ATTENTION:  There is new case law since I wrote this that may effect any Chicago, Illinois out-of-court agreements.  Learn more here.

Typically, all agreements in the context of a divorce or parentage case must be entered with the court as an agreed order.  This memorializes the agreement and gives the agreement the court’s “stamp of approval”.

Oftentimes, people will come to see me with a letter that they and their spouse had both signed hoping that this signed letter is enforceable as a contract.  Sometimes it is.  Sometimes it is not.

Section 502(a) of the Illinois Marriage and Dissolution of Marriage Act provided that in order to promote amicable settlement of disputes, parties to a dissolution of marriage case may enter into an agreement for the disposition of their property, maintenance, and “support, custody and visitation of their children…Any agreement must be in writing” 750 ILCS 5/502(a).

Section 502(b) then outlines what agreements the courts will not allow without the court’s approval

  1. “The terms of the agreement, except those providing for the support and parental responsibility allocation of children.”
  2.  And/or “the agreement is unconscionable.”

So, the big thing you cannot agree to without the approval of the court is child support.  The modification of a child support obligation is a judicial function, administered by the court as a matter of discretion. Blisset, 123 Ill. 2d at 167-68. Private agreements to modify child support without court approval are unenforceable. Id. Parents may create an enforceable agreement for the modification of child support by petitioning the court for support modification and establishing that their agreement is in the best interests of the children. Id. at 168.

This often becomes an issue when the parties come to subsequent agreements about who will declare the children on their taxes.  The allocation of the tax exemption is an element of child support, subject to the trial court’s discretion. In re Marriage of Fowler, 197 Ill. App. 3d 95, 100 (1989). It is within the authority of the trial court to allocate the dependency tax exemption to a noncustodial spouse and to order the custodial parent to sign a declaration for Internal Revenue Service (IRS) purposes that he or she will not claim the exemption. In re Marriage of Rogliano, 198 Ill. App. 3d 404, 415 (1990).  Therefore, you need the court’s prior approval if you want to enforce an agreement regarding declaring the children on your taxes.

Additionally, you cannot agree to something that is so patently unfair that the court considers it unconscionable.

The biggest “out of court” agreements that I often encounter often don’t look like agreements at all.  They are memorializations of a gift.  A note that says, “To My Darling Wife, Enjoy this jewelry” may indeed turn a marital property, jewelry purchased with joint funds into the non-marital property of the receiver.

If you cannot enforce an agreement between you and your partner in divorce court, you can always turn to the civil courts who will treat your agreement like an agreement between two strangers.  The standard for agreements in Illinois civil courts are much looser than an agreement in domestic relations (a handshake agreement is sufficient, for example).

The defense to a civil suit regarding enforcement of an agreement is to file a motion to remove the civil suit to the domestic relations court if a petition for dissolution of marriage has indeed been filed.

If the parties had an agreement outside of court and were never married, their only avenue for enforcing agreements shall be the civil courts.  In this era of couples living together but not marrying, this becomes an awkward and impracticable route to solving problems. In this situation a contract litigation attorney is required in lieu of a family law attorney.

The biggest factor in an issue as “fuzzy” as this is the judge.  Some judges are open to practical out-of-court agreements and others are much more formal.  I practice exclusively in Chicago’s Daley Center and am familiar with all 20+ judges who hear family law matters.  I often will exercise my right to substitute the judge (ask for a new judge) based on my experience with the judge on the particular legal issue at hand.

Contact my Chicago, Illinois office to see what “agreements” you have or don’t have in your marriage and how they will play out in your pending divorce.

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