Posted on October 27, 2021

Can I Sue My Ex For Breach Of Contract In Illinois?

The most basic principle in Anglo-American common law is that if you make a promise, you have to keep your promise.

In Illinois, promises between former spouses are usually enshrined in a Marital Settlement Agreement and other subsequent orders entered and approved by the court. Additionally, those agreements must be enforced by the domestic relations judge to which the divorce case is assigned. It is not uncommon, however, to find that the domestic relations judge does not appropriately enforce a Marital Settlement Agreement. In such a situation, can you try to sue your former spouse for breach of contract in front of a completely different judge?

What Is A Contract In Illinois?

In Illinois a contract is “an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing.” People v. Dummer (1916), 274 Ill. 637, 640.

Having a contract is one thing. Enforcing the contract in an Illinois court of law is another.

“To establish a breach of contract claim, a plaintiff must prove the existence of a valid and enforceable contract, performance by the plaintiff, breach of the contract by the defendant, and damages or injury to the plaintiff resulting from the breach.” Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶ 13

“To state a cause of action for breach of contract, plaintiffs must establish: (1) an offer and acceptance; (2) consideration; (3) definite and certain terms of the contract; (4) plaintiffs’ performance of all required contractual conditions; (5) defendants’ breach of the terms of the contract; and (6) damage resulting from the breach.” Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1082 (Ill. App. Ct. 1998)

Any written Marital Settlement Agreement is a valid and enforceable contract by operation of law.

“Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” 750 ILCS 5/502(e) (emphasis mine)

Any subsequent orders modify the Marital Settlement Agreement and are, therefore, also contracts.

Oral contracts between spouses are likely to only be upheld as an enforceable contract if the one party relied on the oral contract to their detriment. This concept of upholding oral contracts due to reliance upon them is called “equitable estoppel”

“A claim of equitable estoppel exists where a person, by his or her statements or conduct, induces a second person to rely, to his or her detriment, on the statements or conduct of the first person. The party asserting a claim of estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the facts, and such reliance have been reasonable.” In re Marriage of Smith, 806 N.E.2d 727, 730-31 (Ill. App. Ct. 2004)

If you have a valid contract between you and your ex-spouse, you can enforce that contract…in divorce court. You cannot sue them for breach of contract in a separate court where contract disputes are resolved.

Why You Cannot Sue Your Ex-Spouse For Breach Of Contract

Your ex-spouse and yourself are already in litigation…your divorce. When one case is open, the Illinois courts do not want multiple cases open between the same parties over the same matters.

Illinois law encourages “the elimination of repetitious suits and the relief of courts and litigants alike from the unnecessary burden of trying the same issues pending in another action.” Skolnick, 32 Ill.2d at 59, 203 N.E.2d 428.

When someone files a complaint for a matter that could be brought up in an existing case, the other party can file a motion to strike the new case

“Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon [the fact] [t]hat there is another action pending between the same parties for the same cause.” 735 ILCS 5/2-619(a)(3)

If a divorce case already exists, that case is the forum for resolving all matters related to the divorce. “Dissolution proceedings are designed to dispose of all matters connected with the dissolution of a marriage” Davis v. Davis, 144 NE 3d 649 – Ill: Appellate Court, 3rd Dist. 2019

Filing a breach of contract case when there is an existing divorce case will likely lead to sanctions.

“Lawyers or parties sign pleadings certifying that the have “read the pleading, motion or other document; that to the best of [their] knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Sup. Ct. R. 137

A separate action filed in the wake of a divorce will result in a finding that the contract complaint petitioner “lacked a legal or factual basis to pursue his breach of contract action” Davis v. Davis, 144 NE 3d 649 – Ill: Appellate Court, 3rd Dist. 2019

In theory, it’s possible that a divorced couple could have a contract between them that was out of the bounds of their divorce. Perhaps, if both parties pooled non-marital money for a business venture. But, this hypothetical scenario is suspiciously improbable.

Subsequent agreements will likely just be considered modifications to the original divorce agreement.

While you cannot get a judicial “second opinion” on the enforceability of your agreements with your ex, you can return to the divorce court you were assigned to enforce the terms of your Marital Settlement Agreement or subsequent agreements.

You Can Enforce Your Agreements In An Illinois Divorce Court

You must, initially, return to the court where your divorce was entered in order to enforce the terms of any agreements related to the divorce.

“Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered” 750 ILCS 5/511(a)

The “judicial circuit wherein such judgment was entered” is likely still occupied by the judge who entered it (although there is quite a bit of judicial migration in bigger counties).

It may be possible to obtain a new judge by enforcing your judgment for dissolution of marriage in another Illinois county, however.

“In any post-judgment proceeding to enforce or modify in one judicial circuit the judgment of another judicial circuit of this State, the moving party shall commence the proceeding by filing a petition establishing the judgment and attaching a copy of the judgment as a part of the petition.” 750 ILCS 5/511(b)

This transfer would have to be based on the fact that one or both parties live in the new county or the issue in controversy is best investigated and resolved in the new county.

A party to a divorce may file a motion to move the divorce due to inconvenience (forum non conveniens). The court will then consider “the convenience of the parties; the relative ease of access to sources of testimonial, documentary, and real evidence; the availability of compulsory process to secure the attendance of unwilling witnesses; the cost of obtaining the attendance of willing witnesses; the possibility of viewing the premises, if appropriate; and all other practical considerations that make a trial easy, expeditious, and inexpensive.” Kuhn v. Nicol, 2020 IL App (5th) 190225 – Ill: Appellate Court, 5th Dist. 2020

It is okay to be creative and think of other ways to resolve the problems between you and your ex that don’t involve returning to divorce court. But, going to an additional court will probably just result in even more problems…and sanctions. Contact my Chicago, Illinois family law firm to learn more about all your options during and post-divorce.

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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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