate. No order for parenting time shall refer
merely to the term "reasonable parenting time".
Petitioner may deny respondent access to the minor
child if, when respondent arrives for parenting time,
respondent is under the influence of drugs or alcohol and
constitutes a threat to the safety and well-being of
petitioner or petitioner's minor children or is behaving in
a violent or abusive manner.
If necessary to protect any member of petitioner's
family or household from future abuse, respondent shall be
prohibited from coming to petitioner's residence to meet
the minor child for parenting time, and the parties shall
submit to the court their recommendations for reasonable
alternative arrangements for parenting time. A person may
be approved to supervise parenting time only after filing
an affidavit accepting that responsibility and
acknowledging accountability to the court.
(8) Removal or concealment of minor child. Prohibit
respondent from removing a minor child from the State or
concealing the child within the State.
(9) Order to appear. Order the respondent to appear in
court, alone or with a minor child, to prevent abuse,
neglect, removal or concealment of the child, to return the
child to the custody or care of the petitioner or to permit
any court-ordered interview or examination of the child or
the respondent.
(10) Possession of personal property. Grant petitioner
exclusive possession of personal property and, if
respondent has possession or control, direct respondent to
promptly make it available to petitioner, if:
(i) petitioner, but not respondent, owns the
property; or
(ii) the parties own the property jointly; sharing
it would risk abuse of petitioner by respondent or is
impracticable; and the balance of hardships favors
temporary possession by petitioner.
If petitioner's sole claim to ownership of the property
is that it is marital property, the court may award
petitioner temporary possession thereof under the
standards of subparagraph (ii) of this paragraph only if a
proper proceeding has been filed under the Illinois
Marriage and Dissolution of Marriage Act, as now or
hereafter amended.
No order under this provision shall affect title to
property.
(11) Protection of property. Forbid the respondent
from taking, transferring, encumbering, concealing,
damaging or otherwise disposing of any real or personal
property, except as explicitly authorized by the court, if:
(i) petitioner, but not respondent, owns the
property; or
(ii) the parties own the property jointly, and the
balance of hardships favors granting this remedy.
If petitioner's sole claim to ownership of the property
is that it is marital property, the court may grant
petitioner relief under subparagraph (ii) of this
paragraph only if a proper proceeding has been filed under
the Illinois Marriage and Dissolution of Marriage Act, as
now or hereafter amended.
The court may further prohibit respondent from
improperly using the financial or other resources of an
aged member of the family or household for the profit or
advantage of respondent or of any other person.
(11.5) Protection of animals. Grant the petitioner the
exclusive care, custody, or control of any animal owned,
possessed, leased, kept, or held by either the petitioner
or the respondent or a minor child residing in the
residence or household of either the petitioner or the
respondent and order the respondent to stay away from the
animal and forbid the respondent from taking,
transferring, encumbering, concealing, harming, or
otherwise disposing of the animal.
(12) Order for payment of support. Order respondent to
pay temporary support for the petitioner or any child in
the petitioner's care or over whom the petitioner has been
allocated parental responsibility, when the respondent has
a legal obligation to support that person, in accordance
with the Illinois Marriage and Dissolution of Marriage Act,
which shall govern, among other matters, the amount of
support, payment through the clerk and withholding of
income to secure payment. An order for child support may be
granted to a petitioner with lawful physical care of a
child, or an order or agreement for physical care of a
child, prior to entry of an order allocating significant
decision-making responsibility. Such a support order shall
expire upon entry of a valid order allocating parental
responsibility differently and vacating the petitioner's
significant decision-making authority, unless otherwise
provided in the order.
(13) Order for payment of losses. Order respondent to
pay petitioner for losses suffered as a direct result of
the abuse, neglect, or exploitation. Such losses shall
include, but not be limited to, medical expenses, lost
earnings or other support, repair or replacement of
property damaged or taken, reasonable attorney's fees,
court costs and moving or other travel expenses, including
additional reasonable expenses for temporary shelter and
restaurant meals.
