Statutes > Illinois Statutes > CHAPTER 750 FAMILIES > 750 ILCS 5/ Illinois Marriage and Dissolution of Marriage Act. > Part V - Property, Support And Attorney Fees

Part V - Property, Support And Attorney Fees


      (750 ILCS 5/Pt. V heading)
PART V
PROPERTY, SUPPORT AND ATTORNEY FEES

    (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 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;
        (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;
            (ii) enjoining a party from removing a child
         from the jurisdiction of the court;
            (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.
    (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 assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees and costs either already incurred or to be incurred, and "interim award" means an award of interim attorney's fees and costs. Interim awards shall be governed by the following:
        (1) Except for good cause shown, a proceeding for
     (or relating to) interim attorney's fees and costs in a pre‑judgment dissolution proceeding shall be nonevidentiary and summary in nature. All hearings for or relating to interim attorney's fees and costs under this subsection shall be scheduled expeditiously by the court. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. 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 custody, 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.
        (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.
        (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.
    (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.
(Source: P.A. 96‑583, eff. 1‑1‑10.)

    (750 ILCS 5/501.1) (from Ch. 40, par. 501.1)
    Sec. 501.1. Dissolution action stay.
    (a) Upon service of a summons and petition or praecipe filed under the Illinois Marriage and Dissolution of Marriage Act or upon the filing of the respondent's appearance in the proceeding, whichever first occurs, a dissolution action stay shall be in effect against both parties and their agents and employees, without bond or further notice, until a final judgement is entered, the proceeding is dismissed, or until further order of the court:
        (1) restraining both parties from transferring,
     encumbering, concealing, destroying, spending, damaging, or in any way disposing of any property, without the consent of the other party or an order of the court, except in the usual course of business, for the necessities of life, or for reasonable costs, expenses, and attorney's fees arising from the proceeding, as well as requiring each party to provide written notice to the other party and his or her attorney of any proposed extraordinary expenditure or transaction;
        (2) restraining both parties from physically
     abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other party or the minor children of either party; and
        (3) restraining both parties from removing any minor
     child of either party from the State of Illinois or from concealing any such child from the other party, without the consent of the other party or an order of the court.
    The restraint provided in this subsection (a) does not operate to make unavailable any of the remedies provided in the Illinois Domestic Violence Act of 1986.
    A restraint of the parties' actions under this Section does not affect the rights of a bona fide purchaser or mortgagee whose interest in real property or whose beneficial interest in real property under an Illinois land trust was acquired before the filing of a lis pendens notice under Section 2‑1901 of the Code of Civil Procedure.
    (b) Notice of any proposed extraordinary expenditure or transaction, as required by subsection (a), shall be given as soon as practicable, but not less than 7 days before the proposed date for the carrying out or commencement of the carrying out of the extraordinary expenditure or transaction, except in an emergency, in which event notice shall be given as soon as practicable under the circumstances. If proper notice is given and if the party receiving the notice does not object by filing a petition for injunctive relief under the Code of Civil Procedure within 7 days of receipt of the notice, the carrying out of the proposed extraordinary expenditure or transaction is not a violation of the dissolution action stay. The dissolution action stay shall remain in full force and effect against both parties for 14 days after the date of filing of a petition for injunctive relief by the objecting party (or a shorter period if the court so orders); and no extension beyond that 14 day period shall be granted by the court. For good cause shown, a party may file a petition for a reduction in time with respect to any 7 day notice requirement under this subsection.
    (c) A party making any extraordinary expenditure or carrying out any extraordinary transaction after a dissolution action stay is in effect shall account promptly to the court and to the other party for all of those expenditures and transactions. This obligation to account applies throughout the pendency of the proceeding, irrespective of (i) any notice given by any party as to any proposed extraordinary expenditure or transaction, (ii) any filing of an objection and petition under this Section or the absence of any such filing, or (iii) any court ruling as to an issue presented to it by either party.
    (d) If the party making an extraordinary expenditure or transaction fails to provide proper notice or if despite proper notice the other party filed a petition and prevailed on that petition, and the extraordinary expenditure or transaction results in a loss of income or reduction in the amount or in the value of property, there is a presumption of dissipation of property, equal to the amount of the loss or reduction, charged against the party for purposes of property distribution under Section 503.
    (e) In a proceeding filed under this Act, the summons shall provide notice of the entry of the automatic dissolution action stay in a form as required by applicable rules.
(Source: P.A. 87‑881; 88‑24.)

