Obviously, when a court order is entered with the clerk’s seal and the judge’s signature, any agreement that is memorialized in the order becomes the law of the land.
What about the time between when the parties agree…and when the court enters the order? Can an Illinois divorce litigant change their mind in that window of time. Can you change an agreement after mediation and signature in an Illinois divorce?
When Is Mediation Done In An Illinois Divorce?
Mediation happens in an Illinois divorce whenever the parties agree to mediate.
Illinois courts really want you to come to an agreement in your divorce and they don’t care how you do it.
“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. The parties may also enter into an agreement allocating the sole or joint ownership of or responsibility for a companion animal.” 750 ILCS 5/502
Mediation is only mandatory if there is a disagreement between the parties regarding children.
“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.” 750 ILCS 5/602.10(b)
Even when the parties are agreed they must include a mediation provision in their final parenting plan.
Every allocation of parenting time and parenting responsibilities must include “a mediation provision addressing any proposed reallocation of parenting time or regarding the terms of allocation of parental responsibilities, except that this provision is not required if one parent is allocated all significant decision-making responsibilities” 750 ILCS 5/602.10(f)(3)
A court cannot order mediation in the future beyond this clause.
“We have found no statutory or common law authority for a trial court to order mediation of prospective visitation disputes in the absence of a preliminary finding that the issues in question are proper for mediation. The trial court does have authority to order mediation in certain instances; however, a review of this authority shows that it does not contemplate the ordering of prospective mediation.” In re Marriage of Aleshire, 652 NE 2d 383 – Ill: Appellate Court, 3rd Dist. 1995
If one party begs the court for a chance to discuss getting back together, the court may force the parties to meet to discuss getting back together.
“If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference.” 750 ILCS 5/404(a)
If either party has an attorney, any meeting for “reconciliation” or otherwise will not happen if there’s no attorney present.
“The court, upon good cause shown, may prohibit conciliation or other process that requires the parties to meet and confer without counsel.” 750 ILCS 5/404
Good luck rekindling that old flame while your ex’s attorney is watching.
When Does A Mediated Agreement Become Binding In An Illinois Divorce?
At mediation, hopefully a full agreement will be reached and someone will type it up and prepare the agreement for signature.
“Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court” 750 ILCS 5/502(a)
An agreement in regards to a divorce is a contract and will be interpreted as such.
“The provisions of a [marital] settlement agreement are to be interpreted by normal contract rules.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984
Agreements that are signed indicate that the parties intend to be bound the agreement’s terms.
“A contract signed by the party…may be enforced against him.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984
“The law is clear in Illinois that where the parties reduce the agreement to writing and its signature by them is a condition precedent to its completion, no contract will exist until that is done.” Lynge v. Kunstmann, 418 NE 2d 1140 – Ill: Appellate Court, 2nd Dist. 1981
The court CANNOT change the terms of a signed divorce agreement after the agreement is deemed agreed to.
“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 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)
“[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
“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
The only exception is that the court must approve all agreements regarding child support, parenting time and parental decision-making before that portion of the agreement is binding.
“The right to make decisions regarding a child’s upbringing, including decisions regarding a child’s education, health care, and religious training, is clearly within the authority granted a custodial parent under the Act.” IN RE MARRIAGE OF DUFFY AND PILNY, 718 NE 2d 286 – Ill: Appellate Court, 2nd Dist. 1999
How To Change An Agreement After Mediation In An Illinois Divorce
After the agreement is entered into, the only way to change the agreement is to argue that the agreement was unconscionable.
“If the court finds the agreement unconscionable, it may request the parties to submit a revised agreement or upon hearing, may make orders for the disposition of property, maintenance, child support and other matters.” 750 ICLS 5/502(c)
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)
“Unconscionability can be either “procedural” or “substantive” or a combination of both…Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, and also takes into account a lack of bargaining power.” Razor v. Hyundai Motor America, 222 Ill. 2d 75, 100 (Ill. 2006)
If the agreement appears to be nonsense, then a court can declare the agreement void simply by reading the agreement.
“A contract is substantively unconscionable, and thus unenforceable, where the terms are significantly one-sided or oppressive.” In re Marriage of Iqbal, 2014 IL App (2d) 13130
A terrible deal can be so terrible that an Illinois divorce court will throw the agreement out.
Illinois divorce courts will look at the “relative economic positions immediately following the making of the agreement.” (Emphasis omitted.) In re Marriage of Nilles, 2011 IL App (2d) 100528
Any request to void the agreement must be made before the agreement is incorporated into the final judgment for dissolution of marriage.
An agreement’s “terms shall be set forth in the judgment, and the parties shall be ordered to perform under such terms” 750 ILCS 5/502(d)
Modifying An Agreement In An Illinois Divorce
If you’re having second thoughts about the agreement you entered into in your divorce, I have good news: virtually everything in an Illinois divorce is modifiable.
Maintenance and child support are modifiable. “[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a)
Parenting time is modifiable. “Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)
Your Illinois divorce court will have to agree that the modification is appropriate considering the circumstances.
There’s one thing you CANNOT modify in an Illinois divorce: division of property.
“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)
“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)
If you’ve entered into a mediated agreement and are having second thoughts or if your spouse is protesting the agreement they already entered into, contact my Chicago, Illinois family law firm to speak with an experienced Illinois family law attorney.
