Family Law Rewrite Signed by Governor

A substantial revision of the Illinois Marriage and Dissolution of Marriage Act is among the bills signed by the governor this legislative session.

The Illinois General Assembly sent the following bills to Governor Rauner, who signed most and vetoed a few. This report, which summarizes legislation of particular interest to ISBA members, is organized by topic so you can quickly check what has happened in your practice areas. We link to the text of the public act and, where available. IBJ coverage of the legislation.

General practice

Uniform Interstate Depositions and Discovery Act. PA 99-79 (Barickman, R-Bloomington; Andersson, R-Geneva) establishes a simple clerical procedure in which a subpoena from an out-of-state court is reissued as a discovery subpoena in Illinois. (For more, see IL Law Update in the August IBJ and LawPulse in the September issue.)

Effective January 1, 2016.

Mechanics Lien Act. PA 99-178 (Sandack, R-Downers Grove; Harmon, D-Oak Park) allows a lien claimant to proceed directly against a bond substituted for the lien on the owner's real estate or funds. The court may dismiss all parties except the principal, surety of the bond, and the lien claimant. Defenses against the lien claimant are limited to those that could be asserted by the principal or contracting owner.

The "prevailing party" in an action brought under this new subsection shall be awarded its attorney fees. The "prevailing party" is defined as a lien claimant that recovers at least 75 percent of the amount of its lien claim, or the principal of the bond if the lien claimant recovers less than 25 percent of the amount of its lien claim. The attorney's fees for a prevailing lien claimant is limited to the amount remaining on the bond after the payment of the claim and interest, and the attorney's fees awarded to a bond principal is limited to 50 percent of the amount of the lien claim.

Effective January 1, 2016.

Structured Settlement Protection Act. PA 99-286 (Haine, D-Alton; Zalewski, D-Chicago) clarifies the original intent of the Act to allow Illinois courts the authority to approve settlement transfers despite anti-assignment restrictions in the underlying structured settlement agreement.

Effective August 5, 2015.

Personal Information Protection Act. Senate Bill 1833 (Biss, D-Skokie; Williams, D-Chicago) expands the type of information that triggers a breach notification to consumers, including medical information outside of federal privacy laws, biometric data, contact information if combined with identifying information, and login credentials for online accounts.

The bill also requires entities holding sensitive information to take reasonable steps to protect the information, to post a privacy policy describing their data collection practices, and to notify the Attorney General's office when breaches occur. (For more, see LawPulse, Bill expands requirements for disclosing data breaches, in the July 2015 Journal.)

Governor amendatorily vetoes on August 21, 2015.

Court security fee. PA 99-265 (Haine, D-Alton; Moffitt, R-Galesburg) allows a court security fee in excess of $25 to be imposed on civil litigants and convicted defendants if it is set according to an acceptable cost study under the Counties Code.

Effective January 1, 2016.

Judicial facilities fee. PA 99-269 (Holmes, D-Aurora; Keith Wheeler, R-Oswego) authorizes the Kane County Board, with concurrence of the chief judge of the circuit, to impose a judicial facilities fee not to exceed $30. It will be imposed on civil litigants and defendants in criminal cases.

Effective August 4, 2015.

Family law

The Parentage Act. PA 99-85 (Kelly Burke, D-Evergreen Park; Mulroe, D-Chicago) is a rewrite of the Illinois Parentage Act modeled after the uniform act from the Uniform Law Commission. It regulates establishment of a parent-child relationship, authorizes genetic testing, establishes procedures regarding parentage of a child of assisted reproduction, and provides for establishment of child-support obligations. (For more, see LawPulse, New legislation brings Parentage Act up to date, in the July 2015 Journal.)

Effective January 1, 2016.

IMDMA rewrite. PA 99-90 (Mulroe, D-Chicago; Kelly Burke, D-Evergreen Park) is a major rewrite of the Illinois Marriage and Dissolution of Marriage Act. It amends every part of the IMDMA, including relocation, educational expenses, and changes the terminology from custody and visitation to parenting time. (For more, see LawPulse, Family law rewrite goes to the governor, in the July 2015 Journal.)

Effective January 1, 2016.

Child-support fines. PA 99-157 (Wallace, D-Rockford; Lightford, D-Chicago) gives the Department of Healthcare and Family Services the power to levy administrative fines and liens against a payor who willfully fails, after receiving two reminders from HFS, to withhold or pay over income under a properly served income-withholding notice or otherwise fails to comply with any other duties under the Income Withholding for Support Act.

Effective July 1, 2017.

