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| | 99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB1491 Introduced , by Rep. La Shawn K. Ford SYNOPSIS AS INTRODUCED:
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| 305 ILCS 5/10-12.5 new | | 750 ILCS 5/510 | from Ch. 40, par. 510 |
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Amends the Illinois Public Aid Code, the Unified Code of Corrections, and the Illinois Marriage and Dissolution of Marriage Act. Provides that a person's obligation to pay child support pursuant to a court or administrative order is suspended by operation of law during any period that the person is committed to the custody of the Department of Corrections or the Department of Juvenile Justice. Provides that the programs of the Department of Healthcare and Family Services concerning child support orders shall include cases in which a responsible relative who is committed to the custody of the Department of Corrections or the Department of Juvenile Justice requests modification of the support order. Provides that the Department of Corrections and the Department of Juvenile Justice shall establish programs to assist committed persons who are obligors under child support orders in cases in which child support enforcement services are provided by the Department of Healthcare and Family Services. Provides for inclusion of information about any child support obligation owed by the defendant and recommendations concerning the payment of that obligation in a presentence report; requires a presentence investigation and report in the case of a misdemeanor defendant who owes a child support obligation.
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| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning public aid.
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| 2 | | Be it enacted by the People of the State of Illinois,
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| 3 | | represented in the General Assembly:
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| 4 | | Section 5. The Illinois Public Aid Code is amended by |
| 5 | | adding Section 10-12.5 as follows:
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| 6 | | (305 ILCS 5/10-12.5 new) |
| 7 | | Sec. 10-12.5. Suspension of child support during a period |
| 8 | | of incarceration. |
| 9 | | (a) During any period of time in which the person owing a |
| 10 | | duty of support is committed to the custody of the Department |
| 11 | | of Corrections or the Department of Juvenile Justice, an |
| 12 | | obligation to pay child support is suspended by operation of |
| 13 | | law, but not until 60 days after the custodial parent receives |
| 14 | | notice and an opportunity to request a termination or |
| 15 | | modification of the suspension of the support obligation in |
| 16 | | accordance with subsection (c) of this Section. If the |
| 17 | | custodial parent requests that the suspension or prohibition of |
| 18 | | the support obligation be terminated or modified and the court |
| 19 | | terminates or modifies the suspension of the support |
| 20 | | obligation, or if the parties have otherwise agreed in a |
| 21 | | written agreement set forth in a court or administrative order |
| 22 | | for support, then the child support obligation shall not be |
| 23 | | suspended and if the non-custodial parent wishes to obtain a |
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| 1 | | modification, he or she must petition for a modification of |
| 2 | | support in accordance with Section 510 of the Illinois Marriage |
| 3 | | and Dissolution of Marriage Act. The Department may provide, by |
| 4 | | rule, for notice to the custodial parent describing the |
| 5 | | custodial parent's rights regarding a prospective modification |
| 6 | | in accordance with Section 510 of the Illinois Marriage and |
| 7 | | Dissolution of Marriage Act. |
| 8 | | If a non-custodial parent receives a settlement, claim, |
| 9 | | inheritance, lottery prize award, or other lump sum or periodic |
| 10 | | income of $500 or more a month or $5,000 or more as a one-time |
| 11 | | lump sum, during a period in which his or her child support |
| 12 | | obligation is suspended pursuant to this Code, the |
| 13 | | non-custodial parent shall notify the custodial parent, and in |
| 14 | | IV-D cases also notify the Department, within 7 days of |
| 15 | | receiving or becoming aware that he or she is entitled to |
| 16 | | receive this income. If the custodial parent wishes to obtain a |
| 17 | | modification based on this income, he or she must petition for |
| 18 | | a modification of support in accordance with Section 510 of the |
| 19 | | Illinois Marriage and Dissolution of Marriage Act. |
| 20 | | (b) Any period of incarceration of a parent obligated to |
| 21 | | pay child support shall not be considered a period of voluntary |
| 22 | | unemployment. In the case of an incarcerated parent obligated |
| 23 | | to pay child support greater than $0 whose period of |
| 24 | | incarceration is greater than one year and whose period of |
| 25 | | incarceration begins on or after July 1, 2014, the Department |
| 26 | | shall: |
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| 1 | | (1) temporarily suspend any support obligation of the |
| 2 | | parent and the enforcement of any support obligation of the |
| 3 | | parent existing prior to the period of incarceration; and |
| 4 | | (2) temporarily prohibit the accrual of any interest on |
| 5 | | any support obligation of the parent existing prior to the |
