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Posted on April 24, 2021

What is NOT Modifiable in an Illinois Divorce

Divorce cases are about finally terminating a long-dying relationship and finally unwinding the the married parties’ joint affairs.

Eventually, a final hearing is performed which awards all assets to each party, determines maintenance and child support and allocates parenting time and parental responsibilities to each parent (if applicable).

Those final orders are memorialized in writing and filed with the court.

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge or if a circuit court rule requires the prevailing party to submit a draft order, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record. Orders and judgments may be prepared, presented, and signed electronically, if permitted by the Supreme Court.” Ill. Sup. Ct. R. 272

Hopefully, that final order will be sufficiently acceptable for all parties in that they will abide by the orders strictures or deviate from them by agreement.

But the parties to a divorce may revisit almost all of the aspects of their divorce at any time.

The only thing that cannot be modified in a post-judgment divorce is the division of assets.

“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)

“[P]roperty rights created by a judgment of dissolution become vested when the judgment is final, and a trial court lacks general jurisdiction to modify an order affecting these rights.” In re Marriage of Benson, 2015 IL App (4th) 140682 (citations omitted)

But, even a final order on distribution of property in an Illinois divorce can be appealed.

“A judgment is final for appeal purposes if it determines the litigation on the merits or some definite part thereof so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.” In re Marriage of Verdung, 535 NE 2d 818 – Ill: Supreme Court 1989

But the opportunity to modify a final divorce order regarding division of assets via appeal closes after 30 days.

“The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from” Ill. Sup. Ct. R. 303(a)(1)

Child Support and Maintenance (formerly known as alimony) can always be modified on an on-going basis

“[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)

Maintenance, however, can be deemed non-modifiable if the parties so agree. “[T]he maintenance provision allowed the parties to make maintenance as a whole nonmodifiable or to select a single aspect of the obligation to make nonmodifiable.” In re Marriage of Dynako, 2020 IL App (1st) 192116

Parenting issues can always get modified after an Illinois divorce.

“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)

Custody and parenting time disputes all expire after the child turns 18. “For the purposes of this article, “child custody or allocation of parental responsibilities proceeding” means an action affecting child custody or allocation of parental responsibilities, or visitation, or parenting time….“Child” means a person who has not attained the age of 18.” Ill. Sup. Ct. R. 900

While almost anything is modifiable in a divorce there are certain legal concepts that make things not modifiable or at least less modifiable.

Res Judicata And Collateral Estoppel In An Illinois Divorce

Res Judicata is “a thing adjudicated. Once a lawsuit is decided, the same issue or an issue arising from the first issue cannot be contested again.” Black’s Law Dictionary (10th ed. 2014)

“The doctrine of res judicata is based on requirements of justice and public policy and reflects a public policy that requires an end to litigation after each party has had a full opportunity to present all pertinent facts.” Palya v. Palya, 409 NE 2d 133 – Ill: Appellate Court, 3rd Dist. 1980

“Res judicata is separated into two distinct doctrines: (1) true res judicata, which is known as ‘claim preclusion,’ and (2) collateral estoppel, which is known as ‘issue preclusion.’ ” Hayes v. State Teacher Certification Board, 359 Ill. App. 3d 1153, 1161 (2005) (citing People v. Moore, 184 Ill. App. 3d 102, 104 (1989), rev’d on other grounds, 138 Ill. 2d 162 (1990))

Res Judicata and Collateral Estoppel are principles devoted to “promoting judicial economy and preventing repetitive litigation.” Id. (citing Arvia v. Madigan, 209 Ill. 2d 520, 534 (2004)).

A matter in a divorce can be barred from proceeding due to the principle of res judicata when “(1) there was a final judgment on the merits rendered by a court of competent jurisdiction; (2) there was an identity of cause of action; and (3) there was an identity of parties or their privies.” Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996) (citing Downing v. Chicago Transit Authority, 162 Ill. 2d 70, 73-74 (1994)). “The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action.” Id. (citing People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992), and Kinzer v. City of Chicago, 128 Ill. 2d 437, 446 (1989)). “Res judicata precludes a party from taking more than one bite out of the same apple.” Hayes, 359 Ill. App. 3d at 1161. Furthermore, res judicata serves to bar “ ‘all matters that were offered to sustain or defeat the claim in the first action, as well as all matters that could have been offered for that purpose.’ ” Id. (quoting Arvia, 209 Ill. 2d at 533).

