When people lament their former spouses’ failings a polite way to say it is “he/she was impossible.” Be careful…the former spouse just might agree and claim that further compliance with the final divorce decree is impossible. The “impossible” ex-spouse will argue that they are, therefore, excused from following the agreement and/or orders.
99% of final divorce judgments are resolved by agreement in whole or in part. An agreement which is incorporated into a Judgment for Dissolution of Marriage will only be reviewed pursuant to contract 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)
The clever divorcee will then use contract law doctrines to avoid obligations as required by their marital settlement agreement.
One such contract law doctrine exempting performance of a party to the contract is the impossibility doctrine.
The impossibility of performance doctrine is “the principle that a party may be released from a contract on the ground that uncontrollable circumstances have rendered performance impossible.” Black’s Law Dictionary (11th ed. 2019)
“The doctrine of legal impossibility, or impossible performance, excuses performance of a contract only when performance is rendered objectively impossible either because the subject matter is destroyed or by operation of law.” Innovative Modular Solutions v. Hazel Crest School Dist. 152.5, 2012 IL 112052 (citations omitted)
For example, transferring a marital property in a divorce could be deemed impossible if the property was destroyed in a fire or a flood.
The impossibility doctrine leaves lots of room for mischief. A bitter spouse could leave the door open, let a dog run away and then claim that it’s impossible to turn over the dog.
Most former spouses will not do something so obviously egregious and then hide behind the impossibility doctrine. They’ll simply say “I cannot work anymore. Therefore, I can’t fulfill my obligations. Sorry, it is impossible.”
The impossibility doctrine cannot be used for any circumstance which was foreseeable at the time the parties entered into the agreement.
For example, getting older is foreseeable. Becoming disabled is probably not foreseeable.
“The party advancing the doctrine must show that the events or circumstances which he claims rendered his performance impossible were not reasonably foreseeable at the time of contracting.” YPI 180 N. LaSalle Owner, 403 Ill. App. 3d at 6-7 (citations omitted)
The question which determines foreseeability as a bar to impossibility is, “could this situation which rendered the performance impossible have been included in the agreement?”
“Where a contingency that causes the impossibility might have been anticipated or guarded against in the contract, it must be provided for by the terms of the contract or else impossibility does not excuse performance.” YPI 180 N. LaSalle Owner, 403 Ill. App. 3d at 6-7
Impossibility is not a defense to performance if the party claiming impossibility created the situation rendering performance impossible.
“The doctrine of impossibility of performance requires that the circumstances creating the impossibility were not and could not have been anticipated by the parties, that the party asserting the doctrine did not contribute to the circumstances, and that the party demonstrate that it has tried all practical alternatives available to permit performance.” Illinois–American Water Co. v. City of Peoria, 332 Ill. App. 3d 1098, 1106 (2002)
The accusation “You should have thought of this” and the defense “I just cannot do it” can exist simultaneously. In this scenario, an Illinois court can fashion some other alternative remedy.
“[I]mpossibility is unavailable where there are practical alternatives available to permit performance.” Ulanov v. Ulanov, 2020 IL App (1st) 182501-U
For example, in Ulanov v. Ulanov, the husband’s health was so poor that it was impossible to contract for a life insurance policy as agreed in the marital settlement agreement. So, the court simply ordered that “Mark would deposit $250,000 into an account titled ‘Mark T. Ulanov and Irene Ulanov, as joint tenants with right of survivorship, subject to court order’” in lieu of securing a $ 250,000 life insurance policy.
The impossibility doctrine is only necessary for property division clauses because those contract clauses cannot be modified.
“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)
“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)
“Property rights created by a judgment of dissolution become vested when the judgment is final, and a trial court lacks general jurisdiction to modify an order affecting these rights.” In re Marriage of Hubbard, 215 Ill. App. 3d 113, 116 (1991)
If a clause to an agreement cannot be modified, performance can only be excused by a valid defense like the impossibility doctrine.
Everything else in an Illinois divorce can be modified. Therefore, no defense doctrines are necessary. All you need is a “substantial change in circumstances” to modify a party’s duties under an Illinois divorce agreement.
Maintenance (formerly known as alimony) can be modified in Illinois.
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
“An order for child support may be modified as follows:
(1) upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a)
“[T}he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
Despite all of this talk about impossibility…almost nothing is impossible with the help of a good lawyer. Contact my Chicago, Illinois family law firm to learn more about what you can and cannot do after your Illinois divorce is finalized.