    (750 ILCS 5/502) (from Ch. 40, par. 502)
    Sec. 502. Agreement. (a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children.
    (b) The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.
    (c) If the court finds the agreement unconscionable, it may request the parties to submit a revised agreement or upon hearing, may make orders for the disposition of property, maintenance, child support and other matters.
    (d) Unless the agreement provides to the contrary, its terms shall be set forth in the judgment, and the parties shall be ordered to perform under such terms, or if the agreement provides that its terms shall not be set forth in the judgment, the judgment shall identify the agreement and state that the court has approved its terms.
    (e) Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.
    (f) Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.
(Source: P.A. 83‑216.)

    (750 ILCS 5/503)(from Ch. 40, par. 503)
    Sec. 503. Disposition of property.
    (a) For purposes of this Act, "marital property" means all property acquired by either spouse subsequent to the marriage, except the following, which is known as "non‑marital property":
        (1) property acquired by gift, legacy or descent;
        (2) property acquired in exchange for property
     acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
        (3) property acquired by a spouse after a judgment
     of legal separation;
        (4) property excluded by valid agreement of the
     parties;
        (5) any judgment or property obtained by judgment
     awarded to a spouse from the other spouse;
        (6) property acquired before the marriage;
        (7) the increase in value of property acquired by a
     method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non‑marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
        (8) income from property acquired by a method listed
     in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.
    (b)(1) For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non‑marital property transferred into some form of co‑ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co‑ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.
    (2) For purposes of distribution of property pursuant to this Section, all pension benefits (including pension benefits under the Illinois Pension Code) acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of the marriage are presumed to be marital property, regardless of which spouse participates in the pension plan. The presumption that these pension benefits are marital property is overcome by a showing that the pension benefits were acquired by a method listed in subsection (a) of this Section. The right to a division of pension benefits in just proportions under this Section is enforceable under Section 1‑119 of the Illinois Pension Code.
    The value of pension benefits in a retirement system subject to the Illinois Pension Code shall be determined in accordance with the valuation procedures established by the retirement system.
    The recognition of pension benefits as marital property and the division of those benefits pursuant to a Qualified Illinois Domestic Relations Order shall not be deemed to be a diminishment, alienation, or impairment of those benefits. The division of pension benefits is an allocation of property in which each spouse has a species of common ownership.
    (3) For purposes of distribution of property under this Section, all stock options granted to either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, whether vested or non‑vested or whether their value is ascertainable, are presumed to be marital property. This presumption of marital property is overcome by a showing that the stock options were acquired by a method listed in subsection (a) of this Section. The court shall allocate stock options between the parties at the time of the judgment of dissolution of marriage or declaration of invalidity of marriage recognizing that the value of the stock options may not be then determinable and that the actual division of the options may not occur until a future date. In making the allocation between the parties, the court shall consider, in addition to the factors set forth in subsection (d) of this Section, the following:
        (i) All circumstances underlying the grant of the
     stock option including but not limited to whether the grant was for past, present, or future efforts, or any combination thereof.
        (ii) The length of time from the grant of the option
     to the time the option is exercisable.
    (c) Commingled marital and non‑marital property shall be treated in the following manner, unless otherwise agreed by the spouses:
        (1) When marital and non‑marital property are
     commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection; provided that if marital and non‑marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection.
        (2) When one estate of property makes a contribution
     to another estate of property, or when a spouse contributes personal effort to non‑marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non‑marital property, unless the effort is significant and results in substantial appreciation of the non‑marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non‑marital property which received the contribution.
    (d) In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse's non‑marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
