During an Illinois divorce, many agreements are reached before the final judgment. These interim, non-final agreements (in emails, court orders, or memoranda) may or may not become binding. When do they bind you, and how can you protect your interests?
Why Are Non-Final Agreements Important In An Illinois Divorce?
Almost every agreement between parties in an Illinois divorce gets reduced to writing and is memorialized as an order.
But, you only have to live with these agreements/orders until you change them. These orders are all temporary and can be changed at any time.
“(d) A temporary order entered…:
(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)
Once the final Judgment of Dissolution of Marriage is entered all these agreements/orders expire.
A temporary order “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. 750 ILCS 5/501(d)(3)
After a full hearing on the final merits, “the temporary order has fulfilled its purpose and is superseded by the final—or permanent—order….Once the trial court enters the final order, an assumption arises that the court has thereby adjusted for any inequity in its temporary orders.” In re Marriage of Fields, 283 Ill. App. 3d 894, 901 (1996).
Despite their temporary nature, these agreements still exist in spirit because they are relied upon by the court when ordering final non-modifiable orders.
“[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except the following, which is known as “non-marital property:… property excluded by valid agreement of the parties” 750 ILCS 5/503(a)(4)
The court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: any prenuptial or postnuptial agreement of the parties” 750 ILCS 5/503(d)(7) (and a postnuptial agreement can be almost anything)
“The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of…any valid agreement of the parties” 750 ILCS 5/504(a)(13)
“In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider…any prior agreement or course of conduct between the parents relating to decision-making with respect to the child” 750 ILCS 5/602.5(c)(6)
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider…any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child” 750 ILCS 5/607(b)(4)
Agreements whether actual or alleged can massively impact the final order. The solution is NOT to refuse to agree to anything in fear of being held accountable to that agreement in the future. Rather, it is important to understand how to establish that you did NOT actually agree to a partial or temporary agreement if it may negatively impact your final order.
Are you breaking an agreement? No. You’re establishing that there never was a final agreement.
Agreements In An Illinois Divorce Should Be In Writing
“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children…after the children attain majority…Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court, before proceeding to an oral prove up.” 750 ILCS 5/502(a)
A written agreement about anything other than children is binding on the court unless the terms are so extreme as to be unconscionable.
“The terms of the agreement, except those providing for the support and parental responsibility allocation 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.” 750 ILCS 5/502(b)
The finality of a written agreement is all well and good when the final divorce agreements, the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities are in writing, signed by both parties and attested to in a prove up.
In the divorce litigation process, there are usually many agreements in advance of those final agreements which may or may not be binding.
Partial Agreements Are Usually Not Binding In An Illinois Divorce
Whether oral or written, proposed agreements are not binding unless it is clearly agreed that they are binding. Illinois law recognizes that agreements can be developing yet not completely developed (and, thus, binding).
“Illinois…allows parties to approach agreement in stages, without fear that by reaching a preliminary understanding they have bargained away their privilege to disagree on the specifics. Approaching agreement by stages is a valuable method of doing business.” Empro Mfg. Co., Inc. v. Ball-Co Mfg., Inc., 870 F. 2d 423 – Court of Appeals, 7th Circuit 1989
If it is clear that the potential agreement is no different than the final agreement, the potential agreement may be binding.
“The fact that parties contemplate that a formal agreement will eventually be executed does not necessarily render prior agreements mere negotiations, where it is clear that the ultimate contract will be substantially based upon the same terms as the previous document.” Chicago Investment Corp. v. Dolins, 481 NE 2d 712 – Ill: Supreme Court 1985
“[I]f the parties agree that a formal document will be prepared only as a memorialization of the oral agreement, the bargain is binding even though the document has not been executed.” Ceres Illinois, Inc. v. Ill. Scrap Processing, Inc., 500 NE 2d 1 – Ill: Supreme Court 1986
If, at any time, either party says, “this is not final until we sign” then no potential agreement can be binding until the final written agreement is signed.
“If the parties construe the execution of a formal agreement as a condition precedent, then no contract arises unless and until that formal agreement is executed.” Chicago Investment Corp. v. Dolins, 481 NE 2d 712 – Ill: Supreme Court 1985
“However, even where the essential terms have been agreed upon, if the clear intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery.” Ceres Illinois, Inc. v. Ill. Scrap Processing, Inc., 500 NE 2d 1 – Ill: Supreme Court 1986 (quotations omitted)
This misunderstanding as to ‘what is a binding agreement’ almost always comes in the form of emails. If you exchange emails that seem to confirm an agreement, unless there is clear intent that the emails are binding, Illinois law may treat the emails as negotiations, not contracts.
The Illinois Supreme Court has a six-part test as to whether an agreement must be formalized to be final and binding.
“[T]he inquiry into whether the parties to an agreement intended that it be reduced to writing may include consideration of the following factors:[1] whether the contract is one usually put into writing; [2] whether there are a few or a great many details; [3] whether the amount of money involved is large or small; [4] whether the agreement requires a formal writing for the full expression of the covenants; and [5] whether the negotiations themselves indicated that a written document was contemplated as their conclusion… [6] Also, where the anticipated document is never executed, the parties’ conduct and statements subsequent to the oral agreement may be decisive of the question whether a contract had been made.” Ceres Illinois, Inc. v. Ill. Scrap Processing, Inc., 500 NE 2d 1 – Ill: Supreme Court 1986 (quotations omitted)
Personally, I think that if anything remains unknown in the future about the potential deal, it’s not binding unless it’s formal. For example, Illinois divorce courts will admonish the parties, “you better have an agreement by the next court date or we’re going to hearing. This looming hearing makes any perceived agreement in advance of that hearing non-binding unless the agreement is complete. In re Marriage of Chatlin, 153 Ill. App. 3d 810, 814 (1987)
Lawyers Cannot Enter Into Any Agreements Without The Express Consent Of Their Clients
Another bar to non-final agreements is if lawyers enter into these agreements without the express permission of their client.
Typically, clients are bound by agreements entered into by their lawyer….even if they have not signed the final agreement.
“In general, a client is bound by the acts or omissions of his attorney within the scope of the attorney’s authority.” Sakun v. Taffer, 268 Ill. App. 3d 343, 351 (1994)
If there is any indication that the client did not expressly authorize the lawyer to enter into the agreement, the agreement is likely to be non-binding.
“Where a settlement is made out of court and is not made a part of the judgment, the client will not be bound by the agreement without proof of express authority. This authority will not be presumed and the burden of proof rests on the party alleging authority to show that fact. Further, in such a case, opposing counsel is put on notice to ascertain the attorney’s authority. If opposing counsel fails to make inquiry or to demand proof of the attorney’s authority, opposing counsel deals with the attorney at his or her peril.” Brewer v. National RR Passenger Corp., 649 NE 2d 1331 – Ill: Supreme Court 1995 (citations omitted)
If a client disclaims that express authority was given to a lawyer to enter into an agreement, that agreement will be null because it is the burden of the other side to prove that the express authority existed.
“The party alleging [a lawyer had express] authority [to enter into an agreement] has the burden of proving that fact.” Lukanty v. Moglinicki, 209 NE 3d 368 – Ill: Appellate Court, 1st Dist., 3rd Div. 2022 (citations and quotations omitted)
The lawyer cannot testify against their own client as to the express authority because of attorney-client confidentiality. This makes almost every unilaterally approved agreement by a lawyer effectively revokable.
Divorce court is not a court of honor. It’s a court of divorce where impermanence is the rule. Don’t be afraid to say, “I take it back,” or, “It ain’t over until it’s over,” in order to get the best result for the next chapter of your life.
To learn more about orders, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer.