Collateral Estoppel is distinct from true Res Judicata in that it is narrower and more easily understood. “The doctrine of collateral estoppel provides that an issue which has been addressed by a court of competent jurisdiction cannot be relitigated in a later action between the same parties or their privies in the same or a different cause of action.” Simcox v. Simcox, 546 NE 2d 609 – Ill: Supreme Court 1989

So, under the theory Res Judicata, you cannot file for divorce after you’ve already been divorced. However, when things about your divorce change Res Judicata will not protect you from requesting some kind of modification based on those changes.

“The [divorce] decree is res judicata as to the facts which existed at the time it was entered but not as to facts arising thereafter.” Nye v. Nye, 105 NE 2d 300 – Ill: Supreme Court 1952

“It is also true that a divorce decree, including custody provisions, is normally res judicata as to facts existing at the time of its entry, but the decree in respect to custody is temporary in nature and may be changed from time to time as the best interests of the child require.” Randolph v. Dean, 327 NE 2d 473 – Ill: Appellate Court, 3rd Dist. 1975

One of the most common Res Judicata and Collateral Estoppel defenses are when a father denies paternity after having been adjudicated the child’s father in a previous proceeding.

Res Judicata And Collateral Estoppel When A Divorce Case Is Moved To Another State

Res Judicata is most useful when a party moves to another state and files a post-judgment divorce motion in that state in the hopes to undo a ruling they didn’t like from the last judge in the prior state.

“[J]ust as the doctrine of res judicata bars parties from relitigating a cause of action in the same State, it, through the constitutional provision, bars them from relitigating the cause of action in a different State.” Finley v. Kesling, 433 NE 2d 1112 – Ill: Appellate Court, 1st Dist. 1982

A new state ‘s jurisdiction means a new lawsuit, but that does not mean the same issues get heard again.

“The related but narrower theory of collateral estoppel applies when a party participates in two separate cases arising from different causes of action, and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit.“ Vance v. Chandler, 597 NE 2d 233 – Ill: Appellate Court, 3rd Dist. 1992

How To Invoke The Res Judicata Defense In An Illinois Divorce

Invoking Res Judicata to bar a modification or relitigation of previously decided issues requires that “[t]he party raising the defense of res judicata has the burden of establishing the identity of the parties, the precise issues, and the judgment of the former action.” In re Marriage of Wade, 511 NE 2d 156 – Ill: Appellate Court, 4th Dist. 1987

Those elements should be easily proven by simply bringing the previous court’s pleadings to the current court’s attention.

How To Argue That A Clause Of Your Divorce Decree Is Non-Modifiable

If you and your spouse agreed to something, you cannot just disagree on that point at a later date. You have both already stipulated to that issue.

“A stipulation is an agreement between parties or their attorneys with respect to the business before the court, and, generally, matters which have been stipulated to by the parties cannot be disputed on appeal….While a stipulation need not follow any particular form, it must be clear, certain, and definite in its material provisions, and it is essential that it be assented to by the parties or those representing them….Courts look with favor upon stipulations designed to simplify, shorten, or settle litigation and save costs to parties unless they are illegal or contrary to public policy.” In re Marriage of Galen, 157 Ill. App. 3d 341, 344 (1987).

That stipulation is going to have to be crystal clear to the point of saying “this is not-modifiable” for the court to truly adopt it. But, it can’t hurt to bring this argument up if you’re trying to prevent a modification.

If you’re trying to keep your ex-spouse from modifying the terms of your divorce, you are going to need to be familiar with some very esoteric concepts. Contact my Chicago, Illinois family law firm today to learn more about defenses you can invoke to keep your divorce decree in its current form.

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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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