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Signatures In An Illinois Divorce
The Illinois Supreme Court has released the Divorce requires a lot of filings with the court. Those filings usually require the signature of a party to the divorce and/or their attorney to certify what is written on the filings.
What Requires A Signature During An Illinois Divorce Proceeding?
If a document gets filed in a divorce court someone has to sign it.
“Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other document and state his address.” Ill. Sup. Ct. R. 137(a)
If there’s a lawyer involved, the lawyer has to sign everything that is filed.
“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Sup. Ct. R. 137(a)
If represented, the litigant has to also sign filed documents (this is called “verification”) but only when an Illinois statute or rule requires verification.
“Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit.” Ill. Sup. Ct. R. 137
If a document is not signed, the document shall be effectively unfiled by the court or stricken.
“If a pleading, motion, or other document is not signed, it shall be stricken.” Ill. Sup. Ct. R. 137
Of course, failure to sign a document is usually due to the lawyer forgetting to sign the document. A quick reminder will allow for a subsequent filing of the signed document without striking the original document.
Striking an unsigned pleading will happen “unless it is signed promptly after the omission is called to the attention of the pleader or movant.” Ill. Sup. Ct. R. 137
An actual lawyer must sign all pleadings. Any lawyer will do. A pleading doesn’t need the signature of the primary lawyer working on the case.
“[U]nder Supreme Court Rule 137 “attorney of record” is interpreted somewhat broadly to include other associates at the same firm retained by a party.” Bachmann v. Kent, 689 NE 2d 171 – Ill: Appellate Court, 1st Dist., 6th Div. 1997
A paralegal or law firm employee who does not have a license cannot sign on behalf of a lawyer.
“The signing of a paper by a law firm, rather than an individual attorney, constitutes a violation of Supreme Court Rule 137” Bachmann v. Kent, 689 NE 2d 171 – Ill: Appellate Court, 1st Dist., 6th Div. 1997
Orders obtained during the course of a divorce also require the signature of the judge entering the order. This signature distinguishes the order from mere advisory talk that judges are wont to do in Illinois divorce courts.
“Oral pronouncements are not final, binding or appealable. As such, prior to the filing of the signed judgment, the court is free, upon its own motion, or that of any party, to alter its oral pronouncements. Only the signed judgment embodies the final and binding decision of the court.” In re Marriage of Brooks, 486 NE 2d 267 – Ill: Appellate Court, 1st Dist. 1985
Once an order is signed…it may be appealable by a higher court. If an order is not signed, then the order is probably not enforceable.
The Judgment For Dissolution Of Marriage must be signed by a judge. “If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge or if a circuit court rule requires the prevailing party to submit a draft order, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” Ill. Sup. Ct. R. 272
Agreements And Signatures In An Illinois Divorce
95% of divorces in Illinois are eventually resolved by agreement. Agreements are strongly encouraged.
“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” 750 ILCS 5/502(a)
Agreements in an Illinois divorce must in writing.
“Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court” 750 ILCS 5/502(a)
If the agreement is in writing it will probably be signed as proof that both parties have assented to the agreement via Illinois contract law.
“The provisions of a [marital] settlement agreement are to be interpreted by normal contract rules.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984
“A contract signed by the party…may be enforced against him.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984
“The law is clear in Illinois that where the parties reduce the agreement to writing and its signature by them is a condition precedent to its completion, no contract will exist until that is done.” Lynge v. Kunstmann, 418 NE 2d 1140 – Ill: Appellate Court, 2nd Dist. 1981
Signatures on agreements aren’t absolutely necessary in an Illinois divorce. If there is evidence of an oral agreement and subsequent cooperation under that agreement…that agreement will be binding without a signature.
“If, because of the lack of signature, no written agreement exists, there has been sufficient proof of an oral agreement consistent with the unsigned draft. Oral contracts are proved not only by what the parties have said, but by what they have done.” In re Marriage of Sherrick, 573 NE 2d 335 – Ill: Appellate Court, 4th Dist. 1991
The intent of the parties is what determines whether a contract in Illinois is binding or not. If there’s enough evidence that the parties had the intent to bind themselves to the contract, that contract will be binding…whether the contract was signed or not.
“Ordinarily one of the acts forming part of the execution of a written contract is the signing of it. However, a signature is not always essential to the binding force of an agreement. Whether a writing constitutes a binding contract, even though it is not signed, or whether the signing of the instrument is a condition precedent to its becoming a binding contract usually depends upon the intention of the parties. The object of a signature is to show mutuality or assent” Lynge v. Kunstmann, 418 NE 2d 1140 – Ill: Appellate Court, 2nd Dist. 1981
Agreed orders are a common exception to the requirement of a signature as evidence of intent.
Lawyers can agree on behalf of their clients and those agreements can be memorialized via order without the signatures of the clients or the lawyers.
