Sophisticated business people know that arbitration is much cheaper and simpler than litigation. Therefore, contracts will often include an arbitration clause that will pre-empt litigation by agreement of the parties.

Can arbitration be a substitute for divorce court proceedings in Illinois?

What Is Arbitration

Arbitration is “[t]he investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties, and called “arbitrators,” or “referees.”” Black’s Law Dictionary (10th ed. 2014)

Arbitration can only happen in Illinois if there was a written contract agreeing to arbitration.

“A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable” 710 ILCS 5/1

Soon-to-be married couples or already married couples may contract with each other under very specific terms.

“”Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1)

“A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.” 750 ILCS 10/3

That premarital agreement can include the terms upon which the parties will proceed with a divorce.

“Parties to a premarital agreement may contract with respect to:

…

(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” 750 ILCS 10/4

The Illinois Uniform Premarital Agreement Act’s choice of law and the catch-all “any other matter” would surely include the right to contract for arbitration.

How Do You Enforce Arbitration In An Illinois Divorce?

If one party won’t agree to arbitration, then the party who wants to proceed to arbitration must file a motion to compel arbitration.

“[O]nce the trial court determines that a valid arbitration agreement exists, the court must compel arbitration” Board of Managers of the Courtyards at the Woodlands Condominium Ass’n v. Iko Chicago, Inc., 183 Ill. 2d 66, 74 (Ill. 1998)

“[T]he question of arbitrability…court proceedings are governed in accordance with the Illinois rules of procedure, including the procedures set forth in section 2(a) of the Illinois Uniform Arbitration Act (Uniform Act) (710 ILCS 5/2(a)” Sturgill v. Santander Consumer USA, Inc., 48 NE 3d 759 – Ill: Appellate Court, 5th Dist. 2016

“Proceedings to compel or stay arbitration.) (a) On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” 710 ILCS 5/2(a)

If the parties don’t agree that there was a valid contract to arbitrate, they must ask the divorce judge.

“Whether a contract to arbitrate exists must be determined by the trial court, not an arbitrator.” Brookner v. General Motors Corp., 2019 IL App (3d) 170629, ¶ 17.

Proof of a contract is simple…show the divorce judge the contract.

“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Rule 1002 – Requirement of Original, Ill. R. Evid. 1002

The court should take special care in ordering arbitration because the divorce case will effectively disappear from divorce court and all the rights that can be exercised therein.

“A motion to compel arbitration is essentially a section 2–619(a)(9) motion to dismiss or stay an action in the trial court based on an affirmative matter, the exclusive remedy of arbitration.” Sturgill v. Santander Consumer USA, Inc., 2016 IL App (5th) 140380, ¶ 21

Waiver Of The Right To Arbitrate An Illinois Divorce

Entry into a contract for arbitration does not require both parties to arbitrate if they agree to waive arbitration later.

“[I]t is well-settled law that a contractual right to arbitrate can be waived like any other contract right” City of Centralia v. Natkin & Co., 630 NE 2d 458 – Ill: Appellate Court, 5th Dist. 1994

If a party acts like the arbitration clause doesn’t exist, then they have abandoned their right to invoke their right to arbitration.

“[W]aiver must be deemed to have occurred when a party’s conduct has been inconsistent with the arbitration clause so as to indicate that he has abandoned his right to avail himself of such right” Gateway Drywall & Decorating, Inc. v. Village Construction Co., 395 NE 2d 613 – Ill: Appellate Court, 5th Dist. 1979

“In Illinois, waiver has been found when: (1) a party has instituted legal proceedings and participated in a trial on the merits (2) a party has filed an answer without asserting his right to arbitrate and (3) a party that has sought arbitration files a motion for summary judgment on an arbitrable issue” City of Centralia v. Natkin & Co., 630 NE 2d 458 – Ill: Appellate Court, 5th Dist. 1994

If you are putting an arbitration clause in an Illinois prenuptial agreement, you are invoking contract law that will baffle most Illinois family law practitioners. If your prenuptial agreement has an arbitration clause, you need to know how to waive or preserve that right to arbitration depending on your circumstances.

To learn more about the arcane corners of Illinois family law, contact my Chicago family law firm to schedule a free consultation with an experienced Chicago divorce lawyer.

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