Posted on January 29, 2024

Motions To Clarify In An Illinois Divorce

The point of going to court is to get orders. The parties are then bound by those orders. The future is then as predictable as the orders are clear. If the instructions on the court order are not clear, each party will read the order in a way that benefits themselves…until everyone goes back to court again for a clearer order.

Getting back into court to get an order everyone can understand and follow requires that one party file a motion for clarification.

99% of court orders in an Illinois divorce case are prepared by the parties’ attorneys and then submitted to the judge for approval based on the judge’s previous oral ruling.

Motions for clarification are either the result of sloppy lawyering, poor reading comprehension and/or truly unforeseen circumstances that the court or parties could did not anticipate. A motion for clarification is an admission that something went wrong.

That’s okay. Divorce is all about admitting mistakes and moving forward in spite of those errors. A motion to clarify an order or judgment simply provides more certainty in an otherwise uncertain dynamic.

Whatever the cause, sometimes motions for clarification are allowed…and sometimes motions for clarification are not allowed in an Illinois divorce.

Motion For Clarification Before A Divorce Is Final In Illinois

A motion for clarification can happen any time before a divorce is final. All court orders are fundamentally impermanent before the finalization of an Illinois divorce.

“A temporary order entered under this Section:…may be revoked or modified before final judgment, on a showing by affidavit and upon hearing” 750 ILCS 5/501(d)(2)

Clarification is liberally allowed because the stakes are so low. All temporary orders are either incorporated into the final Judgment for Dissolution of Marriage or extinguished upon the Judgment for Dissolution of Marriage’s entry.

“A temporary order entered under this Section:…terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.” 750 ILCS 5/501(d)(3)

After a divorce is finalized, motions for clarification become problematic.

Motion For Clarification After A Divorce Is Final In Illinois

A Judgment For Dissolution and it’s incorporated documents, the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities, are a big deal. These final divorce documents govern the parties’ lives in relation to each other and their children. The parties and the children deserve to know what will happen in their future…and these documents govern their future.

An Illinois divorce court has the ability to enforce its orders after the final Judgment of Dissolution of Marriage is entered.

“The final decree of a court of record in every civil case is a conclusive adjudication after the passage of 30 days from the date of its rendition. However, a court in a divorce proceeding retains jurisdiction for the purpose of enforcing its decrees. Further, the jurisdiction invoked in the divorce proceeding will extend to a contempt proceeding as the appropriate procedure to enforce the provisions of the divorce decree.” Waggoner v. Waggoner, 398 NE 2d 5 – Ill: Supreme Court 1979

Clarification, typically, is not enforcement. Clarification is often modification by another name.

Courts will look to the substance of a motion NOT the motion’s title when determining how to analyze and rule on that motion.

[T]he caption of a motion is not controlling; the character of the pleading is determined from its content, not its label.” Sarkissian v. Chicago Bd. of Educ., 776 NE 2d 195 – Ill: Supreme Court 2002

If a motion for clarification is deemed to be a motion to modify, the standard for modifying final divorce documents is very high.

A court will find that it does not have subject jurisdiction to clarify a divorce decree because the would-be clarifier “does not seek to enforce the terms of the decree, but instead to engraft new obligations onto the decree. The effect would alter the substance of the decree.” Waggoner v. Waggoner, 398 NE 2d 5 – Ill: Supreme Court 1979

Most final divorce decrees are agreements. Courts can clarify agreements if the agreement is vague.

“Interpreting a marital settlement agreement [or other written agreement] is a matter of contract construction. As such, courts seek to give effect to the parties’ intent.  language used in the marital agreement generally is the best indication of the parties’ intent and when the terms of the agreement are unambiguous, they must be given their plain and ordinary meaning.” In re Marriage of Dundas, 355 Ill. App. 3d 423, 426 (Ill. App. Ct. 2005)

An Illinois court can “bring about that intention [by clarifying the terms of the parties’ agreement]” In re Marriage of Klose, 2023 IL App (1st) 192253

If the order is sufficiently clear, the parties do not get a chance for further clarification.

“If the language in the contract is clear and unambiguous, the judge must determine the intention of the parties “`solely from the plain language of the contract’ and may not consider extrinsic evidence outside the `four corners’ of the document itself.” Owens v. McDermott, Will & Emery, 736 NE 2d 145 – Ill: Appellate Court, 1st Dist., 2nd Div. 2000

Clarification is not based on what the parties should have agreed to or what the court should have ordered. Clarification must be based on what the parties, in fact, intended to agree to. Determining this past intent will usually require outside evidence, i.e. parol evidence, of what the parties really intended to enter.

If the order was not entered by agreement and the order is deemed to be vague. The court must first look at its own record before making any changes to an order. New information is not allowed.

“[O]rders…should be interpreted in the context of the record of proceedings and the situation which existed at the time of their rendition.” Purcell & Wardrope, Chartered v. Hertz Corp., 664 NE 2d 166 – Ill: Appellate Court, 1st Dist., 1st Div. 1996 (citations omitted)

If new information is the basis for a motion to clarify, then the motion to clarify is really a motion to reconsider or (if later than 30 days after the entry of the order), a motion to vacate.

“The purpose of a motion to reconsider is to bring to a court’s attention: (1) newly discovered evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing law. A reconsideration motion is not the place to raise a new legal theory or factual argument. Trial courts should not allow litigants to stand mute, lose a motion and then frantically gather new material to show that the court erred in its ruling. As a result, legal theories and factual arguments not previously made are subject to waiver…A motion to reconsider is not the place for the inclusion of new arguments that could have been raised earlier. Actions like that simply waste everyone’s time and money” Liceaga v. Baez 2019 IL App (1st) 181170 (citations are omitted)

A court cannot reconsider its decision unless there is significant new evidence, laws or errors…which are discovered in the last 30 days.

After 30 days, the motion can be deemed a motion to vacate…which has even stricter standards.

“To be entitled to relief under [a motion to vacate], the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the [motion to vacate].” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

Most Clarifications Are Really Modifications…And That’s Usually Okay

If a motion for clarification is, in fact, a motion for modification there are many independent statutory and common law bases to modify a final divorce decree.

Child support and maintenance are always modifiable.

“[N]early all maintenance awards are implicitly reviewable and modifiable.” In re Marriage of Watson, No. 2-21-0137, 10 (Ill. App. Ct. 2022)

Likewise, all parenting issues are 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)

All of these modifications typically require a “substantial change in circumstances.” Outside of a substantial change in circumstance, there is little to no barrier to changing a final divorce decree regarding these issues for good cause.

There is one thing that cannot be modified, the division of both marital and non-marital assets. Property division in a final divorce decree is NOT modifiable.

“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)

“[P]roperty 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 Benson, 2015 IL App (4th) 140682 (citations omitted)

If the opposing side wants to clarify something about the division of assets, insist that their motion is, in reality, an impermissible motion to modify. Worse yet, their motion is actually a motion vacate which must meet even more rigorous requirements.

If you want to clarify something about the division of assets, you had better hope that your agreement is sufficiently vague in order to revisit the intent of the parties. Also, you had better hope that the other side has not read this article.

If you would like to speak to an experienced Illinois divorce lawyer about how to finalize your divorce with crystal clear terms, contact my Chicago, Illinois family law firm today.

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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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