Criminal, juvenile justice

Consular notification of foreign nationals. PA 99-190 (Drury, D-Highwood; Raoul, D-Chicago) requires that a law enforcement officer in charge of custodial facilities must ensure that a foreign national is advised within 48 hours of booking or detention that he or she has the right to communicate with the appropriate consulate as required by the Vienna Convention.

Effective January 1, 2016.

Lifetime driver's license revocation. PA 99-290 (Nekritz, D-Buffalo Grove; Mulroe, D-Chicago) amends Illinois law that prohibited a person from ever legally driving again after four DUI convictions. The new law retains this prohibition, but it permits the person to ask the Secretary of State for an RDP (restricted driving permit) after a five-year period. If granted, the driver would be required to permanently use a BAIID device to drive for certain limited purposes and at designated times, such as to work or for child-care responsibilities.

Effective January 1, 2016.

Decriminalization of cannabis. House Bill 218 (Cassidy, D-Chicago; Noland, D-Elgin) imposes a fine of no more than $125 for possession of 15 grams or less of cannabis. (2) Establishes a per se standard for Cannabis-DUI of 15 nano/milliliter of blood or 25 nano/milliliter of saliva in system instead of a trace of cannabis. (3) Allows for alternative ways to test for cannabis DUI using "any bodily substance" (including saliva) for testing. This is an expansion from current law of breath, blood, and urine. (4) Keeps juvenile ordinance and civil violation dispositions confidential to reflect the intent of the Juvenile Court Act and limit collateral damage to minors. (For more, see Law Pulse, Bill would decriminalize pot possession, tie DUI to impairment, in the June 2015 Journal.)

Governor amendatorily vetoed August 14, 2015. The General Assembly must either accept or override. If the General Assembly does neither, the bill is dead. The amendatory veto does three things:

(1) Reduces the amount of cannabis subject to this civil proceeding 10 grams instead of 15 grams.

(2) Increases the fine from a minimum of $55 to $100 and the maximum of $125 to $200.

(3) Reduces the DUI per se standard from 15 nano/milliliter of blood to 5 nano/milliliter.

New criminal law procedures. PA 99-413 (Lang, D-Skokie; J. Cullerton, D-Chicago) implements the crime victim constitutional amendment adopted in the 2014 general election. Reorganizes and modifies the rights of crime victims and establishes additional procedures for enforcing victims' rights. Provides that the Act does not grant any person a cause of action in equity or law for compensation for damages or attorney's fees, nor does it create a ground for relief requested by the defendant in a criminal case. Provides that presentence reports shall be open for inspection to the victim of a crime as set forth in the Act.

Effective August 20, 2015.

Body cameras. PA 99-352 (Raoul, D-Chicago; Sims, D-Chicago) is a comprehensive package that includes authorization and minimum standards for officer-worn video cameras. It permits use of body cameras and establishes minimum standards for retention (90 days for flagged incidents) for individuals captured on camera.

It requires independent investigation of officer-involved incidents if members of the public are killed, mandates minimum training for those principally investigating those incidents, and clarifies the process by which an independent prosecutor ought to be appointed to review such incidents. It also adds a new requirement for officers to provide persons subjected to "Terry Stops" with a stop receipt which would include officer-identifying information and the rationale for the stop.

Effective January 1, 2016 for most of these changes.

Juvenile sentencing. PA 99-69 (Currie, D-Chicago; Harmon, D-Oak Park) codifies the U.S. Supreme Court's holding in Miller v. Alabama that a mandatory sentence of natural life without parole for a person under 18 years of age is a violation of the Eighth Amendment's cruel and unusual punishment clause. The bill's application is prospective only.

Effective January 1, 2016.

Juvenile justice transfer. PA 99-258 (Nekritz, D-Buffalo Grove; Raoul, D-Chicago) ends automatic transfer to adult court for minors under 15 and expands the discretion of juvenile court judges to make the transfer decision for children ages 16 and 17 through an individualized review of each minor's case.

Effective January 1, 2016.

Juvenile justice detention. PA 99-254 (Gabel, D-Evanston; Steans, D-Chicago) prohibits a child under the age of 13 from being held in a detention facility unless a local youth service provider has been contacted that was unable to accept the child.

Effective January 1, 2016.

Juvenile justice incarceration. PA 99-268 (Raoul, D-Chicago; Nekrtiz, D-Buffalo Grove) ends the incarceration of children for misdemeanors, requires limits for juvenile parole terms, and includes other provisions to begin to reduce the population of incarcerated minors.

Effective January 1, 2016.