(i) Losses affecting family needs. If a party is
entitled to seek maintenance, child support or
property distribution from the other party under the
Illinois Marriage and Dissolution of Marriage Act, as
now or hereafter amended, the court may order
respondent to reimburse petitioner's actual losses, to
the extent that such reimbursement would be
"appropriate temporary relief", as authorized by
subsection (a)(3) of Section 501 of that Act.
(ii) Recovery of expenses. In the case of an
improper concealment or removal of a minor child, the
court may order respondent to pay the reasonable
expenses incurred or to be incurred in the search for
and recovery of the minor child, including but not
limited to legal fees, court costs, private
investigator fees, and travel costs.
(14) Prohibition of entry. Prohibit the respondent
from entering or remaining in the residence or household
while the respondent is under the influence of alcohol or
drugs and constitutes a threat to the safety and well-being
of the petitioner or the petitioner's children.
(14.5) Prohibition of firearm possession.
(a) Prohibit a respondent against whom an order of
protection was issued from possessing any firearms
during the duration of the order if the order:
(1) was issued after a hearing of which such
person received actual notice, and at which such
person had an opportunity to participate;
(2) restrains such person from harassing,
stalking, or threatening an intimate partner of
such person or child of such intimate partner or
person, or engaging in other conduct that would
place an intimate partner in reasonable fear of
bodily injury to the partner or child; and
(3)(i) includes a finding that such person
represents a credible threat to the physical
safety of such intimate partner or child; or (ii)
by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would
reasonably be expected to cause bodily injury.
Any Firearm Owner's Identification Card in the
possession of the respondent, except as provided in
subsection (b), shall be ordered by the court to be
turned over to the local law enforcement agency. The
local law enforcement agency shall immediately mail
the card to the Department of State Police Firearm
Owner's Identification Card Office for safekeeping.
The court shall issue a warrant for seizure of any
firearm in the possession of the respondent, to be kept
by the local law enforcement agency for safekeeping,
except as provided in subsection (b). The period of
safekeeping shall be for the duration of the order of
protection. The firearm or firearms and Firearm
Owner's Identification Card, if unexpired, shall at
the respondent's request, be returned to the
respondent at the end of the order of protection. It is
the respondent's responsibility to notify the
Department of State Police Firearm Owner's
Identification Card Office.
(b) If the respondent is a peace officer as defined
in Section 2-13 of the Criminal Code of 2012, the court
shall order that any firearms used by the respondent in
the performance of his or her duties as a peace officer
be surrendered to the chief law enforcement executive
of the agency in which the respondent is employed, who
shall retain the firearms for safekeeping for the
duration of the order of protection.
(c) Upon expiration of the period of safekeeping,
if the firearms or Firearm Owner's Identification Card
cannot be returned to respondent because respondent
cannot be located, fails to respond to requests to
retrieve the firearms, or is not lawfully eligible to
possess a firearm, upon petition from the local law
enforcement agency, the court may order the local law
enforcement agency to destroy the firearms, use the
firearms for training purposes, or for any other
application as deemed appropriate by the local law
enforcement agency; or that the firearms be turned over
to a third party who is lawfully eligible to possess
firearms, and who does not reside with respondent.
(15) Prohibition of access to records. If an order of
protection prohibits respondent from having contact with
the minor child, or if petitioner's address is omitted
under subsection (b) of Section 203, or if necessary to
prevent abuse or wrongful removal or concealment of a minor
child, the order shall deny respondent access to, and
prohibit respondent from inspecting, obtaining, or
attempting to inspect or obtain, school or any other
records of the minor child who is in the care of
petitioner.
(16) Order for payment of shelter services. Order
respondent to reimburse a shelter providing temporary
housing and counseling services to the petitioner for the
cost of the services, as certified by the shelter and
deemed reasonable by the court.
