Posted on July 17, 2021

Agreements Before An Illinois Divorce Is Final

The Illinois divorce process leads up to a final day when the judgment for dissolution of marriage is entered and the final agreement of the parties is stamped by the clerk of court. Leading up to that point, the parties are permitted and encouraged to enter into agreements to resolve their temporary and even final issues in their divorce. The question is: are these agreements binding and, if so, how long are the agreements binding for?

Agreements about division of debts and assets between divorcing parties will be upheld.

“It is well settled in Illinois that the law favors the amicable settlement of property rights in cases of marital dissolution.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825 (Ill. App. Ct. 1990)

“The law favors the amicable settlement of property rights in marital dissolution cases, and all presumptions are in favor of the validity of the agreement.” In re Marriage of Prill, 2021 IL App (1st) 200516 (citations omitted)

“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” 750 ILCS 5/502(a)

“[S]ettlement agreements are binding absent a finding of unconscionability.” In re Marriage of Stoker, 2021 IL App (5th) 200301

“If the parties decide to settle their property rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.” In re Marriage of McLauchlan, 2012 IL App (1st) 102114

Agreements about child support and parenting time are also binding…but an Illinois divorce court has the power to invalidate those agreements.

“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 moment those written agreements are binding is when the agreement is signed, not when it is entered as a judgment or order.

A written Illinois divorce agreement’s “unambiguous statements clearly indicate the intent of the parties to be bound upon execution of the agreement, rather than upon approval by the court.” In re Marriage of Vella, 237 Ill. App. 3d 194, 199 (Ill. App. Ct. 1992)

Agreements outside of court are rarely formal. An agreement may be even be a series of emails or texts exchanged between the parties. 

“[T]he parties’ correspondence may constitute a contract, even if it is necessary to refer to several documents to establish its terms.” Harris v. American General Finance Corp., 54 Ill. App. 3d 835, 838-39 (1977)

The emails or texts can be submitted to show that the parties had an agreement with each individual email or text constituting the offer, acceptance or consideration.

In re Marriage of Christos, 2023 IL App (1st) 211187-U, ¶ 66 notes that some courts, both in Illinois and in other jurisdictions, have recognized that an exchange of e-mails may constitute an enforceable agreement.

Williams v. LincolnWay Community Bank, 2022 IL App (1st) 220131-U, ¶ 21 notes that establishment of a contract would require reference to the parties’ e-mails as well as documents referenced in the e-mails.

Oral agreements may even be binding before an Illinois divorce is finalized. If the agreement is truly simple enough to be understood completely without being in writing.

“While generally oral property settlements are binding upon the parties…oral property settlement[s] cannot be concluded by the parties’ oral consent when material features of the settlement are challenged by the parties before entry of the decree.” In re Marriage of Lakin, 278 Ill. App. 3d 135, 140 (Ill. App. Ct. 1996)(Citations Omitted)

An Agreement Is a Contract In An Illinois Divorce

Once one party alleges there is an agreement over a matter, they are really alleging that the parties to the divorce have entered into a contract with each other.

“Where the contents of an agreement are testified to and the objecting party fails to object or to give evidence to the contrary, the agreement is established.” In re Marriage of Black, 133 Ill. App. 3d 59, 63 (Ill. App. Ct. 1985)

“The law and the public policy of Illinois permit and require that competent parties be free to contract with one another.” Liccardi v. Stolt Terminals, Inc., 178 Ill. 2d 540, 549 (1997)

“It is also well settled that the terms of a settlement agreement are subject to the ordinary rules for the construction of contracts, and that the burden rests on the party asserting the agreement to establish its existence by clear and convincing evidence.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825-26 (Ill. App. Ct. 1990)

“For the contract to be enforceable, the material terms must be definite and certain, meaning that the court is enabled from the terms and provisions, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do.” In re Haller, 980 N.E.2d 261, 269 (Ill. App. Ct. 2012)

Contracts are binding. You can’t just change your mind later.

“A court should not set aside a settlement agreement merely because one party has second thoughts.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (Ill. App. Ct. 1994)

“Property settlement agreements, which have been assented to by both parties, may not be cancelled solely because one party withdraws his assent prior to the entry of the judgment; a settlement agreement should not be disregarded simply because one party has second thoughts” In re Marriage of Stoker, 2021 IL App (5th) 200301

Contracts cannot be voided. Neither can a contract be rewritten.

An Illinois court “not rewrite a contract to suit one of the parties, but will enforce the terms as written.” Wright v. Chicago Title Insurance Co., 196 Ill. App. 3d 920, 925 (1990).

