People get divorced because they cannot communicate and/or cannot rely upon each other. The family law system then expects those parties to come to a full agreement on all issues…and follow that agreement to a tee. This is a tall order.

To encourage reasonable, if not good, behavior while living under a divorce agreement, Illinois courts can imbue the good faith and fair dealing doctrine into an existing agreement between two ex-spouses.

Divorce Agreements In Illinois

Illinois divorces are mostly resolved by agreement. In an ideal divorce, the parties enter into temporary agreements to keep the peace until they can enter into a final Marital Settlement Agreement or Allocation of Parenting Time and Parental Responsibilities.

Illinois family law strongly encourages parties to come to an agreement.

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, support, parental responsibility allocation of their children, and support of their children” 750 ILCS 5/502(a)

“It is well settled in Illinois that the law favors the amicable settlement of property rights in cases of marital dissolution.” In re Marriage of Lorton, 203 Ill. App. 3d 823, 825 (Ill. App. Ct. 1990)

Both parties can refer to the agreement and conduct themselves accordingly.

Should either party believe that the other party is not following the agreement, they may request that the agreement be enforced.

“A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced…by order of court pursuant to petition…Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” 750 ILCS 5/511

How An Illinois Divorce Court Is Supposed To Interpret An Agreement

An Illinois divorce judge will then review the agreement to determine how the agreement should be enforced. Divorce judges must use contract law when interpreting agreements.

“A [divorce] 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)

Interpreting a contract is simple. You enforce the contract as it is written based on the words, terms and phrases in the contract…and nothing else.

“Interpreting a marital settlement agreement [or other written agreement] is a matter of contract construction. As such, courts seek to give effect to the parties’ intent.  language used in the marital agreement generally is the best indication of the parties’ intent and when the terms of the agreement are unambiguous, they must be given their plain and ordinary meaning.” In re Marriage of Dundas, 355 Ill. App. 3d 423, 426 (Ill. App. Ct. 2005)

“The terms of an agreement, if not ambiguous, should generally be enforced as they appear” Dowd & Dowd, Ltd. v. Gleason, 693 NE 2d 358 – Ill: Supreme Court 1998

Agreements do not perfectly predict the future of two divorced parties. Therefore, the language of the agreement may not perfectly match the future scenarios that the parties find themselves in. Therefore, one party might read the agreement differently than the other party.

“If the [agreement’s] language is susceptible to more than one reasonable meaning, it is considered ambiguous” Gillen v. State Farm Mut. Auto. Ins. Co., 830 NE 2d 575 – Ill: Supreme Court 2005

In such a case, the court should take the party’s side that didn’t write the agreement.

“Ambiguous contractual language is generally construed against the drafter of the language.” Duldulao v. St. