Most Illinois divorces are resolved via settlement not trial.
Parties to an Illinois divorce will often circulate proposed agreements until they come to a final meeting of the minds and sign the same agreement.
Illinois law strongly encourages settlement.
The purpose of the Illinois Marriage and Dissolution of Marriage Act is “[t]o 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 as provided in Sections 513 and 513.5 after the children attain majority.” 750 ILCS 5/502(a)
Divorce is an extremely emotional experience. Either party may sign an agreement simply to terminate the pain of the divorce process. Later, when the fog of litigation has been lifted, the parties may realize that the marital settlement agreement that was signed and entered by the court was so one-sided that the agreement should be declared unconscionable and rendered void.
While marital settlement agreements are generally upheld under Illinois law, the Illinois Marriage and Dissolution of Marriage Act makes an exception for agreements which are found to be unconscionable.
“The terms of the agreement, except those providing for the support, custody, and visitation of the children, are binding on the court unless it finds after considering the circumstances of the parties and any other relevant evidence provided by the parties, on their own motion or on the request of the court that the agreement is unconscionable.” 750 ILCS 5/502(b)
“A settlement agreement can be set aside if it is shown that the agreement was procured through coercion, duress or fraud, or if the agreement is unconscionable.” In re Marriage of Gorman, 284 Ill. App. 3d 171, 180 (Ill. App. Ct. 1996)
Unconscionability encompasses “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” In re Marriage of Broday, 256 Ill. App.3d 699, 704-05, 628 N.E.2d 790 (1993)
A claim that a marital settlement agreement is unconscionable must be brought as a motion to vacate the marital settlement agreement.
If the motion to vacate is filed within 30 days of the marital settlement agreement’s entry, the court can vacate the agreement for almost any purpose the court finds reasonable.
“The court may in its discretion…may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e)
After 30 days of the marital settlement’s entry, the court must hear certain proofs.
“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section…All relief…shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.” 735 ILCS 5/2-1401
“To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the section 2-1401 petition.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)
You cannot sit on an unconscionability claim. You must bring a claim on unconscionability to the court’s attention as soon as possible.
What Must Be Proven To Establish That A Marital Settlement Agreement Is Unconscionable In Illinois?
It is extremely difficult to declare an agreement that was voluntarily entered into by both parties as unconscionable.
“When a party seeks to vacate a property settlement incorporated into a judgment of dissolution of marriage, all presumptions are in favor of the validity of the settlement.” In re Marriage of Bielawski, 328 Ill. App. 3d 243, 251 (Ill. App. Ct. 2002)
The default presumption is that the marital settlement agreement is valid.
“The fact that an agreement merely favors one party over another does not make it unconscionable….A court should not set aside a settlement agreement merely because one party has second thoughts.” In re Marriage of Bielawski, 328 Ill. App. 3d 243, 251 (Ill. App. Ct. 2002)(citations and quotations omitted)
Unconscionability can be found by a court under only the most extreme of circumstances.
“To rise to the level of being unconscionable, the settlement must be improvident, totally one-sided or oppressive” In re Marriage of Gorman, 284 Ill. App. 3d 171, 182 (Ill. App. Ct. 1996)
A marital settlement agreement is “improvident” if it is “a judgment arrived at by using misleading information of a mistaken assumption.” Black’s Law Dictionary (11th ed. 2019)
When considering unconscionability of a marital settlement agreement, Illinois courts must look at both the agreement itself and how the parties arrived at the agreement.
“In determining whether a settlement agreement is unconscionable, the court must consider (1) the conditions under which the agreement was made, and (2) the economic circumstances of the parties which result from the agreement.” In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 219 (1994)
“Unconscionability exists where there is an absence of a meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” (Internal quotation marks omitted.) In re Marriage of Steadman, 283 Ill. App. 3d 703, 709 (1996).
More specifically, Illinois courts must make identify either procedural or substantive unconscionability in order to void a marital settlement agreement.
