Most divorces in Illinois are governed by one to three documents: a Judgment For Dissolution Of Marriage, A Marital Settlement Agreement and/or an Allocation of Parenting Time and Parental Responsibilities.
95% of these final divorce documents will be entered into by agreement. Agreements will be enforced as written in an Illinois court.
“[S]ettlement agreements are binding absent a finding of unconscionability.” In re Marriage of Stoker, 2021 IL App (5th) 200301
Agreements in divorce are subject to contract law for the purposes of enforcement. Contract law can sometimes modify even an agreed order. This means that a court may decide that some portions of a contract are unenforceable.
For example, a court will not enforce a Parenting Plan which is not in the best interests of the child. Additionally, a court will not enforce a non-modifiable child support amount because that is contrary to the statute, case law and public policy.
The law is always changing. Facts change in both of the parties’ lives change, too. When the law or the facts change sufficiently, the various contracts with an ex-spouse may become null and void. The question is how much of the contract becomes null and void.
“[T]he unenforceability of one provision in a contract [can] render the entire contract void, even though the contract contains a severability clause” Abbott-Interfast Corp. v. Harkabus, 619 NE 2d 1337 – Ill: Appellate Court, 2nd Dist. 1993
Because of this possibility of nullifying the entire contract based on a portion of the contract being null and void, final divorce documents in Illinois often contain a severability clause.
A sample seveverability clause is included below:
“If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall remain in full force, effect and operation.”
Courts must acknowledge this severability clause in order to preserve as much of the agreement that remains valid as possible.
“A court may sever the unenforceable portion of an agreement and enforce the remainder in favor of a party who did not engage in serious misconduct if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.” Kinkel v. Cingular Wireless LLC, 857 NE 2d 250 – Ill: Supreme Court 2006 (quotations omitted)
“The trial court may, in its discretion, modify a contract so that it comports with the law or sever unenforceable provisions from a contract. The existence of a severability clause in a contract certainly strengthens the case for the severance of unenforceable provisions because it indicates that the parties intended for the lawful portions of the contract to be enforced in the absence of the unlawful portions.” Abbott-Interfast Corp. v. Harkabus, 619 NE 2d 1337 – Ill: Appellate Court, 2nd Dist. 1993
Courts generally don’t want to throw the baby out with the bathwater. An Illinois divorce court will try to preserve as much of the original agreement as possible whether there is a severability clause or not.
“[C]ourts will enforce valid parts of partially unlawful contracts, even in the absence of a severability provision.” Corti v. Fleisher, 417 NE 2d 764 – Ill: Appellate Court, 1st Dist. 1981
A severability clause definitely helps to preserve as much of the agreement as possible.
A severability clause “strengthens the case for the severance of unenforceable provisions because it indicates that the parties intended for the lawful portions of the contract to be enforced in the absence of the unlawful portions.” Abbott-Interfast Corp. v. Harkabus, 250 Ill.App.3d 13, 21, 189 Ill.Dec. 288, 619 N.E.2d 1337 (1993)
If “the agreement has a severability clause, [the severability clause] reflects the parties’ intent to give effect to the valid portions of the contract.” Kinkel v. Cingular Wireless LLC, 857 NE 2d 250 – Ill: Supreme Court 2006
Divorces agreements are a particular type of contract, though. Typically, both parties have given up one thing to get another thing. Declaring either of those things null and void while preserving the other half of the bargain is inherently unfair.
If “custody terms were an essential aspect of the [agreement]and were intertwined with the financial terms, we [the court] do not believe that we can apply the severability clause and enforce the remaining provisions of the [agreement].” In re Marriage of Iqbal and Khan, 11 NE 3d 1 – Ill: Appellate Court, 2nd Dist. 2014
The court will look at the facts of each case to determine if a final divorce agreement is, in fact, severable.
“In determining whether to modify the Agreement or to sever certain provisions while enforcing others, the trial court should consider the extent to which the provisions operate independently of each other. Because the parties in this case intended the provisions in the Agreement to be severable, the equities would seem to favor enforcing those provisions in the agreement which are valid unless they are so closely connected with unenforceable provisions that to do so would be tantamount to rewriting the Agreement.” Abbott-Interfast Corp. v. Harkabus, 619 NE 2d 1337 – Ill: Appellate Court, 2nd Dist. 1993
Instead of just nodding when your divorce lawyer explains that the first 5 pages of your divorce agreement are “boilerplate language”, why not discuss your case with someone who understands all the intricacies of the entire document which will govern your future. Contact my Chicago, Illinois family law firm to discuss your Illinois divorce case with an experienced Illinois divorce attorney.