Posted on April 27, 2024

False Promises In An Illinois Divorce

People who get married make a lot of promises beyond “to love, honor and obey.” At the end of a marriage, people may be held accountable for these promises in a divorce court.

Normally, Promises Don’t Matter In An Illinois Divorce

The relief granted by the Illinois Marriage and Dissolution of Marriage Act is so broad and flexible that there’s usually no need to outline a divorcing party’s promise and failure to fulfill that promise.

In fact, the Illinois Marriage and Dissolution of Marriage Act seems to explicitly state that it does not consider bad behavior such as empty promises when awarding assets or support.

Illinois divorce judges “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)(emphasis mine)

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)

Because of this admonition against considering false promises, a petition for dissolution of marriage should also include a count detailing the false promise.

Divorce lawyers are creatures of habit. We hardly ever include additional claims such as Intentional Infliction of Emotional Distress or Promissory Estoppel…but we should.

Promissory Estoppel In An Illinois Divorce

Promissory estoppel is “an equitable device invoked to prevent a person from being injured by a change in position made in reasonable reliance on another’s conduct.” Kulins v. Malco, a Microdot Co., 121 Ill. App. 3d 520, 527 (1984).

“To establish a claim based on promissory estoppel, plaintiff must allege and prove that (1) defendants made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff’s reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.” Quake Const. v. American Airlines, 565 NE 2d 990 – Ill: Supreme Court 1990

Promises between married couples rarely written. A written promise is not necessary to enforce promissory estoppel.

 “Plaintiff may recover on a theory of promissory estoppel despite the absence of a contract.” Quake Const. v. American Airlines, 565 NE 2d 990 – Ill: Supreme Court 1990 (citations omitted)

An unwritten promise is certainly more ambiguous than a written promise.

Furthermore, promises between married couples are tinged with love and romance, i.e. “I’ll buy you a yacht one day.” Therefore, those promises may not be sufficiently explicit to be considered “unambiguous.”

“Unambiguous” in the context of promissory estoppel doesn’t mean “clear”. “Unambiguous” means “we definitely thought the promise was the same thing.”

“[T]he promise essential to a claim of promissory estoppel need not be expressed, only unambiguous. In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference….The intention of the parties must in some way be communicated, since a person’s intention can be ascertained by another only by means of outward expressions such as words and acts.” BK COMP. NET. CORP. v. CONT. ILL. NAT’L BK, 442 NE 2d 586 – Ill: Appellate Court, 1st Dist. 1982

Proving that the promisor and the promise had the same “unambiguous promise” in their minds can be done by proving the second prong of the test: “reliance on such a promise.”

“Plaintiff’s reliance must be reasonable and justifiable.” Quake Const. v. American Airlines, 565 NE 2d 990 – Ill: Supreme Court 1990

Reasonable reliance must be considered “in light of all of the facts which plaintiffs had actual knowledge of as well as those which they might have discovered by the exercise of ordinary prudence.” Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 167 (Ill. App. Ct. 1986)

A poor man promising to buy his wife a yacht cannot induce “reasonable reliance.”

Likewise, a promisee has the duty to investigate if the promise is real. If you’re married to someone, you should know your spouse’s actual capacity to live up to that promise (ex: if they had enough money for a yacht).

“[A] party is not justified in relying on representations made when he [or she] has ample opportunity to ascertain the truth of the representations before he [or she] acts.” Kopley Group V., L.P, 376 Ill. App. 3d at 1019 (quoting Schmidt v. Landfield, 20 Ill. 2d 89, 94 (1960)

Most proofs of reliance on a promise will show that the promise relied on the promise to their detriment. Ex: “He promised me a yacht so I spent a thousand dollars on sailing lessons.”

Equitable Estoppel In An Illinois Divorce

The detrimental reliance of the promisee creates an additional equitable estoppel claim.

“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.” In re Marriage of Smith, 806 N.E.2d 727, 730 (Ill. App. Ct. 2004)

“Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact.” 28 Am Jur 2d Estoppel and Waiver § 34

An overt act of reliance proves there was a sufficient intent necessary for promissory estoppel and may prove be sufficient past or present reliance for an equitable estoppel claim.

There has to be evidence of the reliance on the promise.

“A finding that the doctrine of equitable estoppel applies as a defense must be based on clear and convincing evidence and” In re Marriage of Duerr, 250 Ill. App. 3d 232, 237 (Ill. App. Ct. 1993)

No evidence of reliance is a tacit admission that the promise was acknowledged as an empty promise.

“[S]ilence…[is] not the kind of conduct that in itself creates an equitable estoppel.” In re Marriage of Duerr, 250 Ill. App. 3d 232, 236 (Ill. App. Ct. 1993)

If there is not sufficient reliance, perhaps a promise can be interpreted as a binding contract instead.

Promises Can Be Contracts

In addition to claiming reliance on a promise, a promise can be found to be a binding contract.

Promises often turn into contracts if the promisee accepts the promise as valid. If the promise is a contract, the promise can be enforced.

