The entire Illinois divorce process builds up to the final entry of a written Judgment of Dissolution of Marriage which incorporates other written agreements such as the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities.
These life-changing divorce agreements are all supposed to be in writing. “Any agreement pursuant to this Section must be in writing, except for good cause shown with the approval of the court” 750 ILCS 5/502(a)
Despite the statute’s clear wording, oral agreements (where nothing is put into writing and signed by both parties) are held as valid in Illinois divorce courts all the time.
In my experience, there is no phrase with more haunting foreshadowing than “Judge, we have an agreement and we’ll send it to your office for signature and entry later today.”
Enforceable oral agreements usually happen in open court on the record. Otherwise, how do you prove an oral agreement existed…because wouldn’t the agreement be in writing if it was agreed to elsewhere?
Oral Contracts Are Valid In An Illinois Divorce Court
Contracts are everywhere and all contracts are governed by the same principles whether the contracts are written or oral.
“A settlement agreement is in the nature of a contract, and construction and enforcement of such agreements are governed by principles of contract law” Solar v. Wienberg, 274 Ill. App. 3d 726, 731 (Ill. App. Ct. 1995)
If an oral contract has the proper elements, the oral contract is valid and enforceable.
“Settlements based on oral agreements may be enforced as long as there is clearly an offer and an acceptance and a meeting of the minds as to the terms of the agreement.” Johnson v. Hermanson, 221 Ill. App. 3d 582, 584 (Ill. App. Ct. 1991)
Oral contracts might seem uncertain because they are not written but if a reasonable third party thinks you have a contract (even if the agreement is unwritten)…you have a contract.
“As a general rule, an enforceable contract must include a meeting of the minds or mutual assent as to the terms of the contract. In order for a contract to come into being there must be mutual assent between all of the parties. Generally, it is the objective manifestation of intent that controls whether a contract has been formed. The subjective understanding of the parties is not required in order for there to be a meeting of the minds.” Urban Sites of Chicago, LLC v. Crown Castle USA, 2012 IL App (1st) 111880
It does not matter how casual the oral agreement seems. Illinois appellate courts have upheld oral settlement agreements when the parties negotiated “over a lunch break” (In re Marriage of Gibson-Terry, 325 Ill. App. 3d at 326), for two hours (In re Marriage of Steadman, 283 Ill. App. 3d 703, 710 (1996)), or simply on the morning trial was set (In re Marriage of Haller, 2012 IL App (5th) 110478, ¶¶ 4, 35-36).
Even the flimsiest oral settlement can become valid if a party relied on the oral settlement and then proactively did something in furtherance of that agreement. Agreements get locked in by the concept of “equitable estoppel.”
“Equitable estoppel exists where a party, by his or her own statements or conduct, induces a second party to rely, to his or her detriment, on the statements or conduct of the first party.” In re Marriage of Jungkans, 364 Ill. App. 3d 582, 584 (Ill. App. Ct. 2006)
Furthermore, once an agreement is deemed to be agreed, that agreement cannot be appealed later.
“An agreed order is a recordation of the agreement between the parties and is not a judicial determination of the parties’ rights….For this reason, an agreed order generally is not subject to appellate review. Such an order is conclusive on the parties and can be amended or set aside by one of the parties only upon a showing that the order resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the position or capacity of the parties, or newly discovered evidence.” In re Haber, 425 NE 2d 1007 – Ill: Appellate Court, 1st Dist. 1981
Defenses To Oral Contracts In An Illinois Divorce
Again, it is hard to imagine a valid oral agreement that was not also presented to the court. If you are on the record as being agreed…but realize you are not really agreed later, there are a few valid defenses (and a few not-so-valid defenses)
The real problem with oral contracts is that there are usually a multitude of details that were not discussed and, therefore, were not agreed upon. If the “material terms” (the terms that matter) were agreed with an appropriate level of certainty, a contract is valid and enforceable.
For a contract to be enforceable, “the material terms must be definite and certain, meaning that the court is enabled from the terms and provisions, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do.” In re Marriage of Haller, 2012 IL App (5th) 110478
If the fundamental aspects of the oral contract were agreed to orally, then those aspects remain enforceable. The oral contract, as a whole, remains valid.
“[A] contract must be clear, definite and complete in all of its material provisions to be enforceable but lack of nonessential details will not render the contract unenforceable.” First Nat’l Bk. of Oak Lawn v. Minke, 99 Ill. App. 3d 10, 14 (Ill. App. Ct. 1981)
Oral agreements are usually made because a party trusts their lawyer’s judgment…at the time.
If a party “had already consented to the terms of the decree in open court…[they] could not change [their] consent merely by changing attorneys” Filko v. Filko, 127 Ill. App. 2d 10, 17-18 (1970)
The pressure of court often allows parties to enter into oral agreements they later regret. Unfortunately, this court atmosphere pressure is not enough to establish duress for the purposes of invalidating an oral agreement.
“Coercion or duress includes the imposition, oppression, undue influence, or the taking of undue advantage of the stress of another, whereby that person is deprived of the exercise of her free will. Further, stress is common in dissolution proceedings; stress alone does not coercion make. The burden of proving duress, by clear and convincing evidence, is on the person asserting it.” In re Marriage of Flynn, 232 Ill. App. 3d 394, 401 (Ill. App. Ct. 1992)
Regret is simply never a defense to an agreement that was at one time valid.
“[A] settlement agreement should not be disregarded simply because one party has second thoughts.” In re Marriage of Stoker, No. 5-20-0301, 20 (Ill. App. Ct. 2021)
“To hold otherwise would dilute the binding effect of oral compromises and settlement agreements and permit parties thereto to change their minds at their pleasure.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 826 (Ill. App. Ct. 1990)
The real solution to uncertainty about oral agreements in an Illinois divorce is to never make an oral agreement in open court. If an agreement is at hand, open up your laptop and start writing out the actual written agreement at that very moment. You must to strike while the iron is hot to validate a final agreement between the parties. Do not procrastinate in your divorce or let your divorce lawyer procrastinate! As the pharaoh said in the Ten Commandments movie, “So let I be written. So let it be done!”