“This is a very amicable divorce,” clients often tell me. In fact, the divorce is so amicable that both parties overlook each others’ mistakes when forming the final agreements.

Maybe an asset was forgotten to be included in the Marital Settlement Agreement. Maybe an asset that was included was divided with a faulty valuation. Maybe someone’s income was misunderstood, misstated and support was subsequently flawed.

Mistakes happen. Especially in the emotional throes of divorce. Divorce lawyers can only verify so much.

Months after the final orders are entered. The party who is harmed by the mutual mistake is no longer so amicable. They want to fix the divorce agreement post facto. Meanwhile, the other party is likely to say “Sorry. A deal is a deal.”

Divorce agreements are contracts. Contracts are enforceable.

“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.” 750 ILCS 5/502(e) (emphasis mine)

“[S]ettlement agreements are binding absent a finding of unconscionability.” In re Marriage of Stoker, 2021 IL App (5th) 200301

Enforcing two parties to abide by a mutual error is clearly unconscionable. Leaving a contract rife with errors doesn’t help anyone.

How does an Illinois divorce court deal with innocent mistakes?

Mistakes or errors that both parties made at the time the divorce agreement was finalized can be undone after the divorce is entered and finalized under the doctrine of mutual mistake of fact.

A mistake of fact is “a mistake about a fact that is material to a transaction.” Black’s Law Dictionary (11th ed. 2019)

A mutual mistake is “a mistake that is shared and relied on by both parties to a contract.” Black’s Law Dictionary (11th ed. 2019)

“[T]his court has long held that mutual mistake, or mistake of one side and fraud on the other, may give rise to a claim for reformation of a written contract.” Czarobski v. Lata, 882 NE 2d 536 – Ill: Supreme Court 2008

“A mutual mistake…is a mistake common to both contracting parties wherein each labors under the same misconception; thus, when there is a mutual mistake, the parties are in actual agreement but the agreement in its written form does not express the parties’ real intent. Parol evidence is admissible to establish the fact of fraud or mistake.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992

Almost all agreements in an Illinois divorce become entered as a subsequent order. To bring the mutual mistake to the divorce court’s attention, a proper motion to vacate the order must be filed.

If the mutual mistake of fact was discovered within 30 days of the entry of the agreement, a court is likely to grant the reformation of the agreement without too close of a look.

“The court may, in its discretion…may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e)

After 30 days, Illinois courts become more stringent about final orders and judgments they are willing to modify.

“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section…All relief…shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.” 735 ILCS 5/2-1401

Undoing an older order requires a meritorious defense and due diligence.

“To be entitled to relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; and (3) due diligence in presenting the section 2-1401 petition.” Cavitt v. Repel, Docket No. 1-13-3382, 13 (Ill. App. Ct. 2015)

The mutual mistake is the meritorious defense.

“A section 2-1401 petitioner is not entitled to relief `unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.’” Kaput v. Hoey, 530 NE 2d 230 – Ill: Supreme Court 1988 (Quotations Omitted)

The due diligence is when did you know the agreement should have been changed…and how soon did you act on that knowledge?

 “Due diligence requires the section 2-1401 petitioner to have a reasonable excuse for failing to act within the appropriate time. Since section 2-1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or negligence a party relying on section 2-1401 is not entitled to relief unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Specifically, the petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that under the circumstances he acted reasonably, and not negligently, when he failed to initially resist the judgment. In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys.” Smith v. Airoom, Inc., 499 NE 2d 1381 – Ill: Supreme Court 1986 (Citations Omitted)

The reasonable time to pursue a reformation of contract is 2 years.

“[T]he petition [to vacate] must be filed not later than 2 years after the entry of the order or judgment.  Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” 735 ILCS 5/2-1401(c)

If a mutual mistake was made when finalizing a divorce agreement, that mistake and its mutuality must be proven to the court in order to modify the agreement.

“In order to entitle a party to reformation of a contract, he must show a mistake by both parties or a mistake by one party which is known and concealed by the other party. A “mutual mistake of fact” exists for purposes of the reformation of a written instrument, when the contract has been written in terms which violate the understanding of both parties.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992

Mutual mistakes are easy to prove because mutual mistakes usually admitted by both parties. Otherwise, the mistake looks like fraud on the part of one of the parties…which leads to lots of bad results for the dishonest party when the divorce agreement does get reformed.  

Courts do not want people coming back to court reforming previously enforceable contracts. Because of this, defendants often invoke the “parol evidence rule.”

“The parol evidence rule generally precludes evidence of understandings not reflected in the contract, reached before or at the time of its execution, which would vary or modify its terms” WW VINCENT v. FIRST COLONY LIFE INS., 814 NE 2d 960 – Ill: Appellate Court, 1st Dist., 3rd Div. 2004

The parol evidence rule would keep out the mistake and mutuality evidence. So, there is an exception to this important contract evidence rule in the case of mutual mistake of fact.

“It is well settled that the parol evidence rule is no bar to the admission of evidence on the question of mutual mistake, and this is so even when the instrument to be reformed is clear and unambiguous on its face. Thus, parol evidence may be used to show the real agreement between the parties when a mistake has been made and the evidence is for the purpose of making the contract conform to the original intent of the parties. Parol evidence may be admissible to show the concerns of the parties prior to and contemporaneous with the signing of the written agreement.” In re Marriage of Johnson, 604 NE 2d 378 – Ill: Appellate Court, 4th Dist. 1992

The courts should consider the evidence of the mutual mistake and what the parties’ original intentions were at the time of forming the divorce agreement…then order the agreement to reflect those intentions based on the now discovered mistake of fact.

“A written contract may be reformed to reflect the intention of the parties and the agreement between them.” Schivarelli v. Chicago Transit Authority, 355 Ill.App.3d 93, 99, 291 Ill.Dec. 148, 823 N.E.2d 158 (2005).”

Only the mistake portion of the divorce agreement will be rewritten.

`”An action to reform a written agreement rests upon a theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake, or through mistake of one side and fraud on the other, some provision agreed upon was omitted, and the action is to so change the instrument as written as to conform it to the contract agreed upon, by inserting the provisions omitted or striking out the one inserted by mutual mistake.”” Schivarelli, 355 Ill.App.3d at 100, 291 Ill.Dec. 148, 823 N.E.2d 158, quoting Suburban Bank of Hoffman-Schaumburg v. Bousis, 144 Ill.2d 51, 58-59, 161 Ill.Dec. 289, 578 N.E.2d 935 (1991), quoting Harley v. Magnolia Petroleum Co., 378 Ill. 19, 28, 37 N.E.2d 760 (1941).

Not all final orders in a divorce are agreements which can be undone by a finding of mutual mistake of fact. Some final orders had no agreement. All trial orders are findings by a judge without the agreement of the parties. There can be no mutual mistake in a trial…because there was no mutuality. Therefore, there can be no reformation of a divorce’s terms based on mutual mistake after a hearing or trial determined the order.

“Because the parties did not enter into a written agreement or claim the terms of an agreement were not what they had intended, the mutual mistake argument, as a basis for relief, is not applicable.” In re Marriage of Miller, 363 Ill. App. 3d 906, 913 (Ill. App. Ct. 2006)

Reforming divorce agreements only really matters for distribution of assets which are non-modifiable.

“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)

Everything else in a final divorce agreement is modifiable.

All support is modifiable.

“[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)

Parenting time is, likewise, modifiable without alleging an error.

“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)

If you believe your final divorce agreement has a mutual mistake of fact…or any error at all, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.