Divorce – Separation Agreements – Illinois

Note:  This summary is not intended to be an all inclusive discussion of the law of separation agreements in Illinois, but does include basic and other provisions.

General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective immediately, or may be entered into after the divorce is filed to settle the case. Provisions concerning property division, maintenance of either of them, and support, custody and visitation of their minor childre.  With the exception oif provisions relating to minor chilren, the partie’s agreement is binding on the court unless, under the circumstances, the court finds the provisions to be unconscionable.

Statutes:

Illinois Compiled Statutes
CHAPTER 750
Families
PART V
Illinois Marriage and Dissolution of Marriage Act.

Agreement:

(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the  dissolution  of  their marriage,  the  parties  may  enter  into  a  written  or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and  visitation of their children.

(b)  The  terms  of  the  agreement,  except those providing for the support, custody and visitation of children, are binding upon the  court unless  it  finds,  after  considering the economic circumstances of the parties and any other relevant evidence  produced  by  the  parties,  on their  own  motion  or  on  request  of the court, that the agreement is unconscionable.

(c)  If the court finds the agreement unconscionable, it may request the parties to submit a revised agreement  or  upon  hearing,  may  make orders  for  the disposition of property, maintenance, child support and other matters.

(d)  Unless the agreement provides to the contrary, its terms  shall be  set  forth  in  the  judgment,  and  the parties shall be ordered to perform under such terms, or if the agreement provides  that  its  terms shall  not be set forth in the judgment, the judgment shall identify the agreement and state that the court has approved its terms.

(e)  Terms  of  the  agreement  set  forth  in  the   judgment   are enforceable  by  all  remedies  available for enforcement of a judgment, including contempt, and are enforceable as contract terms.

(f)  Except for terms concerning the support, custody or  visitation of  children,  the judgment may expressly preclude or limit modification of terms set forth  in  the  judgment  if  the  agreement  so  provides.  Otherwise, terms  of  an  agreement  set  forth  in  the  judgment  are automatically modified by modification of the judgment.   750 ILCS 5/ Sec. 502

Case Law:

Before a divorce may be granted in the State of Illinois, there must be a judicial determination that one of the parties is at fault. The parties may not make this determination for themselves; they may, however,  determine how they will divide their property and arrange for the support of their children and themselves. James v. James (1958), 14 Ill.2d 295, 152 N.E.2d 582

The settlement of the property and support rights by the parties is condoned and encouraged. Gaddis v. Gaddis (1974), 20 Ill. App.3d 267, 314 N.E.2d 627

When the parties enter into a written property settlement agreement after each has been made aware of the extent of the other’s property and is fully aware of the provisions of the agreement, and the agreement has been approved by the court and has been incorporated into the decree, the agreement is considered conclusive and is as enforceable against the parties as if the court had made the determination. Gaddis v. Gaddis (1974), 20 Ill. App.3d 267, 314 N.E.2d 647.

When a party seeks to vacate a property settlement incorporated in a judgment of dissolution of marriage, all presumptions are in favor of the validity of the settlement.  In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 214 (1994).

A settlement agreement can be set aside if it is shown that the agreement was procured through coercion, duress or fraud, or if the agreement is unconscionable.  In re Marriage of Flynn, 232 Ill. App. 3d 394, 399 (1992).