Illinois final divorce documents include a lot of boilerplate language. Most divorce lawyers will skim the standard paragraphs. After all, the boilerplate language is the same in every Marital Settlement Agreement.
I am not most divorce lawyers. I write 3000 word articles on the weekends about the intricacies of my job. I want to know why we include waiver and release clauses and what effect they have on a client’s divorce and future rights.
It is important that you understand what you are signing when you are getting divorced. You are not contracting your obligations to your former spouse and their obligations to you, you are also contracting for what you are NOT required to ever do with your former spouse.
What Is A Waiver And Or Release Clause In An Illinois Divorce
The Marital Settlement Agreement is the document which finalizes all financial obligations between divorcing couples.
Marital Settlement Agreements should finalize as many issues as possible so that the couples do not find themselves in court again.
Illinois divorce “courts should seek a high degree of finality so that parties can plan their future with certainty and are not encouraged to return repeatedly to the courts.” In re Marriage of Hellwig (1981), 100 Ill. App.3d 452, 459, 426 N.E.2d 1087, 1092.
Releases and waivers extinguish future issues by explicitly contracting that the parties will not act on those issues in the future.
“A husband and wife may make a valid separation agreement by which one or each of them releases all his rights in the other’s property, including inchoate rights of inheritance and dower.” In re Estate of Trecker, 246 NE 2d 56 – Ill: Appellate Court, 1st Dist., 3rd Div. 1969
A release is a “liberation from an obligation, duty or demand; the act of giving up a right or claim to the person whom it could have been enforced” Black’s Law Dictionary (11th ed. 2019)
A waiver is “[t]he voluntary relinquishment or abandonment – express or implied – of a legal right or advantage.” Black’s Law Dictionary (11th ed. 2019)
Releases and waivers specify that the parties will not proceed against each other in future legal actions.
“[T]he purpose of a waiver provision is to act as a safeguard and protect both parties from those interests and contingencies that may unexpectedly vest in the former spouse at some future point in time.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998
After a divorce with a complete and comprehensive division of assets and debts…what else could a couple go back to court for?
Former spouses can returne to court to address anything that was not included in the divorce decree.
Additionally, “[a] divorce does not terminate property rights of a husband and wife which exist independent of the marriage.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998
Rights that exist independently between a husband and wife are the same that would exist between any two people: the right to contract with each other, the right not to be harmed by the other, etc.
“[T]he logical implication of the language of a waiver is that each spouse intended to relinquish any rights and interests that they may have otherwise possessed” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998
My Illinois family law firm includes the following releases and waivers in our standard MSA: 1) Mutual Release Of Claims For Injury, 2) Waiver of Estate Claim and 3) Mutual Release of Additional Rights.
Mutual Release Of Claims For Injury
You only hurt the ones you love(d). So, you do not want your ex claiming they are sick, injured or caught a sexually transmitted disease from you. If you are hurt, bring it up during the divorce proceedings…or never again.
“Mutual Release of Claims for Injury. To the fullest extent permitted by law, each of the parties does hereby forever relinquish, release, waive and forever discharge the other from all claims and causes of action of any type, known or unknown, that either of them had in the past against the other, for whatever reason, including by reason of their marriage or their relationship prior to their marriage. This release includes, but is not limited to, all claims based on injury to the person, whether negligent, willful and wanton, intentional or otherwise. This release is final and irrevocable, regardless of any facts which may exist but are not known to the parties. Each party further covenants and agrees for himself, her heirs, personal representatives and assigns, attorneys or agents, that neither of them shall at any time hereafter sue the other or her estate, heirs, personal representatives, grantees, devisees or assigns, for the purpose of enforcing any rights specified to be released, waived or relinquished under this Agreement; and each party further agrees that in the event any suit shall be commenced, this release, when pleaded, shall be and constitute a complete defense thereto. As set forth in the Judgment, nothing contained in this Paragraph or any other paragraph herein shall release either party of their obligations under this Marital Settlement Agreement.”
Waiver of Estate Claims In An Illinois Divorce
After one spouse is dead…they cannot complain if the other spouse demands money from their estate. To prevent your heirs from having to deal with your ex, estate claim waivers are included in Illinois Marital Settlement Agreements.