“In general, a party who retains an attorney holds out the attorney as an authorized agent to receive correspondence and notices, including notice of court proceedings. Furthermore, an attorney’s statements may bind the client to a settlement agreement when the client later claims to have misunderstood the terms of the settlement particularly when the settlement is made in open court or in the presence of the client. This authority is not unlimited, however, because an attorney who is hired to represent a client in litigation is not necessarily authorized to compromise the suit.” In re Marriage of Clarke, 550 NE 2d 1220 – Ill: Appellate Court, 1st Dist. 1990 (Citations Ommitted)
If the lawyer didn’t really have the authority to bind his client to an agreement via order, the order will not be enforceable.
If an ““Agreed Order” does not appear to have been approved by [a litigant], it cannot be enforceable as against him.” In re Marriage of Getautas, 544 NE 2d 1284 – Ill: Appellate Court, 2nd Dist. 1989
Because of this, lawyers often require their clients to sign agreed orders during an Illinois divorce.
Electronic Signatures In An Illinois Divorce
“Orders and judgments may be prepared, presented, and signed electronically, if permitted by the Supreme Court.” Ill. Sup. Ct. R. 271 Ill. Sup. Ct. R. 272
““Signed” or “signature” also includes the execution of any court-approved digital signature.” Ill. Sup. Ct. R. 2(b)(5)
“[A]ll documents in civil cases shall be electronically filed with the clerk of court using an electronic filing system approved by the Supreme Court of Illinois.” Ill. Sup. Ct. R. 9(a)
“Electronically filed documents that require an original signature when conventionally filed shall bear a facsimile or typographical signature of the attorney or selfrepresented party authorizing such filing, (e.g. “/s/ Adam Attorney”), and shall be deemed to have been signed in-person by the individual identified… The electronic and digital signatures implemented by a court must comply with the practices defined in the Electronic Commerce and Security Act.” Illinois Supreme Court Order Adopted Dec. 8, 2017.
An “”Electronic Signature” As defined in the Electronic Commerce and Security Act (5 ILCS 175/5-105)”
The Electronic Commerce Security Act, 5 ILCS 175/5-105, provides that an electronic signature “means a signature in electronic form attached to or logically associated with an electronic record.” The Electronic Commerce Security Act further provides, at 5 ILCS 175/5-120(a), “where a rule of law requires a signature, or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law.”
The Illinois Supreme Court has released the Electronic Filing Procedures And User Manual For The Supreme Court Of Illinois which details the requirements for signing electronically.
“a. Except as otherwise provided, the registered user’s confidential, secure username and password constitute the registered user’s signature on the document, in compliance with Supreme Court Rules and statutes regarding original signatures on Court documents. When a signature is provided in this manner, the registered user must also include either an “/s/” and the registered user’s name typed in the space where the registered user’s signature would otherwise appear or an electronic image of the registered user’s signature, which may take the form of a public key-based digital signature or a scanned image of the registered user’s signature.
b. The registered user shall not allow his or her username or password to be used by anyone other than an agent who is authorized by the registered user.
c. If a document is notarized, sworn to, or made under oath, the registered user must e-file the document as a scanned image containing an image of the necessary original signature(s). A document certified pursuant to Section 1- 109 of the Code of Civil Procedure may contain an electronic signature as described in subparagraph a.
d. If a document requires the signature of an opposing party, the registered user must e-file the document as a scanned image containing the opposing party’s signature.” Electronic Filing Procedures And User Manual For The Supreme Court Of Illinois
Documents Which Require A Signature In An Illinois Divorce
Some pleadings and motions filed in an Illinois divorce will specifically require a signature the signature of a litigant in addition to the signature of an attorney as required by statute.
“The complaint or petition for dissolution of marriage or legal separation shall be verified” 750 ILCS 5/403(a)
“Where there is on file a verified complaint or verified petition seeking temporary eviction from the marital residence, the court may…enter orders granting the exclusive possession of the marital residence to either spouse.” 750 ILCS 5/501(c-1)
“A consent judgment between client and counsel, however, is permissible if it is entered pursuant to a verified petition for entry of consent judgment” 750 ILCS 5/508(d)
“The parenting plan must be in writing and signed by both parents.” 750 ILCS 5/602.10(d)
“At the time of the [final] hearing, the parties shall submit to the court an affidavit executed by both parties stating that all property has been divided in accordance with the agreement of the parties and that they have executed all documents required to effectuate the agreement” 750 ILCS 5/454
While many petitions and motions require an affidavit to accompany the motion or petition describing the situation and conditions from the petitioner’s perspective, a signature is not mentioned in those statutes but probably implied as a requirement…because an affidavit is a document which is sworn to.
“An affidavit is a written declaration under oath sworn to before a person with authority under the law to administer oaths.” Brennan v. Kolman, 781 NE 2d 644 – Ill: Appellate Court, 1st Dist., 6th Div. 2002
Getting an appropriate signature isn’t that important during an Illinois divorce…until it is. Contact my Chicago, Illinois family law firm to find out if you’re filing your documents with the proper signatures.