“The basic requirements of a contract are an offer, an acceptance, and consideration.  Consideration is defined as a bargained-for exchange of promises or performance.  An act or promise that benefits one party or is a detriment to the other party is consideration sufficient to support a contract.” In re Marriage of Tabassum and Younis, 881 NE 2d 396 – Ill: Appellate Court, 2nd Dist. 2007 (emphasis mine)

The promise clearly benefited the aggrieved party. Otherwise, why else would the promisor have made the promise?

Again, oral promises can create oral contracts. Oral contracts are binding.

“Settlements based on oral agreements may be enforced as long as there is clearly an offer and an acceptance and a meeting of the minds as to the terms of the agreement.” Johnson v. Hermanson, 221 Ill. App. 3d 582, 584 (Ill. App. Ct. 1991)

Written promises do happen during marriages. They are called “postnuptial agreements.”

Whether an oral promise was just discussion in advance of an eventual written postnuptial agreement depends on the facts.

“Under Illinois law, courts may look at the following factors to determine whether the parties intended to reduce their agreement to writing: whether the type of agreement involved is one usually put into writing, whether the agreement contains many or few details, whether the agreement involves a large or small amount of money, whether the agreement requires formal writing for the full expression of the covenants, and whether the negotiations indicated that a formal written document was contemplated at the completion of the negotiations.” TINDALL CORPORATION v. MONDELEZ INTERNATIONAL, INC., Dist. Court, ND Illinois 2017 (citations omitted)

A party could NOT promise another party a house which requires a writing under the statute of frauds.

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith” 750 ILCS 80/2

Similarly, a party could not enforce an unwritten promise was to be performed more than a year after the promise.

“[N]o action shall be brought…upon any agreement that is not to be performed within the space of one year from the making thereof” 740 ILCS 80/1

Likewise, a promise of a large amount of money without a writing would probably be deemed moot without a corroborating writing.

Oral agreements are simply too difficult to prove without corroborating reliance.

“[T]he burden rests on the party asserting the agreement to establish its existence by clear and convincing evidence.  For the agreement to be enforceable, the material terms must be definite and certain, so that the trial court can determine from the terms and provisions, under the rules of construction and applicable principles of equity, what the parties have agreed to do.” In re Marriage of Stoker, No. 5-20-0301, 20 (Ill. App. Ct. 2021) (citations omitted)

Contracts between couples are viewed with suspicion. Anyone who has been in a relationship knows there are a thousand small rules that the parties tacitly agree to from who takes out the garbage to how much each person saves in their retirement accounts. Clarifying, much less enforcing, all these small agreements would be impossible.

Promissory contracts between couples outside of marriage are void because they look like payments for sex.

 “An agreement in consideration of future illicit cohabitation between the plaintiffs is void…A bargain in whole or in part for or in consideration of illicit sexual intercourse or of a promise thereof is illegal.” Hewitt v. Hewitt, 394 NE 2d 1204 – Ill: Supreme Court 1979

Do void promises outside of marriage mean that promises inside a marriage are valid? Or are promises between couples consecrated by marriage also void? They’re certainly suspect.

Furthermore, agreements between parents regarding children are not binding in themselves. Agreements about children must be approved by the court as being in the best interests of the children.

“The terms of [an] agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court” 750 ILCS 5/502(b) (emphasis mine)

“[A] parent may not by contract defeat his legal duties owed to his children, [but] he may contract to do more than the law requires of him.” Gaddis v. Gaddis, 314 NE 2d 627 – Ill: Appellate Court, 5th Dist. 1974

Defense To Claims Of Promises In An Illinois Divorce

If a promise is able to clearly prove a valid promise existed via reliance or a clear agreement, all is not lost. If the promise really wanted that promise fulfilled, they should have insisted on it immediately.

Most marriages fall apart well after the promises have been broken. In the context of a marriage, the period of time between the promise being broken and the enforcement of the promise is usually years.

This period of inaction in the face of a clear promise may constitute a waiver defense.

“Waiver is defined as the intentional relinquishment of a known right.” Ryder v. Bank of Hickory Hills, 585 NE 2d 46 – Ill: Supreme Court 1991

A spouse who got a false promise rarely says, “Your promise was terrible but I love you anyways and don’t expect you to ever live up to your word.”  Instead, they just press on through their terrible marriage.

“Waiver may be made by an express agreement or it may be implied from the conduct of the party who is alleged to have waived a right.” Ryder v. Bank of Hickory Hills, 585 NE 2d 46 – Ill: Supreme Court 1991

Continuing to live with a spouse after the broken promise is likely an implied waiver.

“An implied waiver may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his conduct is inconsistent with any other intention than to waive it.” Kane v. American National Bank & Trust Co., 316 NE 2d 177 – Ill: Appellate Court, 2nd Dist. 1974

As judges like to remind divorce litigants, “you married him.” In the case of waiver, you also stayed married to him.

If your spouse made a false promise to you and you want them to live up to that promise in your Illinois divorce, contact my Chicago, Illinois family law firm to speak with an experienced Illinois 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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