Speeding and supervision. PA 99-212 (Walsh, D-Joliet; Mulroe, D-Chicago) does the following: (1) Creates the offense of aggravated special-speed limit for going 26 or more mph but less than 35 (Class B misdemeanor) and for going more than 35 mph in a school zone or highway-construction zone (Class A misdemeanor). (2) Prohibits supervision for aggravated speed in a highway-construction zone. (It doesn't change the blanket prohibition against supervision for speeding in a school zone.) (3) Allows supervision to be given for 26 or more mph over the posted speed limit if the driver has never been convicted of this offense or been given supervision for it. (4) Prohibits supervision from being given if driving more than 26 or more mph over the posted speed limit if it was done in an urban district. (For more, see IL Law Update under "Traffic Laws.")

Effective January 1, 2016.

Probate, elder law, and real estate

Guardianship of minors. PA 99-207 (Hunter, D-Chicago; Currie, D-Chicago) requires the petitioner to give notice of the hearing on the petition for appointment of a standby guardian or a guardian of a minor not less than seven (instead of three) days before the hearing. Any order for removal must include the date of the removal, the reason for removal, and the proposed residential and mailing addresses of the minor after removal.

Effective July 30, 2015.

Disabled adults. PA 99-70 (David Harris, R-Arlington Heights; Stadelman, D-Rockford) amends the Probate Act of 1975 to provide that a temporary guardian has the limited powers and duties (instead of "all of the powers and duties") of a guardian of the person or of the estate that are specifically enumerated in the court order.

Effective January 1, 2016.

Property fraud alert system. PA 99-75 (Greg Harris, D-Chicago; Cunningham, D-Chicago) provides that in a county that has a property-fraud alert system, a county recorder may create a registration form to register a property owner on the county's property fraud alert system. A real estate professional may file the registration form with the recorder on behalf of a property owner. Real estate professionals must register with the county recorder before filing the registration forms on behalf of property owners.

Effective January 1, 2016

Mortgage foreclosure. PA 99-24 (Mulroe, D-Chicago; Lang, D-Skokie) provides that a court is not required to appoint a special representative for a deceased mortgagor to defend the action if there is a (1) beneficiary under a transfer on death instrument, (2) person or entity that was conveyed title to the property by the deceased mortgagor prior to death, (3) person or entity that was conveyed title to the property under the administration of the deceased's estate, or (4) trust that conveyed title to the property.

Effective January 1, 2016.

Disabled adults. PA 99-302 (Silverstein, D-Chicago; Breen, R-Lombard) creates a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled in two situations: (1) a plenary guardian has been appointed or (2) a limited guardian has been appointed and the court has found that the testator lacks testamentary capacity.

The rebuttable presumption is overcome by clear and convincing evidence that the testator had the capacity to execute the will or codicil, and it does not apply if the will or codicil was executed in compliance with a court order. This subsection applies only to wills or codicils executed or modified after the effective date of this act.

Effective January 1, 2016.

Trusts and Trustees Act. PA 99-337 (Silverstein, D-Chicago; McAsey, D-Plainfield) authorizes trustees to use a "certification of trust" form that may be relied upon by third parties without obtaining a copy of the trust instrument. It is modeled after section 1013 of the Uniform Trust Code.

Effective August 10, 2015.

Elder abuse. PA 99-272 (Thomas Bennett, R-Watseka; Barickman, R-Bloomington) expands the current civil cause of action for financial exploitation of the elderly or disabled by deleting the precursor of an indictment and the current limitation of sole remedy that requires a return of the property.

Effective January 1, 2016.

Citation to discover assets. PA 99-93 (Silverstein, D-Chicago; Gordon-Booth, D-Peoria) expands the current statute's reach to compel appearance before the court of any person whom the petitioner believes may be liable to the estate of a ward under any civil cause of action. Also expands the statute to include assets in the person's possession or control or previously in the person's possession or control.

Effective January 1, 2016.

Health Care Power of Attorney. PA 99-328 (Haine, D-Alton; Williams, D-Chicago) provides the following: (1) A psychologist may not witness the signing of a health care agency and removes that current prohibition for "mental health providers." (2) Adds an option on the short-form POA for a principal to select whether the agent can have access to the principal's medical records and information. (3) Permits an agent to pursue applications for government benefits made during a principal's lifetime if no administrator or executor is acting on behalf of the principal's estate. (4) Adds an option allowing the principal to nominate the agent as the guardian of the principal's person should one become necessary. (5) Provides that a physician may determine that the principal is unable to make health care decisions for himself or herself only if the principal lacks decisional capacity as that term is defined in the Health Care Surrogate Act.