| 6 | | period of incarceration during such period. |
| 7 | | The temporary suspension of the child support obligation |
| 8 | | and of the accrual of interest on any support obligation of the |
| 9 | | parent existing prior to the period of incarceration shall end |
| 10 | | and both support and accrual of interest on any pre-existing |
| 11 | | unpaid obligation shall resume upon the first charging period |
| 12 | | to occur after the obligated parent's release from |
| 13 | | incarceration. Unless the terms of the support obligation have |
| 14 | | been otherwise modified, the support terms shall resume at the |
| 15 | | same level as prior to the temporary suspension. |
| 16 | | (c) Provided the Department is advised or given notice of |
| 17 | | the obligated parent's incarceration for a period to exceed one |
| 18 | | year beginning after July 1, 2014, the Department, for cases |
| 19 | | enrolled in the Child Support Enforcement Program established |
| 20 | | by Title IV-D of the Social Security Act, or the noncustodial |
| 21 | | parent or his or her representative in all other cases, shall |
| 22 | | provide both parties with: |
| 23 | | (1) notice of any suspension or review, adjustment, or |
| 24 | | enforcement of a support obligation and of any prohibition |
| 25 | | on interest accrual on such obligation that is imposed in |
| 26 | | accordance with paragraphs (1) and (2) of subsection (b); |
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| 1 | | and |
| 2 | | (2) an opportunity to request that the suspension or |
| 3 | | prohibition be terminated or modified on the basis that the |
| 4 | | noncustodial parent has sufficient income or resources to |
| 5 | | continue payment of the support obligation during the |
| 6 | | noncustodial parent's period of incarceration. |
| 7 | | (d) The Department shall not be liable for failing to act |
| 8 | | upon the provisions established under paragraphs (1) and (2) of |
| 9 | | subsection (b) if the Department has not been advised of the |
| 10 | | obligated parent's incarceration or if the Department has in |
| 11 | | place proper procedures for considering an obligated parent's |
| 12 | | incarceration when setting and modifying child support |
| 13 | | obligations and follows those procedures routinely.
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| 14 | | Section 10. The Illinois Marriage and Dissolution of |
| 15 | | Marriage Act is amended by changing Section 510 as follows:
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| 16 | | (750 ILCS 5/510) (from Ch. 40, par. 510)
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| 17 | | Sec. 510. Modification and termination of provisions for
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| 18 | | maintenance, support, educational expenses, and property |
| 19 | | disposition.
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| 20 | | (a) Except as otherwise provided in paragraph (f) of |
| 21 | | Section 502 and
in subsection (b), clause (3) of Section 505.2, |
| 22 | | the provisions of any
judgment respecting maintenance or |
| 23 | | support may be modified only as to
installments accruing |
| 24 | | subsequent to due notice by the moving party of the
filing of |
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| 1 | | the motion for modification. An order for child
support may be |
| 2 | | modified as follows:
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| 3 | | (1) upon a showing of a substantial change in |
| 4 | | circumstances, including incarceration prior to July 1, |
| 5 | | 2014 or for a period of incarceration of less than one |
| 6 | | year; and
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| 7 | | (2) without the necessity of showing a substantial |
| 8 | | change in
circumstances, as follows:
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| 9 | | (A) upon a showing of an inconsistency of at least |
| 10 | | 20%, but no
less than $10 per month, between the amount |
| 11 | | of the existing order and the
amount of child support |
| 12 | | that results from application of the guidelines
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| 13 | | specified in Section 505 of this Act unless the |
| 14 | | inconsistency is due to the
fact that the amount of the |
| 15 | | existing order resulted from a deviation from the
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| 16 | | guideline amount and there has not been a change in the |
| 17 | | circumstances that
resulted in that deviation; or
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| 18 | | (B) upon a showing of a need to provide for the |
| 19 | | health care needs
of the child under the order through |
| 20 | | health insurance or other means. In no
event shall the |
| 21 | | eligibility for or receipt of medical assistance be |
| 22 | | considered
to meet the need to provide for the child's |
| 23 | | health care needs.
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| 24 | | The provisions of subparagraph (a)(2)(A) shall apply only
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| 25 | | in cases in which a party is receiving child support
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| 26 | | enforcement services from the Department of Healthcare and |
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| 1 | | Family Services under
Article X of the Illinois Public Aid |
| 2 | | Code, and only when at least 36
months have elapsed since the |
| 3 | | order for child support was entered or last
modified.
