Bill Text: IL SB2823 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Amends the Illinois Marriage and Dissolution of Marriage Act. Makes a technical change in a Section concerning disposition of property.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2010-01-28 - Referred to Assignments [SB2823 Detail]

Download: Illinois-2009-SB2823-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 SB2823 Introduced 1/28/2010, by Sen. Dale E. Risinger SYNOPSIS AS INTRODUCED:
750 ILCS 5/503 from Ch. 40, par. 503
Amends the Illinois Marriage and Dissolution of Marriage Act. Makes a technical change in a Section concerning disposition of property.
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A BILL FOR
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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 503 as follows:
(750 ILCS 5/503) (from Ch. 40, par. 503)
Sec. 503. Disposition of property.
(a) For purposes of this 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

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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

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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

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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

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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

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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;

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(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,

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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,

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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

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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.)