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Posted on May 12, 2022

Vague And Ambiguous Orders In An Illinois Divorce

After years in a bad marriage, you should be used to getting vague, counter-intuitive and just plain terrible instructions from your spouse. But, what if you get those vague instructions from a judge in your Illinois divorce?

The point of an order is for the parties under the jurisdiction of the Illinois divorce case to follow that order. If the order is not clear, then enforcement of the orders terms becomes problematic.

“Orders must be construed in a reasonable manner so as to give effect to the apparent intention of the trial court.” Kiefer v. Rust-Oleum Corp., 916 NE 2d 22 – Ill: Appellate Court, 1st Dist., 1st Div. 2009

If the parties cannot “reasonably construe…the apparent intention of the trial court” they must return to the trial court on a motion for clarification of order or (more likely) a motion to enforce that order.

Whether politely asking for clarification or demanding enforcement of what one party believes the order is said, the court will provide clarification.

“[A]n order will ordinarily be interpreted in the context of a subsequent enforcement proceeding.” In re Breslow v. Breslow, 306 Ill. App. 3d 41, 57 (Ill. App. Ct. 1999)

Enforcement of an order is not always in front of the same judge that wrote or approved the order. Family law court has lot of turnover of judges. So, the judge who wrote your order may be sitting in a different court a year from now with a brand new judge interpreting the same order.

“[E]rrors often occur when the judge hearing a case changes and the successor judge fails to adhere to-and may not even be aware of-the prior judge’s decisions and instructions to the parties. Therefore, it is incumbent upon the successor judge to carefully scrutinize the prior proceedings to determine the court’s previous directives and whether the parties have abided by them. Failure to do so may bring about a completely avoidable and unnecessary injustice by disrupting the parties’ settled expectations heading into future proceedings.” In re Marriage of Watson, No. 2-21-0137, 12 (Ill. App. Ct. 2022)

The first step is for the judge to determine if the order is truly vague and/or ambiguous or if one party is simply reading the order with their own entrenched bias (very common yet understandable).

If the order appears to be clear and unambiguous, that order will be enforced as written without additional context.

A court interpreting [an] unambiguous order must look only at the words of the order, not at the record or the judge’s later statements about his intent.” People v. Cooper, 547 NE 2d 449 – Ill: Supreme Court 1989

Ambiguity in an order must be resolved…but how? Ambiguity in an order is resolved by looking to the intention of the judge who entered the order.

Hopefully, that intention can be determined by the language of the order itself. “[T]he determinative factor being the intention of the court, as gathered from all parts of the judgment itself.” IRMO Breslow, 306 Ill. App.3d 41, 57, 713 N.E.2d 642, 654 (1st Dist. 1999).

“Generally, the intention of the court is determined only by the order entered, and where the language of the order is clear and unambiguous, it is not subject to construction” Purcell & Wardrope, Chartered v. Hertz Corp., 279 Ill. App. 3d 16, 21 (1st Dist. 1996)

When the court enforcing/clarifying the order determines that there is sufficient ambiguity, the court may subject the order to “construction” so that the order may be properly construed.

Construction is “[t]he process, or the art, of determining the sense, real meaning, or proper explanation of obscure or ambiguous terms or provisions in a statute, written instrument, or oral agreement, or the application of such subject to the case in question, by reasoning in the light derived from extraneous connected circumstances or laws or writings bearing upon the same or a connected matter, or by seeking and applying the probable aim and purpose of the provision.” Black’s Law Dictionary (10th ed. 2014)

“[A]lthough an unambiguous judgment must be enforced as drafted, an ambiguous judgment may be read in conjunction with the entire record and construed in accordance therewith.” Breslow, 306 Ill.App.3d at 57, 239 Ill.Dec. 111, 713 N.E.2d 642.

To determine a past judge’s intention, the court must look at the record of the case. The record is what the court can look at in resolving an order’s ambiguity. The record is the court file. All the previous pleadings, orders, transcripts and admitted exhibits.

“[J]udgments are to be construed like other written instruments, the determinative factor being the intention of the court as gathered from all parts of the judgment itself” and “such construction should be adopted as will give force and effect to the judgment… A judgment which may be ambiguous may be read in conjunction with the entire record and it will be construed in accordance with that record.” In re Marriage of Plymale, 172 Ill. App.3d 455, 459 (2d Dist. 1988)

The record of the case captures the intention AT THE TIME the order was entered.

“[O]rders…should be interpreted in the context of the record of proceedings and the situation which existed at the time of their rendition.” Purcell & Wardrope, Chartered v. Hertz Corp., 664 NE 2d 166 – Ill: Appellate Court, 1st Dist., 1st Div. 1996 (citations omitted)

“Generally, the intention of the court is determined by the language in the order entered, but where the language of the order is ambiguous, it is subject to construction. In cases of ambiguity, the orders appealed from should be interpreted in the context of the record and the situation that existed at the time of their rendition.” Twardowski v. Holiday Hospitality Franchising, Inc., 748 NE 2d 222 – Ill: Appellate Court, 1st Dist., 1st Div. 2001

“To construe an ambiguous order, the record of the proceedings must be examined.” People v. Cooper, 547 NE 2d 449 – Ill: Supreme Court 1989

The record is then compared with the language of the judgment and the current law.

“[When an] order is ambiguous (as orders striking motions generally are), it is subject to the applicable rules of construction. Those rules require that any ambiguity in [an] order must be interpreted in the context of the record of proceedings. [T]he language of the order must be considered alongside the language of the law upon which it is based.” Won v. Grant Park 2, LLC, 2 NE 3d 595 – Ill: Appellate Court, 1st Dist., 6th Div. 2013

This will be a pure argument as there is no additional evidence that may be presented from beyond the court’s already existing, judicially noticed record.

Vague or Ambiguous Agreed Orders In An Illinois Divorce

Many orders in an Illinois divorce will be agreed. Marital Settlement Agreements, Allocations of Parenting Time and Parental Responsibilities, agreed temporary orders, and agreed post-judgment orders are all orders that are entered by agreement. These agreed orders are treated differently than other orders for the purpose of resolving ambiguities.

Agreed orders are construed the same way contracts are construed by words on the contract and anything outside the contract needs to be proven pursuant to the rules of evidence.

It is also well settled that the terms of a[n]…agreement are subject to the ordinary rules for the construction of contracts, and that the burden rests on the party asserting the agreement to establish its existence by clear and convincing evidence.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825-26 (Ill. App. Ct. 1990)

While orders are construed to determine what the intention of the judge was at the time the order was entered. An agreed order will be construed to determine what the intent of the parties was at the time they entered into the agreement that was later ratified as an order.

“The primary purpose of construing a contract is to give effect to the intent of the parties. A court must look to the language of the contract, given its plain and ordinary meaning, as the best indication of the parties’ intent.  Because words derive their meaning from their context, a contract must be construed as a whole, viewing each part in light of the others. The intent of the parties is not determined from detached portions of a contract or any clause or provision standing by itself.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

If an agreed order has ambiguities…the court can look beyond the agreement and beyond the court record.

“If the terms of a contract are susceptible to more than one meaning, it is ambiguous. In that case, a court may consider extrinsic evidence to determine the parties’ intent.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

“Where the terms of a marital settlement agreement are ambiguous, the court should consider extrinsic evidence of the parties’ intention to resolve the ambiguity.” In re Marriage of Corkey, 269 Ill. App. 3d 392, 399 (Ill. App. Ct. 1995)

Extrinsic evidence is usually governed by the “parole evidence rule” which allows for some discussion about how the agreement came about and what each party’s expectations were.

“The so-called parol-evidence rule is, in fact, a rule of contract construction as well as an evidence rule. If the parties to an instrument intend that it alone is to constitute the agreement between them or if the instrument itself is complete and discloses no intention that extrinsic matters are a part of it, terms not included in the instrument may not be proved; and if its language is unequivocal, no evidence to show any other meaning or intention may be considered.” Weiland Tool & Mfg. Co. v. Whitney, 251 NE 2d 242 – Ill: Supreme Court 1969

The extrinsic evidence used to resolve an ambiguity in an agreement usually amounts to “he said/she said” which isn’t very helpful to the court.

Therefore, courts usually say that whoever actually wrote the agreement had the opportunity to clarify the agreement at the time, therefore, the other party can use their interpretation (if reasonable).

“Any ambiguity must be resolved against the drafter of the contract” International Supply Co. v. Campbell, 391 Ill.App.3d439 452(2009)

The drafter is not always in trouble though if the agreement is ambiguous. If the intent of the parties can be determined then the court can memorialize that intent without construing against the drafter.

“[T]he rule that an ambiguity should be construed against the drafter [is] inappropriate where the court could have ascertained the intent of the parties. It is the intent of the parties which must govern the interpretation of a settlement agreement.” In re Marriage of Gallentine, 576 NE 2d 575 – Ill: Appellate Court, 3rd Dist. 1991

The rule that ambiguities shall be construed against the drafter is common for contracts that are not certified by court order but shall not apply once a court order memorializes the contract.

“Because the dissolution order was apparently drafted by defendant Wilson’s attorney, it is argued that we should strictly construe that document against Mrs. Wilson. While that rule of interpretation is appropriate in cases involving ambiguous contractual terms…it is inapplicable when we seek the meaning of a judicial decree, which is a pronouncement of the court and not the parties.” Listeman, Bandy & Hamilton Ass’n v. Wilson, 445 NE 2d 323 – Ill: Supreme Court 1983

So, an agreed order is construed as a contract…but not so much as to automatically construe the ambiguity against the drafter…which leaves us back at “he said/she said.”

Will I Get In Trouble If I Don’t Follow A Vague or Ambiguous Order In My Illinois Divorce?

To follow a court order…you have to understand the court order.

“[A party who fails to abide by an order]…has the burden of showing that the violation was not willful and contumacious and that he or she had a valid excuse for failing to follow the order.” In re Marriage of Knoll, 2016 IL App (1st) 152494, ¶ 50, 65 N.E.3d 878.

Failure to follow a vague order will not result in a finding of contempt.

“A mandate of the court must be clear before disobedience can subject a person to punishment. To support a finding of contempt, the order must be so specific and clear as to be susceptible of only one interpretation. It must not only be capable of reasonable interpretation, but that interpretation must be to the exclusion of other reasonable interpretations; it must be unambiguous.” In re Marriage of Steinberg, 302 Ill.App.3d 845, 706 N.E.2d 895, 236 Ill.Dec. 21 (1st Dist. 1998) (citations and quotes omitted)

“I reasonably didn’t believe that the order required what the other side alleges the order requires” is a valid excuse and shows that your behavior was not contumacious (willfully disobedient to authority).

If the court agrees with your opponent as to what the order says and the court believes that the understanding of the court order was obvious…you are going to have problems.

You will be forced to abide by the court order immediately and pay the opposing side’s attorney’s fees for their trouble.

When Can I Not Contest That An Order Is Ambiguous In An Illinois Divorce?

In the law, you cannot have your cake and eat it, too. If you took advantage of one reading of the order…you have to abide by that version of the understanding in all future orders.

“It has long been held in Illinois that accepting benefits of a dissolution judgment may “estop’ a party from subsequently challenging the validity of that judgment. … The purpose of equitable estoppel is to prevent fraud and injustice.” e.g., In re Marriage of Schlam, 271 Ill. App. 3d 788, 793-94 (2d Dist 1995)

Family law is never ending. It always seems like you can get another bite at the apple. With a good lawyer…you probably can. If you’d like to suggest that an order is ambiguous so you can get your second (or fifth) bite at the proverbial apple, contact my Chicago, Illinois family law firm to speak with an experienced Chicago 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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