Posted on July 4, 2022

Can An Ex-Spouse Claim Property After An Illinois Divorce?

Divorces finalize the terms of a relationship…except divorces never seem to be truly final. People are always going back to court to resolve a remaining disagreement.

While parenting time, child support, college expenses for children, and maintenance (formerly known as alimony) can all be changed after the final Judgment for Dissolution of Marriage is entered, there is one thing that should not be changed post-divorce: the division of assets and debts.

In Illinois, ex-spouses cannot come back to court to claim property.

“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)

The parties of an Illinois divorce should have entered into a Marital Settlement Agreement which describes all of the marital and non-marital assets and who will receive which asset.

There should even be a clause in that Marital Settlement Agreement for assets that aren’t described with specificity (such as household items).

An example of a catch-all asset distribution provision is “Unless otherwise stated in this Agreement, each party shall keep any assets in their sole name and control.”

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b)

What is done is done! If the property was awarded to one spouse, then the property will remain with that spouse after the divorce. It does not matter if the property award was unfair.

Still, as any good lawyer will eventually tell you, it depends. There are circumstances where a spouse can come back to court and claim property even if the divorce is already finalized.

When A Spouse Can Claim Property After An Illinois Divorce

When reviewing an Illinois divorce’ division of assets, the only thing that matters (in an agreement and not in a court order) if you agreed to the described division of assets with sufficient knowledge as to what those assets were.

“Courts are unable to set aside such a property settlement agreement unless there is clear and convincing evidence that the agreement was entered as the result of coercion, fraud or duress, or is contrary to public policy or morals.” Beattie v. Beattie, 368 NE 2d 178 – Ill: Appellate Court, 3rd Dist. 1977

Coercion, Fraud, Duress and Bad Moral/Public Policy. These are the only bases for making a claim of property after an Illinois Judgment Of Dissolution of Marriage is entered.

More important than the reason for a spouse to claim property after an Illinois divorce is the timing.

Within 30 days, Illinois courts are pretty liberal about considering changes to a final order.

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief” 735 ILCS 5/2-1203(a)

If you know the trial court will never properly rehear your request to claim your spouse’s awarded property, you must appeal to a higher court within 30 days.

“The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from” Ill. Sup. Ct. R. 303(a)

After 30 days, changing an Illinois order becomes very challenging.

“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section….The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record.” 735 ILCS 5/2-1401

First, there is a two-year limit beyond the 30 days to request a change in a final Illinois order.

“[T]he petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” 735 ILCS 5/2-1401(c)

Then, the party contesting the order must allege fraud or duress with specificity.

“In order to receive relief under section 2-1401, a petitioner must affirmatively allege specific facts to support the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence presenting this defense claim to the circuit court in the original action; and (3) due diligence in filing the petition.” In re Marriage of Roepenack, 966 NE 2d 1024 – Ill: Appellate Court, 3rd Dist. 2012

Claiming Assets After An Illinois Divorce Due To Fraud

Fraud is hiding assets. Hiding assets is easy to prove in an Illinois divorce. Does the asset exist? Was the asset disclosed in the Illinois divorce process?

A finding of fraud can be made if a spouse “tendered [their] comprehensive financial statement and affirmatively misrepresented to [the other spouse] that all of her assets were disclosed in it and accounted for in the MSA. That should be enough to vacate the allocation of all the assets.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160 – Ill: Appellate Court, 2nd Dist. 20

If your spouse is not actively living in the assets, driving the asset or wearing the asset, good luck being alerted to the asset’s existence after the divorce is finalized.

Claiming Assets After An Illinois Divorce Due To Duress

Proving duress in order to vacate a judgment is even more challenging. In Illinois, duress is not in the eye of the beholder. In Illinois, duress is an objective standard.

“Because stress is common in dissolution proceedings, stress alone is not enough.” In re Gibson-Terry and Terry, 325 Ill. App. 3d 317, 327 (2001).

“Mere annoyance or vexation will not constitute duress, but there must be such compulsion affecting the mind as shows the execution of the contract or other instrument is not the voluntary act of the maker.” (Internal quotation marks omitted.) Regenold v. Baby Fold, Inc., 68 Ill. 2d 419, 433 (1977)

“Acts or threats cannot constitute duress unless they are legally or morally wrong” In re Marriage of Barnes, 755 NE 2d 522 – Ill: Appellate Court, 4th Dist. 2001

“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

This high standard for proving duress after an Illinois divorce must be proved by the person alleging duress.

“[T]he burden of proving duress is on the person asserting it.” In re Marriage of Riedy, 474 NE 2d 28 – Ill: Appellate Court, 2nd Dist. 1985

An ex-spouse countering a duress claim will say “a deal is a deal. Even a bad deal. Even a deal where you got bad advice. That’s your signature on the paper.”

“Mere advice, argument or persuasion does not constitute duress or undue influence if the individual acts freely when he executed the questioned documents though the same would not have been executed except for the advice, argument or persuasion” People ex rel. Drury v. Cath. Home Bureau, 213 NE 2d 507 – Ill: Supreme Court 1966

Claiming An Asset Post-Divorce For Moral or Public Policy Reasons

The agreement or final order that the judge made may be so blatantly unfair in retrospect that it deserves a second look.

If the matter was resolved by agreement, almost no level of unconscionability will be sufficient to undo that agreement.

“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)

“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

“The terms of the agreement…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)

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)

If the final division of assets was not by agreement but rather by order of the court, the court already thinks the division of assets is fair and not unconscionable. Your only option will be to appeal your divorce case due to the judge’s decision being against the manifest weight of the evidence, an abuse of discretion or a misapplication of law.

Post-Divorce Actions Are Usually About Control.

I’ve divorced thousands of people over 16 years as a divorce lawyer. The good divorces are where people go their separate ways. The bad divorces usually involve some kind of personality disorder on (or both) spouses’ parts. When one spouse insists on control, that spouse is not going to stop trying to control the other spouse just because they are divorced. That spouse will exert whatever pressure they have to continue to dominate, control or even annoy their old spouse…and those spouses will often use the legal system.

This is not exclusive to the party trying to make a claim on an asset post-divorce. The party who insists on flaunting their new life to their ex-spouse is asking for attention (which is a kind of control). The attention that ex-spouse will get is a petition. The relationship is over…let it be over.

If an ex-spouse has hidden assets in an effort to control you, if a spouse pressured you into taking a deal where they can flaunt assets that should be yours or if a spouse has reopened a divorce case under a frivolous claim against your already divided assets, contact my Chicago, Illinois family law firm today to speak with an experienced Chicago divorce attorney.

Share Article on


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.

More about This Topic

Relevant Articles

Call Now Button