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Posted on June 25, 2022

What If Something Is Missing In An Illinois Divorce?

A divorce is a lot to process. It often feels like drinking from a firehose. In an Illinois divorce have to account for all your income, verify your spouse’s income, divide all your assets, arrange a parenting schedule, assign each parent decisions and financial responsibilities, settle on a child support and/or maintenance amount.

Meanwhile, you have to run the same hectic life you had before you were married…only now you don’t have a cooperative partner.

Then you have to imagine your life in the future, what obligations you may have to your spouse and what obligations your spouse should have towards you. Practically, it is impossible to create a perfect contract to govern your future with someone you no longer even like.

You and your spouse are going to forget something in your divorce no matter how many times you review the final documents. You will forget something no matter how many times your attorney double checks the final settlement documents with you.

Perfection is not required on final Illinois divorce documents because most things in an Illinois divorce can be revisited…but some issues are a one shot deal.

Creating a perfect Marital Settlement Agreement or Allocation of Parenting Time and Parental Responsibilities is a noble goal but it is common for courts to step in when an agreement neglects a matter.

“If the parties had been more careful in drafting their agreement, many of the issues presented in this case would have been resolved by the language of the agreement.” In re Marriage of Golden, 831 NE 2d 1177 – Ill: Appellate Court, 2nd Dist. 2005

If Something Is Missing In Your Illinois Divorce Documents

Illinois divorces have 4 broad categories: 1) Maintenance (formerly known as alimony), 2) Child Support, 3) Parenting Time and 4) Division of Marital Assets.

It can be argued that the failure to include any of these matters in an Illinois final divorce decree makes the agreeement void.

“When any essential term of an agreement is left to future negotiation, there is no binding contract.” Hintz v. Lazarus, 58 Ill. App. 3d 64, 67, 373 N.E.2d 1018, 1020 (1978).

At the very least, “maintenance is an essential term of the contract.” In re Marriage of Haller, 2012 IL App (5th) 110478, ¶ 28

Not every little thing needs to be in a contract for the contract to be enforceable.

“It is not necessary that the contract provide for every collateral matter or every possible future contingency which might arise in regard to the transaction. It is sufficiently definite and certain to be enforceable if the court is enabled from the terms and provisions thereof, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do.” Morey v. Hoffman, 12 Ill. 2d 125, 130-31, 145 N.E.2d 644, 647-48 (1957)

Even if forgotten, the first three categories of a divorce decree: maintenance, child support and parenting time, are always modifiable in the event of a substantial change in circumstances.

[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)

“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)

If an issue was forgotten and, therefore, not included in the final divorce documents…and that issue becomes contentious, there will be a requirement that the missing issue is now a substantial change in circumstances.

There is no precise formula for a substantial change in circumstances.” In re Marriage of Solecki, 2020 IL App (2d) 190381

“We hadn’t remembered to include this fact in our agreement and now it has become an issue” is likely to be found to be a substantial change.

The counter-argument to that is “that nothing has changed substantially or otherwise, we just forgot”

“The party seeking modification bears the burden of proving this change.” In re Marriage of Logston, 469 NE 2d 167 – Ill: Supreme Court 1984

It used to be a defense to a change that “we should have thought of this before” but that is no longer the case for modifying child support and maintenance in Illinois.

Both child support and maintenance can be changed “upon a showing of a substantial change in circumstance. [But a c]ontemplation or foreseeability of future events shall not be considered as a factor or used as a defense in determining whether a substantial change in circumstances is shown, unless the future event is expressly specified in the court’s order or the agreement of the parties incorporated into a court order. The parties may expressly specify in the agreement incorporated into a court order or the court may expressly specify in the order that the occurrence of a specific future event is contemplated and will not constitute a substantial change in circumstances to warrant modification of the order.” 750 ILCS 5/501(a)(1), 750 ILCS 5/501(a)(5)

Parenting issues get changed on an even more loosy-goosy standard in an Illinois modification action.