“A trial court may make a finding of unconscionability based on procedural unconscionability, substantive unconscionability, or some combination of the two.” In re Marriage of Tabassum, 377 Ill. App. 3d 761, 774 (2007)
Procedural Unconscionability And Marital Settlement Agreements In Illinois
“A contract is procedurally unconscionable if an impropriety in the process of forming the contract deprived a party of a meaningful choice.” In re Marriage of Tabassum, 881 N.E.2d 396, 409-10 (Ill. App. Ct. 2007)
A “lack of meaningful choice” is almost always achieved via duress.
“Duress has been defined as a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive him of the exercise of his free will, and it may be conceded that a contract executed under duress is voidable.” Kaplan v. Kaplan, 182 NE 2d 706 – Ill: Supreme Court 1962
“Duress may make an agreement between spouses unconscionable.” In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 41.
“Duress may be sufficient to render an agreement between spouses unconscionable. Duress includes oppression, undue influence, or taking undue advantage of the stress of another to the point where another is deprived of the exercise of free will.” In re Marriage of Richardson, 606 NE 2d 56 – Ill: Appellate Court, 1st Dist., 6th Div. 1992
Duress must be proven by the party alleging duress.
“The person asserting duress has the burden of proving, by clear and convincing evidence, that he was bereft of the quality of mind essential to the making of the contract.” In re Marriage of Hamm-Smith, 261 Ill.App.3d 209, 215, 198 Ill.Dec. 763, 633 N.E.2d 225 (1994)
It is extremely difficult to prove a person’s state of mind at the time they entered the agreement. But, the state of mind of either party is not really necessary to prove duress. Rather, the duress itself is the only thing considered and that duress must be objectively bad/serious.
“Duress is measured by an objective, and not a subjective, test.” Allen v. Board of Trustees, 285 Ill. App. 3d 1031, 1035 (Ill. App. Ct. 1996)
“Taking undue advantage of the stress of another” requires some truly bad acts. Duress is not merely acting on the opportunity of a soon-to-be-ex-spouse’s stress level.
“Acts or threats cannot constitute duress unless they are legally or morally wrong” In re Marriage of Barnes, 755 NE 2d 522 – Ill: Appellate Court, 4th Dist. 2001
Substantial Unconscionability And Marital Settlement Agreements In Illinois
If procedural unconscionability is not found in the acts of the party who benefited from the contract, substantial unconscionability can be found in the agreement itself.
While procedural unconscionability looks to the parties respective situation right before the marital settlement is signed, substantive unconscionability looks to the parties relative positions right after the contract is signed.
“The determination of unconscionability focuses on the parties’ relative economic positions immediately following the making of the agreement.” In re Marriage of Richardson, 606 NE 2d 56 – Ill: Appellate Court, 1st Dist., 6th Div. 1992
Substantive unconscionability can be proven by “contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.” Kinkel v. Cingular Wireless, 223 Ill. 2d 1, 28 (Ill. 2006)(citations and quotations omitted)
“Substantive unconscionability is based on the fairness and obligations of the contract’s terms, and it can be shown by contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.” Marriage of Tabassum, 377 Ill. App. 3d 761, 7747 (2007)
An agreement is substantively unconscionable “if no man in his senses, not under delusion, would make [it], on the one hand, and…no fair and honest man would accept [it] on the other.” (Internal quotation marks omitted.) In re Marriage of Wig, 2020 IL App (2d) 190929, ¶ 19.
Hidden Assets And Unconscionable Marital Settlement Agreements
Undisclosed marital (and, thus, divisible) assets can be the basis for finding a marital settlement agreement unconscionable.