(17) Order for injunctive relief. Enter injunctive
relief necessary or appropriate to prevent further abuse of
a family or household member or further abuse, neglect, or
exploitation of a high-risk adult with disabilities or to
effectuate one of the granted remedies, if supported by the
balance of hardships. If the harm to be prevented by the
injunction is abuse or any other harm that one of the
remedies listed in paragraphs (1) through (16) of this
subsection is designed to prevent, no further evidence is
necessary that the harm is an irreparable injury.
(18) Telephone services.
(A) Unless a condition described in subparagraph
(B) of this paragraph exists, the court may, upon
request by the petitioner, order a wireless telephone
service provider to transfer to the petitioner the
right to continue to use a telephone number or numbers
indicated by the petitioner and the financial
responsibility associated with the number or numbers,
as set forth in subparagraph (C) of this paragraph. For
purposes of this paragraph (18), the term "wireless
telephone service provider" means a provider of
commercial mobile service as defined in 47 U.S.C. 332.
The petitioner may request the transfer of each
telephone number that the petitioner, or a minor child
in his or her custody, uses. The clerk of the court
shall serve the order on the wireless telephone service
provider's agent for service of process provided to the
Illinois Commerce Commission. The order shall contain
all of the following:
(i) The name and billing telephone number of
the account holder including the name of the
wireless telephone service provider that serves
the account.
(ii) Each telephone number that will be
transferred.
(iii) A statement that the provider transfers
to the petitioner all financial responsibility for
and right to the use of any telephone number
transferred under this paragraph.
(B) A wireless telephone service provider shall
terminate the respondent's use of, and shall transfer
to the petitioner use of, the telephone number or
numbers indicated in subparagraph (A) of this
paragraph unless it notifies the petitioner, within 72
hours after it receives the order, that one of the
following applies:
(i) The account holder named in the order has
terminated the account.
(ii) A difference in network technology would
prevent or impair the functionality of a device on
a network if the transfer occurs.
(iii) The transfer would cause a geographic or
other limitation on network or service provision
to the petitioner.
(iv) Another technological or operational
issue would prevent or impair the use of the
telephone number if the transfer occurs.
(C) The petitioner assumes all financial
responsibility for and right to the use of any
telephone number transferred under this paragraph. In
this paragraph, "financial responsibility" includes
monthly service costs and costs associated with any
mobile device associated with the number.
(D) A wireless telephone service provider may
apply to the petitioner its routine and customary
requirements for establishing an account or
transferring a number, including requiring the
petitioner to provide proof of identification,
financial information, and customer preferences.
(E) Except for willful or wanton misconduct, a
wireless telephone service provider is immune from
civil liability for its actions taken in compliance
with a court order issued under this paragraph.
(F) All wireless service providers that provide
services to residential customers shall provide to the
Illinois Commerce Commission the name and address of an
agent for service of orders entered under this
paragraph (18). Any change in status of the registered
agent must be reported to the Illinois Commerce
Commission within 30 days of such change.
(G) The Illinois Commerce Commission shall
maintain the list of registered agents for service for
each wireless telephone service provider on the
Commission's website. The Commission may consult with
wireless telephone service providers and the Circuit
Court Clerks on the manner in which this information is
provided and displayed.
(c) Relevant factors; findings.
(1) In determining whether to grant a specific remedy,
other than payment of support, the court shall consider
relevant factors, including but not limited to the
following:
(i) the nature, frequency, severity, pattern and
consequences of the respondent's past abuse, neglect
or exploitation of the petitioner or any family or
household member, including the concealment of his or
her location in order to evade service of process or
notice, and the likelihood of danger of future abuse,
neglect, or exploitation to petitioner or any member of
petitioner's or respondent's family or household; and
(ii) the danger that any minor child will be abused
or neglected or improperly relocated from the
jurisdiction, improperly concealed within the State or
improperly separated from the child's primary
caretaker.
(2) In comparing relative hardships resulting to the
parties from loss of possession of the family home, the
court shall consider relevant factors, including but not
limited to the following:
(i) availability, accessibility, cost, safety,
adequacy, location and other characteristics of
alternate housing for each party and any minor child or
dependent adult in the party's care;
(ii) the effect on the party's employment; and
(iii) the effect on the relationship of the party,
and any minor child or dependent adult in the party's
care, to family, school, church and community.