“Waiver of Estate Claim. Each of the parties hereby waives and relinquishes all right to act as administrator with-the-will-annexed of the estate of the other party and each of the parties hereto does further relinquish all right to inherit by intestate succession any of the property of which the other party may have or possessed, and should either of the parties hereto die intestate, this Agreement shall operate as a relinquishment of all right of the surviving party hereafter to apply for letters of administration in any form, and the estate of such deceased party, if she or she dies intestate, shall descend to the heirs of such deceased party, in the same manner as though the parties hereto had never been married, each of the parties hereto respectively reserving the right to dispose, by testament or otherwise of her or her respective property in any way she may see fit, without restriction or limitation whatsoever.”
Release And Waiver For Everything Else In An Illinois Divorce
No one wants to deal with their ex after the divorce. So, an all-encompassing release and waiver clause is usually included to prevent clever lawyers like me coming up with interesting ideas to hassle their client’s former spouses.
“Mutual Release of Additional Rights. To the fullest extent permitted by law, and except as herein otherwise provided, each party releases and relinquishes all rights and claims against the other party and her agents, attorneys and servants, and each of the parties does hereby forever relinquish, release, waive and forever quitclaim and grant to the other, her heirs, personal representatives and assigns, all rights of maintenance, alimony, inheritance, descent and distribution, homestead, dower, community interest and all other right, title, claim, interest and estate as Husband and Wife, widow or widower, whether existing by reason of the marital relation between said parties hereto pursuant to any present or future law, or otherwise including any and all right, title, claim or interest which she otherwise has or might have or be entitled to claim in, to or against the property, assets and estate of the other, whether real, personal or mixed, whether marital or non-marital, whether community or separate, whether now owned or hereafter in any manner acquired by the other party, whether in possession or in expectancy and whether vested or contingent, and for all damages and/or injuries arising out of the intentional or unintentional acts by either party against the other, whether or not within or incident to the marriage relationship existing between the parties so long as the acts occurred prior to the entry of the Judgment. Each party further covenants and agrees for himself, her heirs, personal representatives and assigns, that neither of them shall at any time hereafter sue the other or her estate, heirs, personal representatives, grantees, devisees or assigns, agents or servants for the purpose of enforcing any rights specified to be released, waived or relinquished under this Agreement; and each party further agrees that in the event any suit shall be commenced, this release, when pleaded, shall be and constitute a complete defense thereto. Each party further agrees to execute, acknowledge and deliver at the request of the other party, or her heirs, personal representatives, grantees, devisees, or assigns, any or all deeds, releases or other instruments and further assurances as may be required or reasonably requested to effect or evidence such release, waiver or relinquishment of such rights; provided, however, that nothing herein contained shall operate or be construed as a waiver or release by either party to the other of the obligation on the part of the other to comply with the express provisions of this Agreement.”
These all-encompassing waiver and release clauses which waive everything from everyone can be enforceable or not depending on the context of what is being pursued.
Covenant Not To Sue In An Illinois Divorce
These waivers are releases use really broad language, by design, that are not easily interpreted by the layperson.
To be more specific about what the parties will NOT do, the parties can enter into a covenant not to sue.
An example of a covenant not to sue is as follows: “
“Covenant Not to Sue: To the fullest extent permitted by law, and except as otherwise provided herein, Wilma does hereby forever relinquish, release, waive and release any and all claims against Fred Flintstone, Barney Rubble, Bedrock Divorce Firm, P.C. and Mr. Slate(the “Third Parties”) as of the signing of the Amended Judgment, including, but not limited to claims for fraud, conversion, intentional infliction of emotional distress, breach of contract, and unjust enrichment. Nancy further covenants and agrees for herself, her heirs, personal representatives and assigns, that they shall not at any time hereafter sue the Third Parties, their estate, heirs, personal representatives, grantees, devisees or assigns, for the purpose of enforcing any rights and claims specified to be released, waived or relinquished under this Amended Judgment; and each party further agrees that in the event any suit shall be commenced, this release, when pleaded, shall be and constitute a complete defense thereto.”
This is clearly a LOT more specific than the example release language that was provided earlier in the article. Specificity, however, also means that no one who was not mentioned will be covered by a covenant not to sue.