        (1) the contribution of each party to the
     acquisition, preservation, or increase or decrease in value of the marital or non‑marital property, including (i) any such decrease attributable to a payment deemed to have been an advance from the parties' marital estate under subsection (c‑1)(2) of Section 501 and (ii) the contribution of a spouse as a homemaker or to the family unit;
        (2) the dissipation by each party of the marital or
     non‑marital property;
        (3) the value of the property assigned to each
     spouse;
        (4) the duration of the marriage;
        (5) the relevant economic circumstances of each
     spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
        (6) any obligations and rights arising from a prior
     marriage of either party;
        (7) any antenuptial agreement of the parties;
        (8) the age, health, station, occupation, amount and
     sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
        (9) the custodial provisions for any children;
        (10) whether the apportionment is in lieu of or in
     addition to maintenance;
        (11) the reasonable opportunity of each spouse for
     future acquisition of capital assets and income; and
        (12) the tax consequences of the property division
     upon the respective economic circumstances of the parties.
    (e) Each spouse has a species of common ownership in the marital property which vests at the time dissolution proceedings are commenced and continues only during the pendency of the action. Any such interest in marital property shall not encumber that property so as to restrict its transfer, assignment or conveyance by the title holder unless such title holder is specifically enjoined from making such transfer, assignment or conveyance.
    (f) In a proceeding for dissolution of marriage or declaration of invalidity of marriage or in a proceeding for disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, in determining the value of the marital and non‑marital property for purposes of dividing the property, shall value the property as of the date of trial or some other date as close to the date of trial as is practicable.
    (g) The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent, or incompetent child of the parties. In making a determination under this subsection, the court may consider, among other things, the conviction of a party of any of the offenses set forth in Section 12‑3.3, 12‑4, 12‑4.1, 12‑4.2, 12‑4.3, 12‑13, 12‑14, 12‑14.1, 12‑15, or 12‑16 of the Criminal Code of 1961 if the victim is a child of one or both of the parties, and there is a need for, and cost of, care, healing and counseling for the child who is the victim of the crime.
    (h) Unless specifically directed by a reviewing court, or upon good cause shown, the court shall not on remand consider any increase or decrease in the value of any "marital" or "non‑marital" property occurring since the assessment of such property at the original trial or hearing, but shall use only that assessment made at the original trial or hearing.
    (i) The court may make such judgments affecting the marital property as may be just and may enforce such judgments by ordering a sale of marital property, with proceeds therefrom to be applied as determined by the court.
    (j) After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party's petition for contribution to fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following provisions:
        (1) A petition for contribution, if not filed before
     the final hearing on other issues between the parties, shall be filed no later than 30 days after the closing of proofs in the final hearing or within such other period as the court orders.
        (2) Any award of contribution to one party from the
     other party shall be based on the criteria for division of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance under Section 504.
        (3) The filing of a petition for contribution shall
     not be deemed to constitute a waiver of the attorney‑client privilege between the petitioning party and current or former counsel; and such a waiver shall not constitute a prerequisite to a hearing for contribution. If either party's presentation on contribution, however, includes evidence within the scope of the attorney‑client privilege, the disclosure or disclosures shall be narrowly construed and shall not be deemed by the court to constitute a general waiver of the privilege as to matters beyond the scope of the presentation.
        (4) No finding on which a contribution award is
     based or denied shall be asserted against counsel or former counsel for purposes of any hearing under subsection (c) or (e) of Section 508.
        (5) A contribution award (payable to either the
     petitioning party or the party's counsel, or jointly, as the court determines) may be in the form of either a set dollar amount or a percentage of fees and costs (or a portion of fees and costs) to be subsequently agreed upon by the petitioning party and counsel or, alternatively, thereafter determined in a hearing pursuant to subsection (c) of Section 508 or previously or thereafter determined in an independent proceeding under subsection (e) of Section 508.
        (6) The changes to this Section 503 made by this
     amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section 508.
(Source: P.A. 95‑374, eff. 1‑1‑08; 96‑583, eff. 1‑1‑10.)