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| 4 | | (a-5) An order for maintenance may be modified or |
| 5 | | terminated only upon a
showing of a substantial change in |
| 6 | | circumstances. In all such proceedings, as
well as in |
| 7 | | proceedings in which maintenance is being reviewed, the court |
| 8 | | shall
consider the applicable factors set forth in subsection |
| 9 | | (a) of Section 504 and
the following factors:
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| 10 | | (1) any change in the employment status of either party |
| 11 | | and whether the
change has been made
in good faith;
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| 12 | | (2) the efforts, if any, made by the party receiving |
| 13 | | maintenance to become
self-supporting, and
the |
| 14 | | reasonableness of the efforts where they are appropriate;
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| 15 | | (3) any impairment of the present and future earning |
| 16 | | capacity of either
party;
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| 17 | | (4) the tax consequences of the maintenance payments |
| 18 | | upon the respective
economic
circumstances of the parties;
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| 19 | | (5) the duration of the maintenance payments |
| 20 | | previously paid (and
remaining to be paid) relative
to the |
| 21 | | length of the marriage;
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| 22 | | (6) the property, including retirement benefits, |
| 23 | | awarded to each party
under the judgment of
dissolution of |
| 24 | | marriage, judgment of legal separation, or judgment of
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| 25 | | declaration of invalidity of
marriage and the present |
| 26 | | status of the property;
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| 1 | | (7) the increase or decrease in each party's income |
| 2 | | since the prior
judgment or order from which
a review, |
| 3 | | modification, or termination is being sought;
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| 4 | | (8) the property acquired and currently owned by each |
| 5 | | party after the
entry of the judgment of
dissolution of |
| 6 | | marriage, judgment of legal separation, or judgment of
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| 7 | | declaration of invalidity of
marriage; and
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| 8 | | (9) any other factor that the court expressly finds to |
| 9 | | be just and
equitable.
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| 10 | | (b) The provisions as to property disposition may not be |
| 11 | | revoked or
modified,
unless the court finds the existence of |
| 12 | | conditions that justify the
reopening of a judgment under the |
| 13 | | laws of this State.
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| 14 | | (c) Unless otherwise agreed by the parties in a written |
| 15 | | agreement
set forth in the judgment or otherwise approved by |
| 16 | | the court, the obligation
to pay future maintenance is |
| 17 | | terminated upon the death of either party, or
the remarriage of |
| 18 | | the party receiving maintenance, or if the party
receiving |
| 19 | | maintenance cohabits with another person on a resident,
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| 20 | | continuing conjugal basis. Any obligation of a payor party for |
| 21 | | premium payments respecting insurance on such party's life |
| 22 | | imposed under subsection (f) of Section 504 is also terminated |
| 23 | | on the occurrence of any of the foregoing events, unless |
| 24 | | otherwise agreed by the parties. Any termination of an |
| 25 | | obligation for maintenance as a result of the death of the |
| 26 | | payor party, however, shall be inapplicable to any right of the |
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| 1 | | other party or such other party's designee to receive a death |
| 2 | | benefit under such insurance on the payor party's life.
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| 3 | | (d) Unless otherwise provided in this Act, or as agreed in |
| 4 | | writing or
expressly
provided in the
judgment, provisions for |
| 5 | | the support of a child are terminated by emancipation
of the
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| 6 | | child, or if the child has attained the age of 18 and is still |
| 7 | | attending
high school,
provisions for the support of the child |
| 8 | | are terminated upon the date that the
child
graduates from high |
| 9 | | school or the date the child attains the age of 19,
whichever |
| 10 | | is
earlier, but not by the death of a parent obligated to |
| 11 | | support or educate the
child.
An existing obligation to pay for |
| 12 | | support
or educational expenses, or both, is not terminated by |
| 13 | | the death of a
parent. When a parent obligated to pay support |
| 14 | | or educational
expenses, or both, dies, the amount of support |
| 15 | | or educational expenses, or
both, may be enforced, modified, |
| 16 | | revoked or commuted to a lump sum payment,
as equity may |
| 17 | | require, and that determination may be provided for at the
time |
| 18 | | of the dissolution of the marriage or thereafter.