“Illinois has long recognized a clear distinction between the legal effect of a release and a covenant not to sue. A release extinguishes a cause of action whereas a covenant not to sue affects only the right to bring suit and not the cause of action itself. It is also recognized that an unqualified release of one joint tortfeasor operates to discharge all joint tortfeasors, while a covenant not to sue has no such effect.” Pate v. City of Sesser, 393 NE 2d 1146 – Ill: Appellate Court, 5th Dist. 1979
However, a very thorough and expansive covenant not to sue can also be deemed a release which can cover anyone and everyone.
With sufficient language, a “clause [can be] both a covenant not to sue and a release.” Malek v. Chuhak & Tecson, P.C., 2023 IL App (1st) 230723
Enforcing Waiver And Release Clauses In An Illinois Divorce
If a former spouse sues or pursues their former spouse, the other spouse can interject and say, “we are not allowed to bring this up anymore. It was part of our waiver and release.”
The enforceability of a waiver and release clause is dependent on the waiver and release clause’s language. In determining enforceability, a court’s “analysis focuses on the meaning of the language used in the Agreement itself by applying ordinary rules of contract interpretation” In re Marriage of Karafotas, 932 NE 2d 510 – Ill: Appellate Court, 1st Dist., 5th Div. 2010
The Marital Settlement Agreement is a contract. A contract should be “sufficiently definite and certain to be enforceable.” Morey v. Hoffman (1957), 12 Ill.2d 125, 131.
The more specific the waiver and release, the more enforceable the waiver and release will be. Situations not mentioned in the contract may not be enforced. Situations that could not have even been contemplated before the contract was entered into may not be enforced.
“It is clear that a contractual release cannot be construed to include claims not within the contemplation of the parties, and it will not be extended to cover claims that may arise in the future.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003
“A release with very general boilerplate language, such as the two provisions at issue, cannot be construed to release future causes of action between the parties.” Feltmeier v. Feltmeier, 798 NE 2d 75 – Ill: Supreme Court 2003
If something is not mentioned as being released…it may not be enforced.
An Illinois divorce court will “reject [an] argument that such a waiver is implicitly included in the boilerplate mutual release at the end of the MSA.” IN RE MARRIAGE OF KNUTSON AND KNUTSON, Ill: Appellate Court, 3rd Dist. 2016
Waivers and releases should not cover assets not mentioned (but they still might…see the case law mentioned later)
An Illinois divorce “court [can] refuse to apply a broadly worded waiver provision in the agreement, not because the terms of the waiver provision were too general, but because the assets in dispute were not specifically listed as marital assets.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998
Releases are broad by nature. Releases are guaranteeing against events that might happen but we do not know exactly what will happen, yet. So, releases will be constrained by more specific language contained in the rest of the agreement (like the very specific recitals).
“General words of release are restrained in effect by the specific recitals contained in the document. Releases are strictly construed against the benefitting party and must spell out the intention of the parties with great particularity.” Fuller Family Holdings v. Northern Trust, 371 Ill. App. 3d 605, 614 (Ill. App. Ct. 2007) (citations omitted)
That being said, the whole point of a waiver and/or release clause is to eliminate problems from unforeseen situations. So, broad waiver and/or release clauses are largely accepted and enforced within reason.
Illinois courts “enforce…broad waiver language” Hebert v. Cunningham, 129 NE 3d 539 – Ill: Appellate Court, 1st Dist., 6th Div. 2018
Property rights are knowable and foreseeable so they should be enforced by a waiver and/or release clause.
An Illinois divorce court will enforce a “divorce decree’s waiver provision [when] unambiguously broad and prospective, encompassing all future as well as present property rights” Hebert v. Cunningham, 129 NE 3d 539 – Ill: Appellate Court, 1st Dist., 6th Div. 2018
“[I]t would defeat the very purpose of a waiver provision for this court to find that the waiver at issue is an ineffective general waiver due to the drafter’s failure to expressly enumerate every specific property interest.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998
“To determine a waiver’s effect, the court considers two factors: (1) whether the disputed asset was specifically listed as a marital asset and awarded to one spouse; and (2) whether the waiver provision specifically states the parties are waiving any expectancy or beneficial interest” Estate of Albrecht v. Winter, 26 NE 3d 975 – Ill: Appellate Court, 3rd Dist. 2015
Illinois divorce courts can choose whether to enforce waivers and releases to current existing assets based on the circumstances. However, in Illinois, there are very specific rules for waiver of an expectancy interest.
