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Public Act 102-0480 Public Act 0480 102ND GENERAL ASSEMBLY |
Public Act 102-0480 | HB3484 Enrolled | LRB102 13864 LNS 19215 b |
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| AN ACT concerning civil law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Illinois Marriage and Dissolution of | Marriage Act is amended by changing Section 501 as follows:
| (750 ILCS 5/501) (from Ch. 40, par. 501)
| Sec. 501. Temporary relief. In all proceedings under this | Act,
temporary relief shall be as follows:
| (a) Either party may petition or move for:
| (1) temporary maintenance or temporary support of a | child of the
marriage entitled to support, accompanied by | an affidavit as to the
factual basis for the relief | requested. One form of financial affidavit, as determined | by the Supreme Court, shall be used statewide. The | financial affidavit shall be supported by documentary | evidence including, but not limited to, income tax | returns, pay stubs, and banking statements. Unless the | court otherwise directs, any affidavit or supporting | documentary evidence submitted pursuant
to this paragraph | shall not be made
part of the public record of the | proceedings but shall be available to
the court or an | appellate court in which the proceedings are subject to
| review, to the parties, their
attorneys, and such other |
| persons as the court
may direct. Upon motion of a party, a | court may hold a hearing to determine whether and why | there is a disparity between a party's sworn affidavit and | the supporting documentation. If a party intentionally or | recklessly files an inaccurate or misleading financial | affidavit, the court shall impose significant penalties | and sanctions including, but not limited to, costs and | attorney's fees;
| (2) a temporary restraining order or preliminary | injunction, accompanied
by affidavit showing a
factual | basis for any of the following relief:
| (i) restraining any person from transferring, | encumbering,
concealing or otherwise disposing of any | property except in the usual
course of business or for | the necessities of life, and, if so
restrained, | requiring him to notify the moving party and his | attorney of
any proposed extraordinary expenditures | made after the order is issued; however, an order need | not include an exception for transferring, | encumbering,
or otherwise disposing of property in the | usual course of business or for the necessities of | life if the court enters appropriate orders that | enable the parties to pay their necessary
personal and | business expenses including, but not limited to, | appropriate professionals to assist the court pursuant | to subsection (l) of Section 503 to administer the |
| payment and accounting of such living and business | expenses;
| (ii) enjoining a party from removing a child from | the jurisdiction
of the court for more than 14 days;
| (iii) enjoining a party from striking or | interfering with the
personal liberty of the other | party or of any child; or
| (iv) providing other injunctive relief proper in | the circumstances;
or
| (3) other appropriate temporary relief including, in | the discretion of the court, ordering the purchase or sale | of assets and requiring that a party or parties borrow | funds in the appropriate circumstances.
| Issues concerning temporary maintenance or temporary | support of a child entitled to support shall be dealt with on a | summary basis based on allocated parenting time, financial | affidavits, tax returns, pay stubs, banking statements, and | other
relevant documentation, except an evidentiary hearing | may be held upon a showing of good cause. If a party | intentionally or recklessly files an inaccurate or misleading | financial affidavit, the court shall impose significant | penalties and sanctions including, but not limited to, costs | and attorney's fees resulting from the improper | representation. | (b) The court may issue a temporary restraining order | without
requiring notice to the other party only if it finds, |
| on the basis of
the moving affidavit or other evidence, that | irreparable injury will
result to the moving party if no order | is issued until the time for
responding has elapsed.
| (c) A response hereunder may be filed within 21 days after | service
of notice of motion or at the time specified in the | temporary
restraining order.
| (c-1) As used in this subsection (c-1), "interim | attorney's fees and
costs" means attorney's fees and costs , | including an allowance from the other party for a retainer fee | to obtain an attorney,
assessed
from time to time while a case | is pending, in favor of the petitioning party's
current | counsel, for reasonable fees and costs either already incurred | or to be
incurred, and "interim award" means an award of | interim attorney's fees and
costs , including an allowance from | the other party for a retainer fee to obtain an attorney . | Interim awards shall be governed by the following:
| (1) Except for good cause shown, a proceeding for (or | relating to) interim
attorney's fees and costs in a | pre-judgment dissolution proceeding shall be | nonevidentiary and summary in nature. All hearings for or | relating to interim attorney's fees and costs under this | subsection shall be scheduled expeditiously by the court. | When a party files a petition for interim attorney's fees | and
costs supported by one or more
affidavits that | delineate relevant factors, the court (or a hearing | officer)
shall assess an interim award after affording the |
| opposing party a reasonable
opportunity to file a | responsive pleading. A responsive pleading shall set out
| the amount of each retainer or other payment or payments, | or both, previously
paid to the responding party's counsel | by or on behalf of the responding party. A responsive | pleading shall include costs incurred, and shall indicate | whether the costs are paid or unpaid.
In assessing an
| interim award, the court shall consider all relevant | factors, as presented,
that appear reasonable and | necessary, including to the extent applicable:
| (A) the income and property of each party, | including alleged marital
property within the sole | control of one party and alleged non-marital property
| within access to a party;
| (B) the needs of each party;
| (C) the realistic earning capacity of each party;
| (D) any impairment to present earning capacity of | either party,
including
age and physical and emotional | health;
| (E) the standard of living established during the | marriage;
| (F) the degree of complexity of the issues, | including allocation of parental responsibility, | valuation
or division (or both) of closely held | businesses, and tax planning, as well as
reasonable | needs for expert investigations or expert witnesses, |
| or both;
| (G) each party's access to relevant information;
| (H) the amount of the payment or payments made or | reasonably expected to
be made to the attorney for the | other party; and
| (I) any other factor that the court expressly | finds to be just and
equitable.
| (1.5) A petition for interim fees that seeks an order | for the payment of an initial retainer to retain an | attorney shall have attached to it an affidavit from the | attorney to be retained that the attorney has been | contacted by the moving party and the attorney has agreed | to enter an appearance if the court grants the relief | requested, together with a certificate from the moving | party that the interim fees granted will only be used by | the moving party to retain the attorney. Any interim fees | granted pursuant to this paragraph shall be paid directly | to the identified attorney. | (2) Any assessment of an interim award (including one | pursuant to an
agreed
order) shall be without prejudice to | any final allocation and without prejudice
as to any claim | or right of either party or any counsel of record at the | time
of the award. Any such claim or right may be presented | by the appropriate
party or counsel at a hearing on | contribution under subsection (j) of Section
503 or a | hearing on counsel's fees under subsection (c) of Section |
| 508. Unless
otherwise ordered by the court at the final | hearing between the parties or in a
hearing under | subsection (j) of Section 503 or subsection (c) of
Section | 508, interim awards, as well as the aggregate of all other | payments
by each party
to
counsel and related payments to | third parties, shall be deemed to have been
advances from | the parties' marital estate. Any portion of any interim | award
constituting an overpayment shall be remitted back | to the appropriate party or
parties, or, alternatively, to | successor counsel, as the court determines and
directs, | after notice in a form designated by the Supreme Court. An | order for the award of interim attorney's fees shall be a | standardized form order and labeled "Interim Fee Award | Order".
| (3) In any proceeding under this subsection (c-1), the | court (or hearing
officer) shall assess an interim award | against an opposing party in an
amount necessary to enable | the petitioning party to participate adequately in
the | litigation, upon findings that the party from whom | attorney's fees and
costs are sought has the financial | ability to pay reasonable amounts and that
the party | seeking attorney's fees and costs lacks sufficient access | to assets
or income to pay reasonable amounts. In | determining an award, the
court shall consider whether | adequate participation in the litigation requires
| expenditure of more fees and costs for a party that is not |
| in control of assets
or relevant information. Except for | good cause shown, an interim award shall
not be less than | payments made or reasonably expected to be made to the | counsel
for the other party. If the court finds that both | parties
lack financial ability or access to assets or | income for reasonable attorney's
fees and costs, the court | (or hearing officer) shall enter an order that
allocates | available funds for each party's counsel, including | retainers or
interim payments, or both, previously paid, | in a manner that achieves
substantial parity between the | parties.
| (4) The changes to this Section 501 made by this | amendatory Act of 1996
apply to cases pending on or after | June 1, 1997, except as otherwise provided
in Section 508.
| (c-2) Allocation of use of marital residence. Where
there | is on file a verified complaint or verified petition seeking
| temporary eviction from the marital residence, the court may, | during the
pendency of the proceeding, only in cases where the | physical or mental well-being of either spouse or
his or her | children is jeopardized by occupancy of the marital residence | by both
spouses, and only upon due notice and full hearing, | unless waived by the
court on good cause shown, enter orders | granting the exclusive possession of the marital residence to | either spouse,
by eviction from, or restoration of, the | marital residence, until the final
determination of the cause | pursuant to the factors listed in Section 602.7 of this Act. No |
| such order shall in any manner affect any
estate in homestead | property of either party. In entering orders under this | subsection (c-2), the court shall balance hardships to the | parties. | (d) A temporary order entered under this Section:
| (1) does not prejudice the rights of the parties or | the child which
are to be adjudicated at subsequent | hearings in the proceeding;
| (2) may be revoked or modified before final judgment, | on a showing
by affidavit and upon hearing; and
| (3) terminates when the final judgment is entered or | when the
petition for dissolution of marriage or legal | separation or declaration
of invalidity of marriage is | dismissed.
| (e) The fees or costs of mediation shall
be borne by the | parties and may be assessed by the court as it deems equitable | without prejudice and are subject to reallocation at the | conclusion of the case. | (f) Companion animals. Either party may petition or move | for the temporary allocation of sole or joint possession of | and responsibility for a companion animal jointly owned by the | parties. In issuing an order under this subsection, the court | shall take into consideration the well-being of the companion | animal. As used in this Section, "companion animal" does not | include a service animal as defined in Section 2.01c of the | Humane Care for Animals Act. |
| (Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17; | 100-422, eff. 1-1-18 .)
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Effective Date: 1/1/2022
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