Posted on October 28, 2023

Waiver In An Illinois Divorce

Illinois divorce courts enter orders every day. Do people follow them? Divorce lawyers and judges don’t find out until someone complains that the order was not followed. A lot of things can happen between the entry of the order and that complaint.

Sometimes the lack of compliance is NOT the fault of the order violator but rather the result of the other party providing an effective waiver of the enforcement of the order. In such cases, the violating party can invoke (if they’re lucky) the waiver doctrine as a defense (discussed later).

Typically, failure to follow an Illinois divorce court’s order is automatically the fault of the party who is in violation of the order to such an extent that they are in contempt of court.

“A party who understands the court’s order but chooses to ignore the mandate is guilty of contempt of court.” Killion v. City of Centralia, 381 Ill. App. 3d 711, 715 (2008)

Holding a violator in contempt is easy. Just prove the order existed and the order was violated willfully. “The existence of an order of the court and proof of willful disobedience of that order are essential to any finding of indirect contempt.” In re Marriage of Spent, 342 Ill. App. 3d 643, 653, 796 N.E.2d 191, 200 (2003)

The party enforcing the order doesn’t even need to prove that the violation was willful. The violator must prove that they were not willfully violating the order.

“[T]he burden shifts to the contemnor, who 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.

The actions of the party enforcing the order are NEVER discussed in a contempt action.

Sometimes, the actions of the party enforcing the order can provide the order violator with the defense of waiver.

There may have been an agreement between the parties outside of the order. There may have been some powerful third force that prevented compliance with the order. There may have been….nothing. No enforcement, no follow up, no inquiry.

In cases where there was almost zero request for enforcement, it is possible that the party demanding enforcement now may have effectively provided their opponent with the defense of waiver.

“Waiver is either an express or implied voluntary and intentional relinquishment of a known and existing right. An implied waiver of a legal right may arise when conduct of the person against whom waiver is asserted is inconsistent with an intent to enforce that right. A party to a contract may not lull another into false assurance that strict compliance with a contract duty will not be required and then sue for noncompliance. The analysis properly focuses on the intent of the nonbreaching party and, if he has intentionally relinquished a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement.” Wells v. Minor, 219 Ill. App. 3d 32, 45 (Ill. App. Ct. 1991)

Unlike a defense of a contempt action, invoking a waiver defense is strictly the analysis of the party who wants to enforce the agreement’s actions. “Analysis of the applicability of waiver focuses on the intent of the nonbreaching party.” Wald v. Chicago Shippers Ass’n, 529 NE 2d 1138 – Ill: Appellate Court, 1st Dist. 1988

The party seeking to enforce may have provided an express waiver or an implied waiver. “Waiver can be either express or implied.” CONSTITUTION TRAIL, LLC v. STARBUCKS CORPORATION, Dist. Court, CD Illinois 2011

Often express waivers are found in the marital settlement agreement as a way of eliminating possible future issues.

Waiver is rarely explicit. It is rare that a party says “don’t pay me” or “don’t bother dropping the kids off this weekend.”

Waiver is usually implied. “Implied waiver may be found where an unexpressed intention to waive can be clearly inferred from the circumstances or [one party’s] conduct misled [the other party] into a reasonable belief that a waiver occurred.” Richelieu Foods v. New Horizon Warehouse Distrib., 67 F. Supp. 3d 903 – Dist. Court, ND Illinois 2014

Usually there is evidence of waiver by the nonbreaching party’s actions. The non-breaching party may send a “thumbs up” emoji when told child support will be late. The non-breaching party may say “I’m happy to keep the kids if you can’t take them.” “[W]aiver may be inferred when the party relinquishes a known right either expressly or by conduct that is inconsistent with an intent to enforce that right” Hamilton v. Williams, 573 NE 2d 1276 – Ill: Appellate Court, 2nd Dist. 1991

An implied waiver can be communicated by simply doing nothing. “[S]ilence, after he became aware of what he now terms improper conduct, must be regarded as a waiver of such impropriety.” McCoy & Sons, Inc. v. La Salle County, 363 NE 2d 442 – Ill: Appellate Court, 4th Dist. 1977, quoting  Seaton v. Kendall, 61 Ill. App. at 293 (1895)

If the parties are agreed as to the facts and waiver is clear, waiver is a valid defense in law.

“Where there is no dispute as to the material facts and only one reasonable inference can be drawn from them, the question of waiver is a matter of law.” Wells v. Minor, 219 Ill. App. 3d 32, 45 (Ill. App. Ct. 1991)

Usually, the nonbreaching party says, “well, I didn’t really mean to waive the terms of the last order.” In such cases, the parties must present evidence in order to determine if the waiver defense will be invoked.

“Waiver may be a question of law where there is no dispute as to the material facts, but if the facts necessary to support waiver are disputed or reasonable minds could draw different inferences from the evidence, it is a question of fact for the [finder of fact, the judge]” Richelieu Foods v. New Horizon Warehouse Distrib., 67 F. Supp. 3d 903 – Dist. Court, ND Illinois 2014

If the order being enforced was agreed, then there are spill-over effects of a waiver under contract law.

“A [divorce] settlement agreement is in the nature of a contract, and construction and enforcement of such agreements are governed by principles of contract law” Solar v. Wienberg, 274 Ill. App. 3d 726, 731 (Ill. App. Ct. 1995)

Once the waiver is found to be valid…the parties are stuck with the new agreement that waiver has now created. “The waiver of a provision of a contract is, in effect, a modification of the contract and, once a waiver is made, it cannot be revoked without the consent of the other party.” Hamilton v. Williams, 573 NE 2d 1276 – Ill: Appellate Court, 2nd Dist. 1991, citing 17 Am.Jur.2d Contracts § 658 (1991)

The solution to the lurking implied waivers is to include a clause in your agreements that forbids waivers.

“[N]on-waiver clauses are enforceable [in] Illinois, and may be strictly construed even when full compliance with the contract has not been required for a lengthy period of time.Roboserve, Inc. v. Kato Kagaku Co., 78 F.3d 266, 277 (7th Cir. 1996)(citations and quotations omitted)

No waiver clauses merely make the proofs harder. Even an agreement with a no waiver clause can be waived if the acts are deemed sufficient.

Nevertheless, it is still possible to waive such a clause. …[T]he weight of authority in Illinois holds that Waiver Only in Writing provisions can be waived by the words and deeds of the parties, so long as the waiver is proved by clear and convincing evidence.” Roboserve, Inc. v. Kato Kagaku Co., 78 F.3d 266, 277 (7th Cir. 1996)(citations and quotations omitted)

A divorce lawyer is both a litigator, a contract drafter…and a contract breaker. Make sure your divorce lawyer knows how to do all three. To speak with an experienced Illinois divorce attorney, contact my Chicago, Illinois family law firm today!

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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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