In the course of a relationship, people make a lot of promises. When those promises go consistently unfulfilled, the disappointed party files for divorce and all promises are cast to the wind (including “until death do you part”)
Still, the broken promises sting remains. Is there anything that can be done to enforce a spouse or former spouse’s promises?
Promises Made Before Marriage
There is only one binding promise before marriage in Illinois: A Prenuptial Agreement.
“The terms of the agreement, except those providing for the support and parental responsibility allocation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the agreement is unconscionable.” 750 ILCS 5/502(b)
Prenuptial agreements (also known as premarital agreements) must be in writing and signed by both parties.
“A premarital [also known as a prenuptial] agreement must be in writing and signed by both parties.” 750 ILCS 10/3
An unwritten, unagreed, unsigned promise means nothing before marriage.
Likewise, an unwritten promise cannot affect a written prenuptial agreement. “Illinois law prohibits the parties’ oral postnuptial agreement regarding [matters addressed in the]…superseding the [prenuptial] Agreement.” In re Marriage of Amyette, No. 3-20-0195, 19 (Ill. App. Ct. 2023)
Written postnuptial agreements are the best way to enforce a promise after the marriage and before the divorce. Other promises during a marriage…are problematic and probably unenforceable.
Promises Made Before An Illinois Divorce Is Filed
When one party makes a promise to their spouse and does not follow through on that promise, there may be cause for a common law fraud action…but probably not.
“The elements of common-law fraud are (1) a false statement of material fact; (2) defendant’s knowledge that the statement was false; (3) defendant’s intent that the statement induce plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from reliance on the statement.” Wernikoff v. Health Care, 877 N.E.2d 11, 16 (Ill. App. Ct. 2007)
Spouses make promises that satisfy the 4 requirements of Illinois common-law fraud all the time.
People say things that are not true that they know are not true in order to make their spouse do something. The spouse then does that thing and suffers because of the reliance on the promise.
“Fraudulent inducement is a form of common-law fraud.” Lagen v. Balcor Co., 274 Ill.App.3d 11, 17, 210 Ill. Dec. 773, 653 N.E.2d 968 (1995).
There is, however, a big wrinkle in pursuing fraud against a spouse: empty promises are NOT fraud under Illinois law.
“The first element [of Illinois common-law fraud] includes three requirements: (1) the defendant must make a misrepresentation; (2) it must involve a fact; and (3) the misrepresentation must be material.” Wernikoff v. Health Care, 877 N.E.2d 11, 16 (Ill. App. Ct. 2007)
A spouse making false promises will tell their spouse what they are GOING TO DO…NOW what they have ALREADY DONE.
“[A] misrepresentation about events to occur in the future cannot constitute the tort of fraud. The representation must be to an existing or past fact. A failure to perform a promise to do some act in the future cannot be the subject of an action for fraud” Gold v. Vasileff, 160 Ill. App. 3d 125, 128 (Ill. App. Ct. 1987) (citations omitted)
“Even a false promise of future conduct with no current intent to fulfill that promise will not constitute fraud.” People ex Rel. Peters v. Murphy-Knight, 248 Ill. App. 3d 382, 389 (Ill. App. Ct. 1993)
“[M]isrepresentations of intention to perform future conduct, even if made without a present intention to perform, do not generally constitute fraud.” HPI Health Care Services, Inc. v. Mt. Vernon Hosp., Inc., 131 Ill. 2d 145, 168 (1989
The fraudulent statement must be about something that allegedly currently exists.
A husband could say to his wife, “I’m going to make a million dollars one day and treat you like a queen,” but that statement would not be fraud because the statement refers to facts in the future. Facts that do not, yet, exist.
In contrast, a husband could say “If you work at my father’s restaurant for free you will eventually own the restaurant” and that could be fraud. The restaurant exists but the husband has no authority to transfer the restaurant to the wife.
“[S]tatements at issue here must be considered representations of existing fact and thus actionable as fraud.” People ex Rel. Peters v. Murphy-Knight, 248 Ill. App. 3d 382, 389 (Ill. App. Ct. 1993)
A broken promise is not fraud. A broken promise is a description of an imaginary world. A false description of the current world, however, is fraud.
“[T]he alleged misrepresentations in the instant case concern future intentions or conduct on the part of the defendant. Because plaintiff has alleged broken promises by the defendant rather than material misstatements of fact, we find the original complaint failed to allege material misrepresentation of preexisting or present facts. Therefore, the original complaint failed to state a cause of action for fraud” Ault v. C.C. Services, Inc., 232 Ill. App. 3d 269, 271 (Ill. App. Ct. 1992)
Most people who file for divorce when their spouse makes constant false promises are resigned to the fact that the person is inherently unreliable and cannot be held to account for any of their past statements.
