Posted on May 1, 2021

Duress And Divorce In Illinois

An Illinois divorce is a series of orders that are usually agreed which finally culminate in a final set of orders: A Judgment For Dissolution Of Marriage, A Marital Settlement Agreement and perhaps an Allocation Of Parenting Time and Parental Responsibilities. These agreements are usually the result of informed negotiations between the parties, hopefully with the help of a licensed attorney experienced in Illinois divorce law and procedure.

But, sometimes one party to a divorce can have buyer’s remorse and request to undo a prior agreement. This is especially likely if there is a power imbalance between the two parties. In such cases, the party can allege that they were pressured into the agreement by the other party and, thus, the agreement should be rendered void due to duress.

In Illinois, “[d]uress has been defined as including the imposition, oppression, undue influence or the taking of undue advantage of the stress of another whereby one is deprived of the exercise of his free will.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 215 (1994)

Do You Even Need To Allege Duress To Modify An Order Or Agreement In An Illinois Divorce?

Almost every order in an Illinois divorce can be modified based on a substantial change in circumstances.

Child support and Maintenance can be changed if either party’s income goes up or down.

Child support can also change if the obligor has more children.

Parenting time can be modified if the circumstances imply that a modified parenting plan would be in the best interests of the children.

So, alleging duress to modify any order regarding support or parenting time is a foolish endeavor. A motion to modify the order is the preferable way to change an order you no longer agree with.

There is one thing you can’t modify in an Illinois divorce: property division.

“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)

So, if you want to vacate an agreed order that allocated marital and/or non-marital property, you will need to allege fraud, coercion or duress in the formation of that agreement.  

“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

Vacating An Order In An Illinois Divorce Case

After agreeing to enter into a binding order, either party can petition the court to vacate the order. But Illinois courts are never excited to vacate one of their orders

“When a party seeks to vacate a property settlement incorporated in a judgment of dissolution of marriage, all presumptions are in favor of the validity of the settlement.” In re Marriage of Gorman, 284 Ill. App. 3d 171, 180 (1996)

The statute used to vacate the order depends on how much time has passed since the entry of the order.

When 30 days or less have passed since the entry of the order, an agreement can be vacated via 735 ILCS 5/2-1301(e) or 735 ILCS 5/2-1203(a).

“The court may in its discretion…on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e)

“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)

Not much is required to vacate an order within 30 days of its entry in Illinois. You can literally say, “I changed my mind” and the court may find that sufficient.

You don’t even need to state a reason for your 1203 motion to vacate within 30 days. “Having the specifics set out in the motion itself is not essential.” Berg v. Allied Security, Inc., 737 NE 2d 160 – Ill: Supreme Court 2000

After 30 days of entry of an order, it is not so easy. You definitely need a reason to vacate after 30 days. The reason must be fully written in a sworn affidavit…and it better be good.

“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

After two years, you cannot ask the court to vacate an order…unless you had no idea the order even existed.

“[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)

The standards for vacating an order under 2-1401 are steep.

“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

Sufficient duress renders any agreement unconscionable.

“Relief under section 2-1401 may be available to set aside a settlement agreement that is unconscionable or was entered into because of duress, coercion, or fraud.” In re Marriage of Johnson, 790 NE 2d 91 – Ill: Appellate Court, 2nd Dist. 2003

Duress And Voiding An Agreement In An Illinois Divorce

“Duress has been defined as a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive him of the exercise of his free will, and it may be conceded that a contract executed under duress is voidable.” KALPLAN v. Kaplan, 182 NE 2d 706 – Ill: Supreme Court 1962

“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

“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

“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)

“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).

Duress in settlement really does happen. Usually on the eve of trial.

In James v. James, 152 NE 2d 582 – Ill: Supreme Court 1958, the supreme court found the trial court improperly refused to set aside a settlement agreement on the grounds of duress where the settlement agreement was hastily contrived several hours before a hearing, the trial court improperly instructed the wife regarding the law, and the wife’s attorney told her she would have to settle as the matter had been set for hearing.