Effective January 1, 2016.

Condominium Property Act. House Bill 2644 (Cassidy, D-Chicago; Steans, D-Chicago) makes it void as a matter of public policy if a provision in a condominium instrument purports to limit or restrict the representative rights of the board if it requires prior consent of the unit owners or requires arbitration or mediation of a dispute between the developer or one or more declarants under the condominium instruments. It also deletes language providing that a provision in a declaration that would otherwise be void and ineffective may be enforced if it is approved by a vote of not less than 75 percent of the unit owners at any time after the election of the first unit-owner board of managers.

Governor vetoed August 13, 2015, because he believes it is an unnecessary restriction on the rights of condominium owners with respect to their property

Real estate claims in Cook County. PA 99-439 (Cunningham, D-Chicago; Evans, D-Chicago) authorizes the Cook County Recorder of Deeds to establish a three-year pilot program that permits documents to be recorded against a property in foreclosure by judicial order only. It requires a judge to issue an order barring any "nonrecord claimants" from recording an interest on the foreclosed property without approval of the court. Exempts mechanics lien claimants and units of local government and a bank or financial institution that recorded the lis pendens notice of foreclosure.

Effective January 1, 2016.

Common-Interest Community Association Act. Senate Bill 1344 (Haine, D-Alton; Beiser, D-Alton) provides that no action to incorporate a common-interest community as a municipality may commence until an instrument agreeing to incorporation has been signed by 51 percent (instead of two-thirds) of the members.

Governor vetoed August 13, 2015.

Common-Interest Community Association Act. PA 99-41 (Hastings, D-Matteson; Kelly Burke, D-Oak Lawn) makes associations organized as limited liability companies subject to the Act.

Effective July 14, 2015.

Local government

Boundary-line agreements. PA 99-292 (Andersson, R-Geneva; McConnaughy, R-St. Charles) amends the Municipal Code to provide that it shall not be considered a "conflict" under the boundary-line provisions of the act if a municipality that is a party to a jurisdictional boundary-line agreement cedes property within its own jurisdiction to another municipality not a party to the same jurisdictional boundary-line agreement.

Effective August 6, 2015.

Municipal Code violations. PA 99-293 (Andersson, R-Geneva; McConnaughy, R-St. Charles) creates an alternative proceeding if the time expires in which judicial review may be sought after a final determination of a code violation. If a defendant has failed to comply with a judgment to correct a code violation or pay a fine, any expenses incurred by a municipality to enforce the judgment is a debt due and owing the municipality by the defendant.

It also authorizes the municipality to impose a lien on the real estate or personal estate of the defendant in the amount of the debt. In addition, it permits a hearing officer to set aside any judgment entered by default and set a new hearing date if the hearing officer determines that the petitioner's failure to appear was for good cause or because the municipality did not provide proper service of process.

Effective August 6, 2015.

Open Meetings Act - requests for review. PA 99-402 (McSweeney, R-Cary; Duffy, R-Barrington) creates what is essentially a statute of repose for requests for review to be filed with the Public Access Counselor. If the facts concerning the violation are not discovered within 60 days of the violation but are discovered at a later date by a person using reasonable diligence, the request must be made within two years from the alleged violation.

Effective August 19, 2015.

Open Meetings Act - school security exemption. PA 99-235 (Thomas Bennett, R-Watseka; Koehler, D-Peoria) provides that a public body may hold closed meetings to consider school building safety and security.

Effective January 1, 2016.

County budgets. PA 99-273 (Nekritz, D-Buffalo Grove; Morrison, D-Deerfield) changes budgeting for counties not required by law to pass an annual appropriation bill within the first quarter of the fiscal year. It requires a budget to be made available for public inspection and provided to the public at a public meeting at least 15 days before final action taken on that budget. It also allows a county board to act at a public meeting to amend a budget after making that budget available to the public and before final adoption.

In addition, it requires notices pertaining to the budget meeting and the proposed budget to be posted on the county's official website, if it maintains one. If a county does not maintain a website, it requires the county to comply with the Open Meetings Act in giving notice of such agenda items and make the proposed budget available for public inspection.

Effective January 1, 2016.

Collection of fines and penalties. PA 99-18 (Althoff, R-McHenry; Franks, D-Marengo) allows a default in the payment of a fine or penalty or any installment to be collected in any way that any other monetary judgment is collected. It also allows the state's attorney to retain attorneys and private collection agents to collect them and their fees to be charged to the offender.

Effective January 1, 2016.

Jim Covington is the ISBA Director of Legislative Affairs.

jcovington@isba.org