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| 19 | | (d-5) During any period of time in which the person owing a |
| 20 | | duty of support is committed to the custody of the Department |
| 21 | | of Corrections or the Department of Juvenile Justice, an |
| 22 | | obligation to pay child support is suspended by operation of |
| 23 | | law, but not until 60 days after the custodial parent receives |
| 24 | | notice and an opportunity to request a termination or |
| 25 | | modification of the suspension of the support obligation in |
| 26 | | accordance with subsection (d-7) of this Section. If the |
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| 1 | | custodial parent requests that the suspension or prohibition of |
| 2 | | the support obligation be terminated or modified and the court |
| 3 | | terminates or modifies the suspension of the support |
| 4 | | obligation, or if the parties have otherwise agreed in a |
| 5 | | written agreement set forth in the judgment or otherwise |
| 6 | | approved by the court, then the child support obligation shall |
| 7 | | not be suspended and if the non-custodial parent wishes to |
| 8 | | obtain a modification, he or she must petition for a |
| 9 | | modification of support in accordance with this Section. The |
| 10 | | Department of Healthcare and Family Services may provide, by |
| 11 | | rule, for notice to the custodial parent describing the |
| 12 | | custodial parent's rights regarding a prospective modification |
| 13 | | in accordance with this Section. |
| 14 | | If a non-custodial parent receives a settlement, claim, |
| 15 | | inheritance, lottery prize award, or other lump sum or periodic |
| 16 | | income of $500 or more a month or $5,000 or more as a one-time |
| 17 | | lump sum, during a period in which his or her child support |
| 18 | | obligation is suspended pursuant to Section 10-12.5 of the |
| 19 | | Illinois Public Aid Code, the non-custodial parent shall notify |
| 20 | | the custodial parent, and in IV-D cases also notify the |
| 21 | | Department of Healthcare and Family Services, within 7 days of |
| 22 | | receiving or becoming aware that he or she is entitled to |
| 23 | | receive this income. If the custodial parent wishes to obtain a |
| 24 | | modification based on this income, he or she must petition for |
| 25 | | a modification of support in accordance with this Section. |
| 26 | | (d-6) The State shall not consider any period of |
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| 1 | | incarceration of such parent as a period of voluntary |
| 2 | | unemployment that disqualifies the parent from obtaining a |
| 3 | | modification of the support obligation consistent with the |
| 4 | | parent's ability to pay child support. In the case of an |
| 5 | | incarcerated parent the State shall: |
| 6 | | (1) temporarily suspend any support obligation of the |
| 7 | | parent and the enforcement of any support obligation of the |
| 8 | | parent existing prior to the period of incarceration; and |
| 9 | | (2) temporarily prohibit the accrual of any interest on |
| 10 | | any support obligation of the parent existing prior to the |
| 11 | | period of incarceration during such period. |
| 12 | | (d-7) The Department of Healthcare and Family Services, for |
| 13 | | cases enrolled in the Child Support Enforcement Program |
| 14 | | established by Title IV-D of the Social Security Act, or the |
| 15 | | noncustodial parent or his or her representative in all other |
| 16 | | cases, shall provide a custodial parent with: |
| 17 | | (1) notice of any suspension or review, adjustment, or |
| 18 | | enforcement of a support obligation and notice of any |
| 19 | | prohibition on the accrual of interest on the support |
| 20 | | obligation that is imposed in accordance with paragraphs |
| 21 | | (1) and (2) of subsection (d-6); and |
| 22 | | (2) an opportunity to request that the suspension or |
| 23 | | prohibition be terminated or modified on the basis that the |
| 24 | | noncustodial parent has sufficient income or resources to |
| 25 | | continue payment of the support obligation during the |
| 26 | | noncustodial parent's period of incarceration. |
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| 1 | | (e) The right to petition for support or educational |
| 2 | | expenses, or both,
under Sections 505 and 513 is not |
| 3 | | extinguished by the death of a parent.
Upon a petition filed |
| 4 | | before or after a parent's death, the court may award
sums of |
| 5 | | money out of the decedent's estate for the child's support or
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| 6 | | educational expenses, or both, as equity may require. The time |
| 7 | | within
which a claim may be filed against the estate of a |
| 8 | | decedent under Sections
505 and 513 and subsection (d) and this |
| 9 | | subsection shall be governed by the
provisions of the Probate |
| 10 | | Act of 1975, as a barrable, noncontingent claim.
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| 11 | | (f) A petition to modify or terminate child support, |
| 12 | | custody, or
visitation shall not delay any child support |
| 13 | | enforcement litigation or
supplementary proceeding on behalf |
| 14 | | of the obligee, including, but not limited
to, a petition for a |
| 15 | | rule to show cause, for non-wage garnishment, or for a
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| 16 | | restraining order.
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| 17 | | (g) The Department of Healthcare and Family Services and |
| 18 | | the Department of Corrections shall share relevant data and |
| 19 | | collaborate on the facilitation of identification of |
| 20 | | incarcerated parents eligible for either temporary suspension |
| 21 | | of a child support obligation or modification of a child |
| 22 | | support obligation and shall provide relevant information and |
| 23 | | assistance to incarcerated parents eligible for modification |
| 24 | | of support. |
| 25 | | (h) The crime for which the incarcerated parent was |
| 26 | | convicted, or the prosecution of the incarcerated parent for |
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| 1 | | that crime by a legal representative of the Department of |
| 2 | | Healthcare and Family Services for cases enrolled in the Child |
| 3 | | Support Enforcement Program established by Title IV-D of the |
| 4 | | Social Security Act, shall not disqualify the incarcerated |
| 5 | | parent from consideration of modification of a child support |
| 6 | | obligation, nor shall the action of the Department's legal |
| 7 | | representative to bring forth the modification request for |
| 8 | | consideration be considered a conflict of interest for the |
| 9 | | prosecuting office, except in cases where the crime was |
| 10 | | committed to avoid a child support obligation or was committed |
| 11 | | against a child of the obligated parent or the other parent. |
| 12 | | (Source: P.A. 97-608, eff. 1-1-12.)
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