In re Marriage of Moran, 483 NE 2d 580 – Ill: Appellate Court, 1st District, 1985, the appellate court found the trial court properly set aside a settlement agreement where the ex-wife had no input in the drafting of the settlement agreement and objected to its terms, her attorney threatened to quit on the eve of trial if she did not settle and had a financial motivation to compel to sign the settlement agreement, and the trial court repeatedly misled her about the law and erroneously told her she would not fare better if she proceeded to trial.

But there cannot just be duress. The duress has to be dishonest and bad-faith.

In re Marriage of Steichen, 517 NE 2d 645 – Ill: Appellate Court, 2nd Dist. 1987, the trial court properly declined to set aside a settlement agreement on the basis of the ex-husband’s allegations of duress. The court noted the ex-husband was not misled by his counsel or the court, was consulted regarding the settlement and participated in the settlement negotiations. Accordingly, the ex-husband failed to prove duress.

In re Marriage of McCaskey, 522 NE 2d 300 – Ill: Appellate Court, 5th Dist. 1988, the court rejected the ex-wife’s contention the settlement agreement had been procured through duress. The court noted the wife knew what assets the parties had, read the agreement, and understood the agreement. Although the wife was economically dependent upon the husband and in a vulnerable position, she had some assets and income of her own, and had previous experience maintaining her own lifestyle. The court concluded the wife was not bereft of the quality of mind necessary to the making of the agreement, and, accordingly, rejected her contention the agreement was procured through duress.

In a divorce, economic circumstances are usually not a basis for duress. After all, successful temporary motions should keep both parties fed, clothed and sheltered to the point where they are not experiencing economic duress.

“Modern caselaw has dramatically transformed the doctrine of economic duress. This is because courts have developed an increasing recognition of the law’s role in correcting inequitable or unequal exchanges between parties of disproportionate bargaining power and a greater willingness to not enforce agreements which were entered into under coercive circumstances. Today, economic duress no longer requires some unlawful act in the nature of a tort or a crime to trigger. Instead, the doctrine of economic duress may come into play upon the doing of a wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator’s pressure. Whether the party asserting economic duress had a reasonable alternative is determined by examining whether a reasonably prudent person would follow the alternative course, or whether a reasonably prudent person might submit. A reasonably prudent person may have no reasonable alternative but to succumb when the only other alternative is bankruptcy or financial ruin.” Dahlman v. Michalak 2022 IL App (1st) 211337 (citations omitted)

Finally, proving duress is the duty of 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

“The person asserting duress has the burden of proving, by clear and convincing evidence, that he was bereft of the quality of mind essential to the making of the contract.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 215 (Ill. App. Ct. 1994)

What Is Not Duress In An Illinois Divorce Case?

What feels like duress to you may just be the other party being annoying.

“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

“[D]uress is not shown by subjecting someone to annoyance and vexation and that a threat of personal embarrassment does not rise above annoyance and vexation.” Jordan v. Knafel, 823 NE 2d 1113 – Ill: Appellate Court, 1st Dist., 4th Div. 2005

Sometimes, the source of the duress is not an overbearing spouse or ex-spouse but some other party. Perhaps family members or financial pressures from outside the relationship. This duress may be real but it will not vacate an agreement in Illinois. “The general rule in contract cases holds that the validity of the contract is not affected by the fact that its execution was induced by duress practiced by a third party, where the duress was not committed with the knowledge or consent of the obligee.” Regenold v. Baby Fold, Inc., 369 NE 2d 858 – Ill: Supreme Court 1977

If you believe you only entered into an agreement during your divorce due to divorce, you must act quickly. Contact my Chicago, Illinois family law firm to determine if you can proceed with a motion to vacate your agreement due to duress, fraud or coercion.

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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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