The exception to false promises being deemed harmless is when the false promise is part of a larger scheme.
“[A] promise to perform an act in the future by one who intends not to perform is not actionable fraud, unless the false promise of future performance is part of a scheme or device to defraud another of her property.” Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 940 (1997)
Dopey spouses who do not live up to their promises are very rarely hatching a clever scheme to defraud.
False Promises During An Illinois Divorce
Once the divorce process has started why would you accept any non-written promise from your spouse?
Every agreement between divorcing parties should be in writing and signed by both parties and memorialized as an order with the court.
“An agreed order, also termed a consent order or a consent decree [citation], is not an adjudication of the parties’ rights but, rather, a record of their private, contractual agreement [citation]. Once such an order has been entered, it is generally binding on the parties and cannot be amended or varied without the consent of each party.” In re Marriage of Rolseth, 389 Ill. App. 3d 969, 971 (2009).
Anything else communicated by one side to the other is merely the other side’s opinion and is therefore not fraud.
“Generally, an expression of opinion will not support an action for fraud.” INRMA v. Human Service Center, 884 NE 2d 700 – Ill: Appellate Court, 4th Dist. 2008
“[A]ny representations to plaintiff by her attorneys about whether property was marital or nonmarital was a legal opinion, not a fact, and thus was not actionable as fraud” Merrilees v. Merrilees, 998 NE 2d 147 – Ill: Appellate Court, 1st Dist., 6th Div. 2013
The only representation that must be honest for fear of future fraud claims is discovery.
In a divorce, each party is allowed to ask the other party for almost any documents they deem relevant.
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Ill. Sup. Ct. R. 201
“To prove fraud, the complainant must show that the other party falsely stated a material fact or concealed a material fact that he had a duty to disclose; the fact was intentionally misstated or concealed to induce the complainant to act; and that the complainant detrimentally relied upon the misstatement or the nonexistence of the fact. The complainant bears the burden of proving fraud by clear and convincing evidence.” In Re Marriage of Travlos, 218 Ill. App. 3d at 1037, 161 Ill.Dec. 621, 578 N.E.2d 1267.
Failure to disclose discovery is not an automatic basis for In order to vacate a divorce judgment based on fraudulent failure to disclose discovery “the [missing] evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160. That is to say, if there was an alternate reasonable way to discovery that the missing discovery existed, the allegedly defrauded party should have investigated that asset’s existence.
The only binding promises made during an Illinois divorce are temporary orders which all become extinguished once the final divorce decree and the incorporated documents are entered by an Illinois divorce court.
“[T]he temporary order has fulfilled its purpose and is superseded by the final—or permanent—order….Once the trial court enters the final order, an assumption arises that the court has thereby adjusted for any inequity in its temporary orders.” In re Marriage of Fields, 283 Ill. App. 3d 894, 901 (1996).
False Promises After An Illinois Divorce
Once the final divorce decree and its incorporated documents (the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities) are the law of the land.
The Marital Settlement Agreement probably includes a waiver and release clause that waives the right to pursue any claims for any other promises beyond the four corners of the agreement.
No promises can be made that would modify those final orders unless they are written, agreed and memorialized in a subsequent order.
“[T]he general rule [is] that a settlement agreement may not be altered as to material terms without the consent of both parties, nor may a court on its own motion or accord alter such an agreed order.” EXCHANGE NAT’L BANK v. Sampson, 542 NE 2d 1303 – Ill: Appellate Court, 2nd Dist. 1989 (citations ommited)
The only exception is a claim of equitable estoppel.
“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. The party asserting a claim of estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the facts, and such reliance have been reasonable.” In re Marriage of Smith, 806 N.E.2d 727, 730-31 (Ill. App. Ct. 2004)
Does this not sound similar “in kind” to the common-law fraud that I described above?
The difference is that equitable estoppel means the person actually lived up to their promise and did what they said. Therefore, you must now live up to your end of the bargain.
When you are in an intimate relationship with someone who consistently makes false promises to you, they have zero respect for you. I am reminded of Robert DeNiro’s character in Scorcese’s first movie, “Mean Streets,” when DeNiro berates his own loan shark.
“You know Michael [the loan shark], you make me laugh. You see, I borrow money all over this neighborhood, left and right from everybody, I never pay them back. So, I can’t borrow no money from nobody no more, right? So who would that leave me to borrow money from but you? I borrow money from you, because you’re the only jerk-off around here who I can borrow money from without payin’ back, right?”
To stop being a sucker for broken promises, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.