“The law is clear that only some change in circumstances of any nature that would justify equitable action by the court in the best interests of the child is required.” (Emphasis in original) In re Marriage of Singleteary, 293 Ill. App. 3d 25, 35 (1997)

The division of assets and debts in an Illinois divorce is another animal altogether. What is forgotten usually remains forgotten.

Forgotten Assets In An Illinois Marital Settlement Agreement

“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)

Martial Settlement Agreements which govern the division of debts and assets usually contain paragraphs that resolve the possibility of a forgotten debt.

For example, this clause resolves the issue of any unallocated asset

“Unless otherwise stated in this Agreement, each party shall keep any assets in their sole name and control.”

For debts, this clause resolves any undisclosed debts (and sticks them with the non-discloser)

“Unless otherwise stated in this Agreement, each party shall be solely responsible for any and all debts and liabilities in their name and control. Each party shall be responsible for any and all credit card debt currently in his or her name, and they shall indemnify and hold the other party harmless from the same. The party responsible for a debt or liability shall indemnify and hold the other party harmless from the same. Neither party shall incur any debt in the name of the other after signing this Agreement.”

Trying to include a forgotten asset or a debt is definitely a modification…and it is not allowed.

“[A] court cannot alter, change or modify the existing terms of a contract or add new terms or conditions to which the parties do not appear to have assented, write into the contract something which the parties have omitted or take away something which the parties have included.” Gallagher v. Lenart, 854 N.E.2d 800, 807 (Ill. App. Ct. 2006)

A trial court “does not have jurisdiction to engraft new obligations onto a dissolution judgment or otherwise equitably modify it.” Benson, 2015 IL App (4th) 140682

When an asset is forgotten (no one ever cares about an ex-spouse’s secret debt) and the parties did not include clauses in their Marital Settlement Agreement to allocate anything not listed by default, then a modification is not being requested but rather the spouse discovering the missing asset will be asking to void the judgment entirely.

Motions to vacate are done under 735 ILCS 2-1401 of the Illinois Code of Civil Procedure.

“Section 2-1401 of the Code provides a comprehensive statutory mechanism for obtaining relief from final judgments or orders that are older than 30 days…The purpose of a section 2-1401 petition is to provide a statutory method to bring before the court facts not appearing in the record that, if known at the time of the entry of the judgment, would have prevented its rendition.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160 – Ill: Appellate Court, 2nd Dist. 2022

An asset which was missing from the Marital Settlement Agreement whether there was a clause for assets not-included assets or not, must be missing because of fraud on the part of one spouse in order to merit an order to vacate the order under 2-1401.

“A petition filed under section 2-1401 may present either a factual or legal challenge to a final judgment or order. Where the petition raises a factual challenge to a judgment, as is the case here, the petitioner must, in order to be entitled to relief, affirmatively plead specific factual allegations to support each of the following three elements: (1) the existence of a meritorious claim, (2) due diligence in presenting that claim in the original action, and (3) due diligence in seeking relief under section 2-1401. Fraud, if proved, is an appropriate ground for vacating or modifying a judgment of dissolution of marriage. When a section 2-1401 petition alleges fraudulent concealment, that issue is analyzed in the context of the due diligence requirement. Indeed, fraudulent concealment of evidence is a factor in determining whether a section 2-1401 petitioner exercised due diligence in discovering and presenting the ground for relief. When a section 2-1401 petition is premised on newly discovered evidence, “the petitioner must show the new evidence was not known to [him or] her at the time of the proceeding and could not have been discovered by the petitioner with the exercise of reasonable diligence.”  Stated another way, the evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment.” MARRIAGE OF BRUBAKER v. Brubaker, 2022 IL App (2d) 200160 – Ill: Appellate Court, 2nd Dist. 2022 (citations and quotation omitted)

When is the failure to include an asset a fraud? Not when a spouse simply forgets to tell the other spouse about the asset.

“A party in possession of his mental faculties is not justified in relying on representations made when he has ample opportunity to ascertain the truth of the representations before he acts. When he is afforded the opportunity of knowing the truth of the representations he is chargeable with knowledge. If one does not avail himself of the means of knowledge open to him he cannot be heard to say he was deceived by misrepresentations.”  Lagen v. Lagen, 14 Ill. App. 3d 74, 81 (1973)).

A spouse has to prove that the other spouse knew about the asset and purposely did not disclose that asset.

“[W]hen an opponent suppresses information, as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the opponent’s fault and not the inquirer’s negligence…To prove fraud, the complainant must show that the other party falsely stated a material fact or concealed a material fact that he had a duty to disclose; the fact was intentionally misstated or concealed to induce the complainant to act; and that the complainant detrimentally relied upon the misstatement or the nonexistence of the fact. The complainant bears the burden of proving fraud by clear and convincing evidence.” In re Marriage of Travlos, 218 Ill. App. 3d 1030, 1035 (1991)

Proving that someone didn’t just forget to disclose an asset is really not so hard.

It is enough for a court to make a finding of fraud 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

A better solution to the forgotten asset problem is to include a “finders keepers clause” which would read as follows:

“Any asset owned by either party on the date of entry of this agreement with a value of over $ 1000 and not disclosed in this agreement shall automatically become the property of the other party without regard as to whether the property could be deemed marital or non-marital. Property shall be transferred by the non-disclosing party upon written notice from the other party. If the party who held, controlled and/or owned the undisclosed asset is no longer in control or possession of the asset that party will pay to the other party the approximate value of the asset upon the date of the entry of this agreement. The party requesting the undisclosed asset or the asset’s value will then be allowed to reopen discovery to determine what if any other undisclosed assets are or were in the possession, control or ownership of the party who did not disclose the asset.”

Purposely Leaving Matters Out Of A Divorce Settlement In Illinois

Illinois divorce courts want to resolve EVERYTHING at once.

“Illinois law encourages resolution of all issues ancillary to dissolution, as well as dissolution itself, in a single proceeding, for reasons of certainty, financial security and judicial economy.” In re Marriage of Kenik, 536 NE 2d 982 – Ill: Appellate Court, 1st Dist. 1989 (citations omitted)

“Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for the allocation of parental responsibilities, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” 750 ILCS 5/401(b)

A lot of times, some issues simply do not need to be decided at the moment of divorce. The parties can agree to reserve those matters for a later date.

“The court shall enter a judgment for dissolution that reserves any of these issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.” 750 ILCS 5/401(b)

The modifiable nature of child support, maintenance and custody makes them easy issues to reserve. You can reserve them because…why not, they can be dealt with later anyways.

Again, distribution of marital assets is another animal. Illinois divorce courts abhor reserving this issue.

“In distributing property, 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.

“If a court enters a judgment of dissolution but reserves the adjudication of marital property rights, the court may well be called upon at a later time to adjudicate marital property rights which have become entangled with the supervening rights of third parties.” In re Marriage of Britton, 490 NE 2d 1079 – Ill: Appellate Court, 5th Dist. 1986

Failure to distribute marital property makes an Illinois divorce unfinished and, therefore, unappealable.

“Failure by the trial court to make a ruling on the appropriate distribution of the pension plan would make the trial court’s judgment not appealable because it would not be a final judgment disposing of all matters.” In re Marriage of Blackston (1994), 258 Ill.App.3d 401, 407, 196 Ill.Dec. 606, 630 N.E.2d 541

“Supreme Court Rule 303(a)(1) states that a notice of appeal must be filed within 30 days of the entry of the final judgment appealed from (or within 30 days after entry of an order disposing of a timely posttrial motion directed against the judgment) (155 Ill.2d R. 303(a)(1)). Jurisdiction is conferred upon this court only through the timely filing of a notice of appeal, following a final judgment order.” In re Marriage of Capitani, 858 NE 2d 547 – Ill: Appellate Court, 2nd Dist. 2006

Matters Not Expressly Addressed In An Illinois Divorce Settlement

Everything in a post-judgment divorce is either enforcement or modification.

If something is missing from a divorce settlement, it obviously cannot be enforced.

If something is missing from a divorce settlement, the court doesn’t necessarily have jurisdiction to suddenly include the matter in the settlement.

