Posted on January 20, 2024

Parol Evidence And Divorce In Illinois

95% of divorces are finalized by agreement. Those agreements are memorialized by contracts between the parties called a Marital Settlement Agreement and/or an Allocation of Parenting Time and Parental Responsibilities.

Divorce Agreements Are Contracts In Illinois

These divorce-related agreements are viewed by Illinois courts as contracts.

“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)

The whole point of an agreement is for the parties to follow the agreement. If one party fails to follow the agreement, the other party can return to the same court and ask for enforcement of the agreement.

Contracts are a moment frozen in time where the parties were in complete agreement. The courts try to look back to that moment using the contract itself to determine what the parties actually agreed to.

“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)

“If a contract is judicially interpreted, the primary goal is to discover and give effect to the intent of the parties at the time they entered into the contract.” In re Marriage of Belk, 239 Ill. App. 3d 806, 809 (Ill. App. Ct. 1992)

The first step in interpreting a contract is verifying that the language is unambiguous.

“We look to the language of the contract to determine the parties’ intent and construe the contract as a whole viewing each provision in light of the other provisions. Where the terms of an agreement are clear and unambiguous, they will be given their plain and ordinary meanings, and the parties’ intent must be determined from the language of the agreement alone.” Shapich v. CIBC BANK USA, 123 NE 3d 93 – Ill: Appellate Court, 1st Dist., 5th Div. 2018

Whether a contract’s language is ambiguous or unambiguous is determined by the judge.

“A contract is not ambiguous merely because the parties disagree as to its interpretation, nor is it necessarily unambiguous when each party insists that the language unambiguously supports its position…Rather, a term is ambiguous when it may reasonably be interpreted in more than one way.” Shapich v. CIBC BANK USA, 123 NE 3d 93 – Ill: Appellate Court, 1st Dist., 5th Div. 2018

If an Illinois divorce court deems the agreement’s language to be unambiguous “the parties’ intent must be determined from the language of the agreement alone.” State Farm Fire and Casualty Co. v. Watts Regulator Co., 2016 IL App (2d) 160275, ¶ 27.

“If the contract terms are unambiguous, the parties’ intent must be ascertained exclusively from the express language of the contract, as a matter of law.” Meyer v. Marilyn Miglin, Inc., 273 Ill. App. 3d 882, 888 (1995)

“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

“Where the facts are clear, it is the responsibility of the court to rule on the legal effect of those facts.” Stamatakis Industries, Inc. v. King, 165 Ill. App. 3d 879, 887 (Ill. App. Ct. 1987)

Ambiguous Divorce Agreements Allow For Parol Evidence In Illinois

If the court finds that the agreement (or a portion of it) is ambiguous “the parties’ intent must be ascertained by examining the facts and circumstances surrounding the formation of the agreement.” In re Marriage of Grandt, 2022 IL App (2d) 210648, ¶ 19.

Determining the parties’ intent when the written agreement is ambiguous is going to require “parol evidence.”

Parol evidence is “evidence of oral statements” Black’s Law Dictionary (11th ed. 2019)

Only when presented with an ambiguous agreement can the court look beyond the written document. Otherwise the courts must follow the “four corners rule”

The four corners rule refers to the fact that nothing should be considered outside of the “four corners” of the written document. The four corners rule is that “[a]n agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used. It is not to be changed by extrinsic evidence.” Western Illinois Oil Co. v. Thompson, 26 Ill.2d 287, 291, 186 N.E.2d 285 (1962).

The compliment/exception to the four corners rule is the parole evidence rule.

“[T]he parol evidence rule [is] that prior or collateral oral agreements are inadmissible to contradict the express terms of a written instrument.” Main Bank of Chicago v. Baker, 427 NE 2d 94 – Ill: Supreme Court 1981

“Under the parol evidence rule, oral testimony to vary the terms of a written document is not acceptable unless an ambiguity in the terms exist.” In re Marriage of Pylawka, 661 NE 2d 505 – Ill: Appellate Court, 2nd Dist. 1996

In my experience, most ambiguities in an Illinois divorce agreement are the result of an error by the drafter. To be truly ambiguous, the matter at issue is usually nonsensical and, thus, an error on the part of the drafter and was overlooked by the parties.

