Posted on August 15, 2020

What Is A Declaratory Judgment In An Illinois Divorce?

If law was easy, anyone could just read the law and say, “this is what this means for my case.” Everyone knows that is NOT how the law works.

Instead, two sides who cannot negotiate a resolution to their dispute take their dispute to a judge who then applies the law with the help of the parties arguments regarding the facts and how the law applies to them. 

The legal process is not easy.  

Every single judicial decision does not need to happen at a final trial, though. In Illinois, a lawyer can ask for single issue to be decided in advance of trial in the hopes that that issue will clarify and narrow the scope of the final trial.  In Illinois, this is called asking for a “declaratory judgment”

What Is A Declaratory Judgment?

“A declaratory judgment is one which simply declares the rights of the parties… the opinion of the court on a question of law, without ordering anything to be done” Black’s Law Dictionary (10th ed. 2014)

The important thing to remember about a declaratory judgment is that unlike any other court order it DOES NOT order someone to do something.  Rather, a declaratory judgment’s duty is resolve a point of controversy, to clarify a legal issue.

“The trial court may grant declaratory relief pursuant to section 2-701 of the Code of Civil Procedure.” Hess v. Miller, 2019 IL App (4th) 180591

“The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy.” 735 ILCS 5/2-701(a)

A lawyer and a judge’s job is to apply the law to the facts.  If there’s a legal issue that is not clear, then any party can ask for a declaratory judgment as to that issue. When the issue in controversy is resolved, the case becomes much narrower, simpler and easier to resolve either by negotiation or evidentiary trial.

Declaratory judgments allow “the court to take hold of a controversy one step sooner than normally — that is, after the dispute has arisen, but before steps are taken which give rise to claims for damages or other relief. The parties to the dispute can then learn the consequences of their action before acting.”‘ Kaske v. City of Rockford, 96 Ill.2d 298, 306, 70 Ill.Dec. 841, 450 N.E.2d 314 (1983), quoting Buege v. Lee, 56 Ill. App.3d 793, 798, 14 Ill.Dec. 416, 372 N.E.2d 427 (1978), quoting Ill.Ann.Stat., ch. 110, par. 57.1, Historical & Practice Notes, at 132 (Smith-Hurd 1968).

So, a motion for a declaratory judgment is a useful tool for any Illinois lawyer trying to resolve a case in the most efficient manner possible.

Why Would An Illinois Divorce Require A Declaratory Judgment?

Declaratory judgments are actually very common in divorce cases. Almost every divorce that involves a prenuptial agreement will have a motion for declaratory judgment filed to determine if the parties should follow some or all of the clauses in a prenuptial agreement or use the standard default Illinois Marriage and Dissolution of Marriage Act.

A prenuptial agreement is not the law…but a prenuptial agreement is an agreement that substitutes for the law. Either party to a divorce can ask the court to declare the prenuptial agreement as the governing law in the divorce case…or just a worthless piece of paper.

An Illinois court must either validate or invalidate the prenuptial agreement in whole or in part, through a declaratory judgment.

A motion for declaratory judgment is an appropriate vehicle for determining the validity of a prenuptial agreement. Berger v. Berger, 358 Ill.App.3d 651 (1st Dist. 2005); In re Marriage of Byrne, 179 Ill.App.3d 944 (1st Dist. 1989).

“Undoubtedly, the degree of control the agreement ultimately exerts over the parties’ rights in the underlying dissolution proceeding depends on the validity and final construction of its provisions. That construction will determine whether the agreement controls various facets of the parties’ rights in the pending dissolution proceeding. Construing the agreement will indeed terminate a significant part of the parties’ controversy. No question of whether the agreement’s provisions provide the controlling authority over the parties’ dissolution rights will remain.“ In Re Marriage of Best 228 Ill. 2d 107, 118 (Ill. 2008)

It gets even trickier if a prenuptial agreement says “this matter will be decided according to the laws of (insert state here).”  It is common practice for prenuptial agreements to include this clause because the lawyer who wrote the prenuptial agreement is only licensed to prepare prenuptial agreements for the state the lawyer is licensed in.

But, couples often move to (and get divorced in) other states.  This means the state the divorce is occurring in must read and interpret the divorce laws of the state the prenuptial agreement has selected.  These laws are likely to be unfamiliar to the lawyers and judge in the divorce and any of those parties may request clarification of these out-of-state laws via a motion for declaratory judgment.

Furthermore, there are all kinds of issues that can come up in a divorce that can be clarified in a piece-meal fashion.

Is an out-of-court agreement between the parties binding?

Is a particular asset a gift or is it marital property and, thus, divisible?

The singular issues in a divorce are endless. But, declaratory judgments usually aren’t used to resolve small, individual divorce issues.

Instead, Illinois divorce lawyers usually schedule a pretrial regarding these matters and simply get a recommendation from the judge as to how the judge would rule if that matter was put before the judge.  For simple issues, a judge’s recommendation is as good as a declaratory judgment and the parties make an even more efficient decision than filing a declaratory judgment: the parties just adopt the court’s recommendation.

Failing that, all the matters can simply be brought before the court at trial.  But, multiple issues and multiple judicial decisions (which always interact) make for a real gamble in the courtroom. 

Judges love to let one party win on one issue and let the other party win on another issue for fairness (or at least the appearance of fairness).  A declaratory judgment in advance of trial can let  a litigant win on all counts without the risk of the judge “splitting the baby.”

What A Declaratory Judgment Is Not

It may appear that a declaratory judgment is a way to request the court to do something before trial. That is NOT what a declaratory judgment does. A declaratory judgment just makes clear what rights each party has so they can subsequently request the court to order someone to do something.

Temporary motions provide temporary relief. Declaratory judgments provide clarification of rights upon which one can seek such relief, temporary or otherwise.

“If further relief based upon a declaration of right becomes necessary or proper after the declaration has been made, application may be made by petition to any court having jurisdiction for an order directed to any party or parties whose rights have been determined by the declaration to show cause why the further relief should not be granted forthwith, upon reasonable notice prescribed by the court in its order.” 735 ILCS 5/2-701(a)

Pretrials can turn into partial final judgments via declaratory relief.

Getting a declaratory judgment “requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on a mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events.” Underground Contractors Ass’n v. City of Chicago, 66 Ill. 2d 371, 375 (1977)

Divorces do not always end when the Judgment of Dissolution of Marriage is entered. Illinois divorce courts may continue to make decisions post-judgment.

“The final decree of a court of record in every civil case is a conclusive adjudication after the passage of 30 days from the date of its rendition. However, a court in a divorce proceeding retains jurisdiction for the purpose of enforcing its decrees.” Waggoner v. Waggoner, 398 NE 2d 5 – Ill: Supreme Court 1979

The requested relief is rarely declaratory when the rights of the parties have already been established via the final orders.

“As the Restatement (Second) of Judgments explains, ‘As is the case with other types of action, an action for a declaration may not be employed to relitigate a claim already adjudicated…Neither will a declaratory judgment be available to assert technical defects or mere error in a prior judgment.” The Restatement, however, does note that declaratory judgment actions ‘may be employed to determine the meaning of an ambiguous judgment.’ In that instance, the trial court’s declaration ‘would not derogate from the binding effect of the prior decision, but would specify what was decided.” In re Marriage of Bolnick, 2024 IL App (1st) 230014-U quoting Restatement (Second) of Judgments § 33, Comment a (1982)

Therefore, post-judgment, motions for declaratory relief are actually motions to clarify.

If you have a case that might need a motion for declaratory judgment, contact my Chicago family law firm to discuss your case 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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