An expectancy interest is a future interest. A future interest is “a property interest in which the privilege of possession or other enjoyment is future and not present.” Black’s Law Dictionary (11th ed. 2019)
In an Illinois divorce, an expectant interest can only be waived if specifically mentioned and then waived.
“[A] dissolution agreement may extinguish a divorced spouse’s expectancy interest in a land trust or an insurance policy if the agreement includes a clear expression of the spouse’s waiver of that interest. To determine the effect of a waiver, two factors must be considered: (1) whether the asset in dispute was specifically listed as a marital asset and awarded to a spouse; and (2) whether the waiver provision contained in the settlement agreement specifically states that the parties are waiving any expectancy or beneficial interest in that asset.” In re Marriage of Velasquez, 692 NE 2d 841 – Ill: Appellate Court, 3rd Dist. 1998
“Any waiver of an expectancy interest…must be specific and boilerplate language is insufficient to waive the interest.” Estate of Albrecht v. Winter, 26 NE 3d 975 – Ill: Appellate Court, 3rd Dist. 2015
Releasing A Divorce Lawyer From Liability
Finally, there is an additional release included in any Marital Settlement Agreement which releases the lawyers from liability.
“Release of Attorneys. Both parties acknowledge their separate instructions to their respective counsel, if any, relieving each of them from certain professional responsibility they would otherwise have as counsel in the negotiation and drafting of this Agreement. Specifically, both Counsels have been directed not to undertake any independent verification of the representations made by the other in the course of exchanges of correspondence, conferences and memoranda. Counsel have been instructed not to request, schedule or conduct depositions with respect to either party or any agent for a party, to conduct any further investigations or valuations. Both parties hereby absolve their respective counsel of and from any liability for their compliance with the foregoing instructions, each of them asserting their satisfaction that they possess sufficient independent knowledge to knowingly and confidently express their conclusion that the various agreements herein made are fair and reasonable under all the circumstances and fully satisfy their respective needs.”
The release of attorneys’ clause is largely pointless as it is practically impossible to sue a divorce lawyer for legal malpractice.
“[A] reviewing court will not review [a divorce] counsel’s conduct which involves an exercise of judgment, discretion, strategy, or trial tactics.” Person v. Behnke, 611 NE 2d 1350 – Ill: Appellate Court, 4th Dist. 1993
Judgment, discretion, strategy or trial tactics? That’s everything.
Even if a malpractice court found a divorce attorney liable, they would still have to redo the entire trial to prove damages. It’s never worth it to put on a fake trial about what the real trial would have looked like.
“To prove [a] legal malpractice claim, plaintiff had to establish that [plaintiff] would have received a larger share of the marital estate as a result of the divorce proceedings but for [the defendants’] malpractice.” Weisman v. Schiller, Ducanto & Fleck, Ltd., 368 Ill.App.3d 41, 306 Ill.Dec. 29, 856 N.E.2d 1124 (2006)
Divorces never end, so there are no final damages to be determined in a divorce malpractice suit. Virtually everything is modifiable in an Illinois divorce except for property distribution.
“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)
“Although property settlement agreements are generally favored, an agreement may be vacated if it is unconscionable or if it is the product of fraud or coercion on the part of either party. Fraud exists where one party’s knowing and material misrepresentations induce detrimental reliance by the other party. Fraudulent concealment consists of affirmative acts or misrepresentations intended to exclude suspicion or prevent injury. However, nondisclosure of a material fact is in essence a misrepresentation.’” In re Marriage of Palacios, 275 Ill. App. 3d 561, 566 (Ill. App. Ct. 1995)
Do not worry about signing a waiver regarding your divorce attorneys. The alternative is that your divorce attorney will do every possible due diligence effort…and bill you for it. If something goes wrong, you are better off just taking your ex back to court than taking your divorce lawyer to court.
Waivers and releases are probably not important in 99% of divorce cases. However, when a waiver or release is important…it is really important. Please understand 100% of your Marital Settlement Agreement whether you are about to sign or have already signed.