“It is well settled that the parol evidence rule is no bar to the admission of evidence on the question of mutual mistake [W]hen there is a mutual mistake, the parties are in actual agreement but the agreement in its written form does not express the parties’ real intent. Thus, parol evidence may be used to show the real agreement between the parties when a mistake has been made and the evidence is for the purpose of making the contract conform to the original intent of the parties.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992

Only with the finding that the agreement is ambiguous can a judge take testimony to “find out how the sausage was made.” This will be the testimony of the parties as to what their understanding of the agreement was and why they had that understanding. Such parol evidence will probably consist of proposal settlements and draft copies of the final documents.

Without the presentment of parol evidence, the court will not consider the parties intentions beyond the agreement. Courts are not allowed to guess as to what the parties intended.

“A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence[,] constitutes a denial of due process of law.” People v. Wallenberg, 24 Ill. 2d 350 (1962)

Sometimes an agreement will not look ambiguous but one party will insist that the document actually is ambiguous because of some extra, unlisted fact. Example: if one party waived maintenance because they believed they were receiving an inheritance but, in fact, they were written out of the will. This “peek” behind the agreement will probably not allow for the entry of parol evidence beyond a definition of terms (in our example, what the inheritance actually was but no other condition of the agreement).

“The rationale behind the provisional admission of parol evidence is that in some cases it may be necessary to admit such evidence to show that an agreement, although clear on its face is actually ambiguous. The provisional admission of parol evidence, however, may only be used to clarify the definition of terms in determining whether a contract is ambiguous; and where the terms are clear and unambiguous, parol evidence may not be considered to vary the meaning of those terms.” Owens v. McDermott, Will & Emery, 736 NE 2d 145 – Ill: Appellate Court, 1st Dist., 2nd Div. 2000

Integration Clauses And Parol Evidence

Divorce lawyers often make poor contract drafters. In my experience, almost no one includes an integration clause in their final divorce agreements.

An integration clause is a “contractual provision stating that the contract represents the parties final agreement and supersedes all informal understandings and oral agreements relating to the subject matter of the contract” Black’s Law Dictionary (11th ed. 2019)

An example of an integration clause is as follows: “This agreement represents and embodies all the agreements and negotiations between the parties hereto and no verbal agreements or correspondence prior to the date of execution of this Amendment shall be held to vary the provisions herein.”

If your agreement includes an integration clause, there will be no parole evidence when considering that agreement.

“[An] integration clause makes clear that the negotiations leading to the written contract are not the agreement…[W]here parties formally include an integration clause in their contract, they are explicitly manifesting their intention to protect themselves against misinterpretations which might arise from extrinsic evidence….[An integration clause means the parties] explicitly contracted that its agreement be interpreted subject to these purported flaws.” Air Safety, Inc. v. Teachers Realty Corp., 706 NE 2d 882 – Ill: Supreme Court 1999

However, if the agreement has an integration clause and still does not make any sense, the court can use parol evidence to try to make sense of the ambiguous language.

“[T]he four corners rule precludes the consideration of extrinsic evidence where a contract contains an integration clause and is facially unambiguous.” Air Safety, Inc. v. Teachers Realty Corp., 706 NE 2d 882 – Ill: Supreme Court 1999 (emphasis mine)

Illinois Divorce Courts Can Just Pick The Interpretation That Makes The Most Sense

In addition to considering parol evidence, courts can interpret ambiguities using pure logic to determine which of the two possible interpretations of the agreement is appropriate.

“[T]o the extent that a contract is susceptible of two interpretations, one of which makes it fair, customary, and such as prudent persons would naturally execute, while the other makes it inequitable, unusual, or such as reasonable persons would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred…Courts will construe a contract reasonably to avoid absurd results.” Foxfield Realty, Inc. v. Kubala, 678 NE 2d 1060 – Ill: Appellate Court, 2nd Dist. 1997

Parol Evidence Is Not Necessary If The Order Will Be Modified

Finally, vague agreements are not so cataclysmic in divorce court because almost every agreed order in a divorce case is modifiable.

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 child support is modifiable.

“An order for child support may be modified” 750 ILCS 5/510(a)

Almost all maintenance awards are 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)

Property division is NOT modifiable in an Illinois divorce. This area of your divorce settlement is where you will need parol evidence to resolve an ambiguity.

“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)

A good lawyer can read an agreement and argue for his client. A great lawyer can introduce facts not even in the agreement. A truly great lawyer, can keep the other lawyer’s facts out evidence.

If you would like to speak with an experienced Illinois divorce attorney, 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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