How To Tell If Your Illinois Divorce Agreement Will Be Upheld

If your agreement is in writing, the written agreement will have terms that may be definite and certain. Whether the terms are certain and definite enough will depend on the individually written terms of the agreement.

“The language used in the marital agreement generally is the best indication of the parties’ intent ” In re Marriage of Dundas, 355 Ill. App. 3d 423, 426 (Ill. App. Ct. 2005)

The agreement doesn’t have to be in writing, though. It can be an oral agreement and be testified to by any party present at the agreement’s formation. The court will determine who they believe and what they believe the oral agreements terms are or are not. “It is the function of the trial court to resolve conflicting testimony by assessing the credibility of the witnesses and the weight to be accorded their testimony.” In re Marriage of Smith, 806 N.E.2d 727, 731 (Ill. App. Ct. 2004)

If your agreement is a contract, that agreement will be upheld by an Illinois divorce court as being binding on both parties.

“The basic requirements of a contract are offer, acceptance, and consideration. Consideration is a bargained-for exchange of promises or performance. An act or promise that benefits one party or is detrimental to the other party is sufficient consideration” In re Marriage of Tabassum, 377 Ill. App. 3d 761, 770 (2007) (citations omitted)

The offer is the description of the proposed agreement whether written or not. The acceptance is the acknowledgment of the proposed offer and its terms. Either a signature or just saying “Yes. I’ll do that”

An agreement in a divorce almost always says “If you’ll do this. Then I’ll do that.” That is consideration, a bargained for exchange of promises.

Unless one of the promises isn’t a real promise because the party was required to perform the promise via previous agreement or duty. “[M]erely promising to do what [a party] was already in duty bound to do [is not consideration]. A promise of that kind was not a sufficient consideration.” Litwin v. Litwin, 375 Ill. 90, 96 (Ill. 1940)

Once you have a valid contract, the only way to invalidate the contract is to have the contract declared “unconscionable.

Unconscionability is the “[d]egree of unreasonableness and unfairness of a contract or deal prompting a court to modify or nullify it.” Black’s Law Dictionary (10th ed. 2014)

An ”agreement [is] binding absent a finding of unconscionability.” In re Marriage of Wig, 2020 IL App (2d) 190929

“The test for establishing an unconscionable bargain is to determine whether the agreement is one which no reasonable person would make, and no honest person would accept.”Saunders v. Michigan Ave. Nat. Bank, 662 NE 2d 602 – Ill: Appellate Court, 1st Dist., 4th Div. 1996

A finding of duress creates an automatic finding of unconscionability.

“Duress may be sufficient to render an agreement between spouses unconscionable. Duress includes oppression, undue influence, or taking undue advantage of the stress of another to the point where another is deprived of the exercise of free will.” In re Marriage of Richardson, 606 NE 2d 56 – Ill: Appellate Court, 1st Dist., 6th Div. 1992

An agreement in advance of trial or a final judgment of dissolution of marriage would clearly have a massive impact on the final terms of the divorce if decided by a judge. In order to get some kind of clarity on whether the agreement’s terms will be held as binding, you’ll need to file a Motion for Declaratory Judgment.

“A declaratory judgment is one which simply declares the rights of the parties… the opinion of the court on a question of law, without ordering anything to be done” Black’s Law Dictionary (10th ed. 2014)

“The trial court may grant declaratory relief pursuant to section 2-701 of the Code of Civil Procedure.” Hess v. Miller, 2019 IL App (4th) 180591

Either party may come to an Illinois divorce court in advance of trial and request that the agreement be declared valid or invalid. That this disagreement is a binding controversy as to the rights of the parties.

“The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy.” 735 ILCS 5/2-701(a)

Orders Versus Agreements In An Illinois Divorce

While most agreements in a divorce get certified and entered as an order, it is not necessary for an agreement to be entered as an order to be binding on the parties.

An agreement can exist independently or also as a court order.

Orders that were not agreed can be revoked at any time by the court.

“A temporary order entered under this Section:

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)

These orders are temporary and, therefore, automatically terminate when the final judgment for dissolution of marriage is entered.

An 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)

Be very careful when an order is labelled an “Agreed Order” because you’ll be stuck with it.

Furthermore, take great care while entering into any and all agreements with your spouse as they will be binding on both you and the courts without some finding of unconscionability. A series of seemingly innocuous agreements could create the scaffolding and structure for the final terms of your Illinois divorce.

If you’d like to discuss the strategy of accepting and denying agreements in advance of your Illinois divorce trial or final hearing, contact our Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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