Posted on July 13, 2023

Scrivener’s Errors In An Illinois Divorce Order Or Agreement

A final divorce decree, a Marital Settlement Agreement, an Allocation of Parenting Time and Parental Responsibilities, or a simple temporary order all need to be exactly right for the parties to do justice to each other.

This is why people hire lawyers for their divorce…so everything is done properly.

However, even lawyers make mistakes. Some mistakes are serious and some mistakes are easily corrected.

A typo that everyone agrees is a typo is the simplest and most correctable mistake. Of course, lawyers have to come up with a fancy old-timey term to describe a typo: a “scrivener’s error.”

“A “scrivener” is “A writer; esp., a professional drafter of contracts or other documents.” Black’s Law Dictionary 1349 (7th ed.1999). A “scrivener’s error” is defined as a “clerical error”:

“clerical error. An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” Schaffner v. 514 WEST GRANT PLACE CONDO., ASS’N, 756 NE 2d 854 – Ill: Appellate Court, 1st Dist., 3rd Div. 2001 (quoting Black’s Legal Dictionary)

Most documents entered by a divorce court are agreements. Agreements are enforceable as written.

“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)

Those agreements and all the language contained within the agreement will stand until someone corrects the agreement for not being fair.

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

When the error in an agreement is just a typo, you do not need the court to make the extreme finding of unconscionability. A scrivener’s error in a written agreement can be easily fixed by the court with jurisdiction over the matter.

“The power and authority of a court of equity to correct the mistakes of a scrivener incorporated into a contract, deed, or other instrument is…well known.” Handelsman v. Handelsman, 852 NE 2d 862 – Ill: Appellate Court, 2nd Dist. 2006 (quoting Reinberg v. Heiby, 88 NE 2d 848 – 1949

Changing an existing contract is called “reformation.”

“For a court to reform an instrument on the ground of mistake, the mistake must be of fact and not of law, mutual and common to both parties, and in existence at the time of the execution of the instrument, showing that at such time the parties intended to say a certain thing and, by a mistake, expressed another.” BLAKELY ESTATE v. FED. KEMPER LIFE ASSUR, 640 NE 2d 961 – Ill: Appellate Court, 2nd Dist. 1994 (quotes omitted)

Determining whether a written mistake meets the easily-fixable standard of a scrivener’s error depends on the mistake. Obvious errors are scrivener’s errors

A missing decimal point in a document, for example, is a scrivener’s error. Metropolitan Life Ins. Co. v. Henriksen, 126 NE 2d 736 – Ill: Appellate Court, 1st Dist., 3rd Div. 1955

If you have to explain why the error is an error using documents that are not the actual agreement…the mistake is probably not a scrivener’s error.

“[S]criveners’ errors [are] those evidenced in the writing that can be proven without parol evidence.” Westgate v. Philip Richardson Co., Inc., 621 SE 2d 114 – Va: Supreme Court 2005

If the “error was not evidenced in the writing and cannot be proven now without parol evidence [it is probably not a scrivener’s error] Furthermore, [if the error] was continuous, ongoing, and repeated [it is more likely to be determined to be not a mistake]” BLAKELY ESTATE v. FED. KEMPER LIFE ASSUR, 640 NE 2d 961 – Ill: Appellate Court, 2nd Dist. 1994

Scrivener’s errors should be “manifestly incongruous [with the rest of the agreement].” Metropolitan Life Ins. Co. v. Henriksen, 126 NE 2d 736 – Ill: Appellate Court, 1st Dist., 3rd Div. 1955

In contrast to an agreement, orders are written by the judge or written by a lawyer who sends then sends the order to the judge for approval.

Understandably, judges are quicker to forgive their own errors. If an order has a scrivener’s error in it, the order can be updated going back to the entry of the original order.

“At any time…a court may modify its judgment nunc pro tunc to correct a clerical error or matter of form so that the record conforms to the judgment actually rendered by the court.” Beck v. Stepp, 579 NE 2d 824 – Ill: Supreme Court 1991

The only problem with amending an order nunc pro tunc is ensuring that the error is clerical not judicial.

“Nunc pro tunc orders may be entered to correct clerical errors, but such an order cannot be used to correct judicial errors.” Krilich v. Plencer, 713 NE 2d 231 – Ill: Appellate Court, 2nd Dist. 1999

If the judge (or the parties) meant to put that error in the document, the language is going to stay as written no matter how wrong or dumb the error is.

“The distinction between a clerical error and a judicial one does not depend upon the source of the error, but rather, upon whether it was the deliberate result of judicial reasoning and determination” First Bank of Oak Park v. Rezek, 535 NE 2d 20 – Ill: Appellate Court, 1st Dist. 1989

If the error is deemed to be a judicial error and not a clerical error, the judicial error must be brought to the court’s attention via a motion to reconsider which has much stricter standards. A motion to reconsider can only address: “(1) newly discovered evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing law.” Liceaga v. Baez 2019 IL App (1st) 181170 (citations are omitted)

Motions to reconsider are only required for final judgments (like a marital settlement agreement or an allocation of parenting time and parenting responsibilities. If the error was in a pre-judgment temporary order, the order can be changed for any reasonable reason.

“A temporary order entered under this Section:

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing” 750 ILCS 5/501(d)(2)

Mistakes happen. Matter of fact, you’re getting a divorce. You are knee deep in a mistake. It is okay to point out a small clerical error and get it fixed…it is probably the least of your problems. If you need a problem fixed, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.

Share Article on


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.

More about This Topic

Relevant Articles

Call Now Button