“[I]n instances where the trial court finds that respondent shielded certain marital assets from the petitioner, and thus prevented petitioner from making an informed decision to enter into the property settlement, or the trial court from making a fair and equitable distribution of the marital property in just proportion, the court should find the settlement unconscionable.” In re Marriage of Richardson, 606 NE 2d 56 – Ill: Appellate Court, 1st Dist., 6th Div. 1992
Hidden assets must be actively hidden. A failure to ask about assets is not a basis of a finding of unconscionability. If a spouse “tendered her comprehensive financial statement and affirmatively misrepresented to [the other spouse] that all of her assets were disclosed in it and accounted for in the MSA.” That should be enough to vacate the allocation of all the assets.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160 – Ill: Appellate Court, 2nd Dist. 2022
Unconscionable Support Orders In An Illinois Divorce
The division of assets is not the part of a marital settlement agreement that may be deemed unconscionable. Support orders (maintenance and/or child support) are held to a much higher standard under the Illinois Marriage and Dissolution of Marriage Act.
Child support should be determined using the guidelines formula…unless the court makes specific findings of why the guidelines child support amount is inadequate.
“The court shall determine child support in each case by applying the child support guidelines unless the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors” 750 ILCS 5/505(a)(2)
Moreover, “[a]ny deviation from the guidelines shall be accompanied by written findings by the court specifying the reasons for the deviation and the presumed amount under the child support guidelines without a deviation (emphasis added).” 750 ILCS 5/505(a)(3.4)
“If the court deviates from the guidelines, the court must state the amount that would have been required under the guidelines, if calculable, then the court must include the reason for the variance from the guidelines” Melamed v. Melamed, 2016 IL App (1st) 141453
These written findings do not have to be very detailed.
“The trial court did not err when it did not make a specific finding in its order regarding the Respondent’s income nor the actual needs of the children because the statute does not require it. The relevant statutory text allows a trial court to deviate from the guidelines “after considering the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors.” This language demonstrates the court can consider the listed factors but is not required to make a specific finding as to each one. The statutory language only requires the trial court provide a reason or reasons for its deviation, which it did.” Melamed v. Melamed, 2016 IL App (1st) 141453
An Illinois divorce court must not only make written findings, an Illinois divorce court must also take evidence of why the parties are not using guidelines support.
“[W]hile a court may approve of and enter agreed orders for child support in an amount less than that provided for in the guidelines, it must first hear evidence on the relevant factors set forth in section 505(a)(2) and make an express finding as to the reason for the deviation.” In re Marriage of Hightower, 358 Ill. App. 3d 165, 171- 72 (2005)
Without written findings and evidence entered upon which those findings are based, that child support order is de facto unconscionable, null and void. A court should “vacate the child support provision of the trial court’s order and remand for compliance with the statute.” Marriage of Monsen, 2024 IL App (1st) 231011-U
Likewise, maintenance awards that deviate from the statutory formula must be explained by the court with written findings.
[I]f the court deviates from applicable guidelines…it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines; and…the court shall state whether the maintenance is fixed-term, indefinite, reviewable, or reserved by the court.” 750 ILCS 5/504(b-2)(2),(3)
“[C]ourts are required to make these findings if they depart from either aspect of the [maintenance] guidelines.” IN RE MARRIAGE OF HARMS AND PARKER, 103 NE 3d 979 – Ill: Appellate Court, 5th Dist. 2018
A non-guidelines child support or maintenance award without sufficient written explanation and evidence as a basis for that explanation can be voided without proving procedural or substantive unconscionability.
Modifying The Agreement In Lieu Of Declaring The Agreement Unconscionable
If a marital settlement agreement cannot be voided as unconscionable, it can almost always be modified with good cause.
Child support and maintenance change with the parties incomes over the years.
“[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)
Likewise, parenting issues are always modifiable.
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)
Property division is not modifiable, however.
“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)
For this reason, a claim of unconscionability is often the last resort for a divorced spouse who is unhappy with their marital settlement agreement.
If you believe your marital settlement agreement is unconscionable…or your ex-spouse believes that, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer today.
