When an Illinois divorce is finalized, two to three documents are entered with the court: 1) a Judgment of Dissolution of Marriage, 2) a Marital Settlement Agreement and (possibly) 3) an Allocation of Parenting Time and Parental Responsibilities.
These documents are usually signed by all parties and become binding contracts.
“[Divorce S]ettlement agreements are binding.” In re Marriage of Stoker, 2021 IL App (5th) 200301
The beginning of a Marital Settlement Agreement or Allocation of Parenting Time and Parental Responsibilities will list various statements of fact that help the reader understand the contract as a whole.
For example, “WHEREAS, Fred and Wilma were married in Bedrock on June 1, 2010. WHEREAS, Fred and Wilma had one child, Pebbles, born May 7, 2012. WHEREAS, Fred and Wilma accumulated various marital assets throughout their marriage.”
This introductory listing of facts is called “the recitals”
A recital is “a preliminary statement in a contract or deed explaining the reasons for entering into it or the background of the transaction, or showing the existence of particular facts.” Black’s Law Dictionary (11th ed. 2019)
A recital is like the when the words scroll across the screen at the beginning of every Star Wars movie…they lets the reader know what happened before and where we are at now.
Most divorce lawyers will skim the recital when reviewing the final divorce documents. “This is all boilerplate,” is the lazy divorce lawyer’s mantra.
Recitals are not boilerplate! Recitals can matter a lot.
Are Recitals Binding In An Illinois Divorce Decree?
The entirety of a Marital Settlement Agreement or Allocation of Parenting Time and Parental Decision Making is a contract and will be interpreted as such.
“It is also well settled that the terms of a[divorce] settlement agreement are subject to the ordinary rules for the construction of contracts.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825-26 (Ill. App. Ct. 1990)
The default reading of a recital is that a recital is merely information and not binding as to the body of the contract.
“[R]ecitals generally are considered nonbinding explanations of the circumstances surrounding the execution of a contract.” Cress v. Recreation Services, Inc., 795 NE 2d 817 – Ill: Appellate Court, 2nd Dist. 2003
Courts can refer to the recital section if necessary to determine what the parties’ true intentions were (if those intentions weren’t clear in the body of the contract).
“[Courts can look to] the recitals of a contract if necessary to determine the intention of the parties and of the operative provisions of the agreement.” In re Estate of Anderson, 195 Ill.App.3d 644, 649, 142 Ill.Dec. 79, 552 N.E.2d 429 (1990)
If the body of the Marital Settlement Agreement or the Allocation of Parenting Time and Parental Responsibilities is crystal clear, the recitals are irrelevant.
“Generally, the recognized rule is that the obligations and promises of the parties in the operative portion of a contract prevail over a preliminary recital or preamble.” Brookens v. Peabody Coal Co., 143 NE 2d 25 – Ill: Supreme Court 1957
If there is a dispute, a court will review the entire contract.
“When interpreting a contract, the court must consider the entire document, not merely an isolated portion.” Spectramed, Inc. v. Gould Inc., 710 NE 2d 1 – Ill: Appellate Court, 1st Dist., 5th Div. 1998
“A court must consider the contract in the context of the entire agreement. The determinative factor is the intention of the parties, which can best be determined by considering the contract as a whole, reviewing each part in light of the others.” Wilson v. Wilson, 577 NE 2d 1323 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991 (citations omitted)
Recitals are an excellent source of “the intention of the parties.”
To be considered as a binding part of the contract, the recitals should be referenced in the body of the contract.
“Preliminary recitals of an agreement do not become binding obligations unless so referred to in the operative portion of the instrument as to show a design they should form a part of it.” Housing Dev. Auth. v. MZ Constr. Corp., 441 NE 2d 1179 – Ill: Appellate Court, 1st Dist. 1982
“Recitals to a contract provide explanations of those circumstances surrounding the execution of the contract. Ordinarily, recitals are only preliminary in nature and will not, of themselves, be considered binding obligations on the parties or an effective part of their agreement unless referred to in the operative portion of their agreement.” First Bank and Trust Co. v. Village of Orland Hills, 787 NE 2d 300 – Ill: Appellate Court, 1st Dist., 1st Div. 2003
“Recitals become operative and controlling when the preamble to contract includes language indicating that contract is being formed in consideration of those recitals.” Wilson v. Wilson, 577 NE 2d 1323 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991
If the recitals are not referred to in the body of the Marital Settlement Agreement or Allocation of Parenting Time and Parental Responsibilities, a court can still review them when adjudicating a dispute.
Even if the “there was no explicit language in the [contract] giving effect to the recitals, the body of the [contract] tracked their language and we find no error on the part of the trial court in considering them in interpreting the Agreement.” First Bank and Trust Co. v. Village of Orland Hills, 787 NE 2d 300 – Ill: Appellate Court, 1st Dist., 1st Div. 2003
“It would be illogical to ignore the recitals that are included [next to] the body of the [contract] and are so indicative of the surrounding circumstances relevant to its execution.” First Bank and Trust Co. v. Village of Orland Hills, 787 NE 2d 300 – Ill: Appellate Court, 1st Dist., 1st Div. 2003
In fact, the recitals can be even more controlling than the body of the agreement if they are more specific.
“Recitals and Preamble are [usually] specific provisions. When a contract contains both general and specific provisions relating to the same subject, the specific provision controls.” Wilson v. Wilson, 577 NE 2d 1323 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991 (citations omitted)
Why Recitals Are So Important In An Illinois Divorce Decree
Recitals memorialize the facts at the time of the signing of the Marital Settlement Agreement and/or Allocation of Parenting Time and Parental Responsibilities.
These facts are especially important in a divorce because divorce contracts get modified all the time based on a substantial change of circumstances.
Maintenance (formerly known as alimony) changes all the time based on the new situations the former spouses find themselves in (new jobs, new spouses, etc.)
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
Child support can and will be changed over the course of the child’s maturation.
“An order for child support may be modified as follows…upon a showing of a substantial change in circumstances” 50 ILCS 5/510(a)(1)
“A child-support judgment generally can be modified only upon a showing of a substantial change in circumstances…A substantial change in circumstances typically means that the child’s needs, the obligor parent’s ability to pay, or both have changed since the entry of the most recent support order such that a modification of the support amount is warranted” In re Marriage of Izzo, 2019 IL App (2d) 180623
Likewise, time with the children and decisions on the children’s behalf will be modified as the children mature.
“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)
“[T}he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)
A substantial change in circumstances must be proven.
“There is no precise formula for a substantial change in circumstances.” In re Marriage of Solecki, 2020 IL App (2d) 190381
“The party seeking modification bears the burden of proving [the substantial change in circumstances].” In re Marriage of Logston, 469 NE 2d 167 – Ill: Supreme Court 1984
“Only after determining the threshold issue of whether a substantial change in circumstances has occurred can a court consider modif[ication]” In re Marriage of Armstrong, 346 Ill. App. 3d 818, 823 (2004)
In order to prove the required substantial change in circumstances the moving party must first prove what the original circumstances were.
What better way to prove the original circumstances than referring to the agreement’s recitals?
Proving the subsequent and current circumstances is easy. Bring in pay stubs, W2s, tax returns, or report cards that are different than what was memorialized in the recitals.
If your divorce lawyer is not carefully considering every clause of your final divorce papers…maybe you need a new divorce lawyer. Contact my Chicago, Illinois family law firm to discuss your divorce with an experienced Illinois divorce attorney.