(3) Subject to the exceptions set forth in paragraph
(4) of this subsection, the court shall make its findings
in an official record or in writing, and shall at a minimum
set forth the following:
(i) That the court has considered the applicable
relevant factors described in paragraphs (1) and (2) of
this subsection.
(ii) Whether the conduct or actions of respondent,
unless prohibited, will likely cause irreparable harm
or continued abuse.
(iii) Whether it is necessary to grant the
requested relief in order to protect petitioner or
other alleged abused persons.
(4) For purposes of issuing an ex parte emergency order
of protection, the court, as an alternative to or as a
supplement to making the findings described in paragraphs
(c)(3)(i) through (c)(3)(iii) of this subsection, may use
the following procedure:
When a verified petition for an emergency order of
protection in accordance with the requirements of Sections
203 and 217 is presented to the court, the court shall
examine petitioner on oath or affirmation. An emergency
order of protection shall be issued by the court if it
appears from the contents of the petition and the
examination of petitioner that the averments are
sufficient to indicate abuse by respondent and to support
the granting of relief under the issuance of the emergency
order of protection.
(5) Never married parties. No rights or
responsibilities for a minor child born outside of marriage
attach to a putative father until a father and child
relationship has been established under the Illinois
Parentage Act of 1984, the Illinois Parentage Act of 2015,
the Illinois Public Aid Code, Section 12 of the Vital
Records Act, the Juvenile Court Act of 1987, the Probate
Act of 1975 1985, the Revised Uniform Reciprocal
Enforcement of Support Act, the Uniform Interstate Family
Support Act, the Expedited Child Support Act of 1990, any
judicial, administrative, or other act of another state or
territory, any other Illinois statute, or by any foreign
nation establishing the father and child relationship, any
other proceeding substantially in conformity with the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (Pub. L. 104-193), or where both
parties appeared in open court or at an administrative
hearing acknowledging under oath or admitting by
affirmation the existence of a father and child
relationship. Absent such an adjudication, finding, or
acknowledgment acknowledgement, no putative father shall
be granted temporary allocation of parental
responsibilities, including parenting time with the minor
child, or physical care and possession of the minor child,
nor shall an order of payment for support of the minor
child be entered.
(d) Balance of hardships; findings. If the court finds that
the balance of hardships does not support the granting of a
remedy governed by paragraph (2), (3), (10), (11), or (16) of
subsection (b) of this Section, which may require such
balancing, the court's findings shall so indicate and shall
include a finding as to whether granting the remedy will result
in hardship to respondent that would substantially outweigh the
hardship to petitioner from denial of the remedy. The findings
shall be an official record or in writing.
(e) Denial of remedies. Denial of any remedy shall not be
based, in whole or in part, on evidence that:
(1) Respondent has cause for any use of force, unless
that cause satisfies the standards for justifiable use of
force provided by Article 7 of the Criminal Code of 2012;
(2) Respondent was voluntarily intoxicated;
(3) Petitioner acted in self-defense or defense of
another, provided that, if petitioner utilized force, such
force was justifiable under Article 7 of the Criminal Code
of 2012;
(4) Petitioner did not act in self-defense or defense
of another;
(5) Petitioner left the residence or household to avoid
further abuse, neglect, or exploitation by respondent;
(6) Petitioner did not leave the residence or household
to avoid further abuse, neglect, or exploitation by
respondent;
(7) Conduct by any family or household member excused
the abuse, neglect, or exploitation by respondent, unless
that same conduct would have excused such abuse, neglect,
or exploitation if the parties had not been family or
household members.
(Source: P.A. 99-85, eff. 1-1-16; 99-90, eff. 1-1-16; 99-642,
eff. 7-28-16; 100-388, eff. 1-1-18; revised 10-6-17.)
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 January
1, 2019.
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