Posted on January 7, 2023

Reservation Of Rights In An Illinois Marital Settlement Agreement

A Marital Settlement Agreement contains your entire financial life and financial future as of the moment you sign the Marital Settlement Agreement. As you review your proposed Marital Settlement Agreement, your divorce lawyer may skim over some sections while mumbling “this is all boilerplate.”

Boilerplate is “ready-made or all-purpose language that will fit in a variety of documents. Fixed or standardized language that the proposing party often views as relatively non-negotiable.” Black’s Law Dictionary (11th ed. 2019)

Just because some language is non-negotiable “boilerplate” does not mean you shouldn’t understand it.

Perhaps the first boilerplate language you will encounter on a Marital Settlement Agreement will be titled “Reservation of Rights” and will usually read as follows:

“This agreement is not one to obtain or stimulate a Judgment for Dissolution of Marriage. Except as otherwise provided herein, each party reserves the right to prosecute or defend any action now pending or which may hereafter be brought for relief under the Illinois Marriage and Dissolution of Marriage Act”

What the heck does that even mean?

The reservation of rights language means that the Marital Settlement Agreement only resolves the issues in the Marital Settlement Agreement. More specifically, the Marital Settlement Agreement does not grant the actual divorce. A Judgment for Dissolution Of Marriage grants the divorce. The Marital Settlement Agreement merely governs how the parties are to act with respect to the outlined financial issues as dictated by the Marital Settlement Agreement.

People in Illinois can only get divorced after resolving their obligations to each other.

“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” 750 ILCS 5/401(b)

Therefore, the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities must be complete and agreed to before an Illinois court will actually divorce a couple via a Judgment of Dissolution of Marriage.

The Marital Settlement Agreement and the Allocation of Parenting Time And Parental Responsibilities then become part of the Judgment of Dissolution of Marriage via incorporation upon the entry of the Judgment of Dissolution of Marriage.

“When an agreement by divorcing spouses concerning property rights is approved by the court and incorporated into the divorce decree, it becomes merged in the decree and the rights of the parties thereafter rest upon the decree.”In re Estate of Coleman, 395 NE 2d 1209 – Ill: Appellate Court, 2nd Dist. 1979

The reservation of rights memorializes that the parties can still use the Illinois Dissolution of Marriage Act to fight for all of their rights as enumerated therein…despite the fact that the Marital Settlement Agreement is an agreement associated with the finalization of an Illinois divorce.

What Rights Are Reserved By A Reservation of Rights Clause In An Illinois Marital Settlement Agreement?

Only the “reserved rights” are reserved. Once the Marital Settlement Agreement is signed, the Marital Settlement Agreement is binding.

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children” 750 ILCS 5/502(a)

“It is well settled in Illinois that the law favors the amicable settlement of property rights in cases of marital dissolution.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825 (Ill. App. Ct. 1990)

“[S]ettlement agreements are binding absent a finding of unconscionability.” In re Marriage of Stoker, 2021 IL App (5th) 200301

It does not matter if the Judgment of Dissolution of Marriage incorporating the Marital Settlement Agreement has been entered as an order. The Marital Settlement Agreement is binding as of its signing.

“A court should not set aside a settlement agreement merely because one party has second thoughts.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (Ill. App. Ct. 1994)

“Property settlement agreements, which have been assented to by both parties, may not be cancelled solely because one party withdraws his assent prior to the entry of the judgment; a settlement agreement should not be disregarded simply because one party has second thoughts” In re Marriage of Stoker, 2021 IL App (5th) 200301

Then what rights are reserved exactly by the reservation of rights?

Any matter that is not mandated in the Marital Settlement Agreement and allowed by the Illinois Marriage and Dissolution of Marriage Act is reserved for future action by law and by the “reservation of rights” clause.

“The power to make modifications…under the Divorce Act is not exhausted by the entry of the original decree fixing [financial obligations], but it is a continuing power to be exercised in accordance with the needs and circumstances of the parties, and it needs no reservation of the power in the divorce decree to permit its exercise” Larson v. Larson, 157 NE 2d 689 – Ill: Appellate Court, 2nd Dist., 2nd Div. 1959

Most ongoing obligations in a Marital Settlement Agreement are modifiable.

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification.” 750 ILCS 5/510(a)

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

Child support cannot be contracted for in the future. Child support will always be reserved for the purposes of modification in Illinois.

Maintenance, however, may be non-modifiable by the explicit agreement of the parties to waive or make a maintenance amount or duration non-modifiable.

“The parties may provide that maintenance is non-modifiable in amount, duration, or both. If the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances….The judgment may expressly preclude or limit modification of other terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f)

“[T]he maintenance provision [of the Marital Settlement Agreement] allowed the parties to make maintenance as a whole nonmodifiable or to select a single aspect of the obligation to make nonmodifiable. If the parties did not agree that maintenance was nonmodifiable, either in whole or in part, then maintenance was modifiable upon a substantial change of circumstances” In re Marriage of Dynako, 2020 IL App (1st) 192116

The distribution of assets as outlined in a Marital Settlement Agreement are definitely NOT modifiable.

“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)

What If The Marital Settlement Agreement Has No Reservation Of Rights Clause?

It probably doesn’t matter if a Marital Settlement Agreement has a Reservation of Rights clause or not.

The marital settlement agreement is binding as a contract. Contract terms that are not explicit will be deemed unenforceable.

“The essential terms of a contract must be definite and certain in order for a contract to be enforceable.” Midland Hotel Corp. v. RH DONNELLEY CORP., 515 NE 2d 61 – Ill: Supreme Court 1987

Anyone who has been married will know that there are unsaid agreements throughout the relationship. After a divorce, that is definitely not the case. Final divorce papers are the only binding agreement between two former spouses.

The reservation of rights clause is just good contract drafting. The reservation of rights clause reminds the parties that “we are only agreeing to what we are explicitly agreeing to.”

It never hurts to put more and clearer language into a contract.

“If the parties had been more careful in drafting their agreement, many of the issues presented in this case would have been resolved by the language of the agreement.” In re Marriage of Golden, 831 NE 2d 1177 – Ill: Appellate Court, 2nd Dist. 2005

If you would like to have truly understand your final divorce agreement, contact my Chicago, Illinois family law firm today for a free consultation with an experienced Illinois divorce attorney.

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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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