“A strong presumption exists against provisions that could easily have been included in the [marital settlement] agreement but were not.” In re Marriage of Sweders, 296 Ill. App. 3d 919, 922 (1998)

“[T]here is a presumption against provisions that easily could have been included in a contract but were not. ” Thompson v. Gordon, 241 Ill. 2d 428, 449 (Ill. 2011)

“We conclude the MSA’s silence concerning any…award [to a party] evidences the parties’ intent not to include such an award in the property division.” In re Marriage of Reicher, No. 2-20-0454, 16 (Ill. App. Ct. 2021)

Courts can decide to include matters into a preexisting contract if they deem it fair. However, material matters are important enough to be included in an existing contract. If the matter is important to either party (and it is important if the party is going to court about the matter) then the matter is material.

Material terms of a contract should NOT be added or altered, normally.

“[T]he general rule [is] that a settlement agreement may not be altered as to material terms without the consent of both parties, nor may a court on its own motion or accord alter such an agreed order.” EXCHANGE NAT’L BANK v. Sampson, 542 NE 2d 1303 – Ill: Appellate Court, 2nd Dist. 1989 (citations ommited)

“It is the function of the court to determine the intent of the parties and to execute it, but it is not the function of a court to modify the document or create new terms different from those to which the parties have agreed.” Northern Trust Co. v. BRENTWOOD N. NURSING CTR., INC., 588 NE 2d 467 – Ill: Appellate Court, 2nd Dist. 1992

If an Illinois court deems it fair and necessary, an Illinois divorce court can include a material term into a divorce settlement if the term is not already expressly stated…but, instead, implied. Again, courts usually will not re-write contracts.

“It is not uncommon for a court to supply a missing material term, as the reasonable conclusion often is that the parties intended that the term be supplied by implication. However, where the subject matter of the contract has not been decided upon and there is no standard available for reasonable implication, courts ordinarily refuse to supply the missing term.” Academy Chicago Publishers v. Cheever, 578 NE 2d 981 – Ill: Supreme Court 1991

If it was an agreement not a pure order, courts are even more hesitant to add missing terms.

“We will not add terms to an agreement when the agreement is silent about those specific terms. We most especially will not add terms to an agreement when the added language would clearly change the plain meaning of the agreement.” Frederick v. Prof. Truck Driver Trg. School, 328 Ill. App. 3d 472, 480 (Ill. App. Ct. 2002)(citation omitted)

Illinois divorce courts have ruled that they can extend maintenance if the matter was not expressly addressed in the Marital Settlement Agreement.

“Where the court has not expressly reserved jurisdiction to extend the term of a maintenance award but has remained silent on the subject, it would appear that the court retains authority to extend the maintenance beyond the original term in view of the court’s power under this section to modify maintenance judgments.” In re Marriage of Cannon, 477 NE 2d 716 – Ill: Appellate Court, 4th Dist. 1985 (citations omitted), Rice v. Rice (1988), 173 Ill.App.3d 1098, 1102, 123 Ill. Dec. 630, 633, 528 N.E.2d 14, 17

Most divorces with children occur before the children are in college. At that point in time, the parents’ needed contribution to college expenses is not even known. So, the issue of college expenses is usually expressly reserved in the Marital Settlement Agreement or it can be brought up without a reservation.

“The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the educational expenses of any child of the parties.” 750 ILCS 5/513(a)

The request for contribution to college expenses, whether reserved or brought as a new issue is only retroactive to the date of the filing of the petition.

“The establishment of an obligation to pay under this Section is retroactive only to the date of filing a petition. The right to enforce a prior obligation to pay may be enforced either before or after the obligation is incurred.” 750 ILCS 5/513(k)

It is very common to revisit a divorce settlement. It is common to find vague and ambiguous language in an Illinois divorce settlement. It is common to realize that important terms were left out of your agreement. This is why pencils have erasers (and vice versa)…in order to fix mistakes.

If you have a mistake you want to fix in your Illinois divorce, contact my Chicago, Illinois family law firm to discuss your matter with an experienced Chicago divorce lawyer.

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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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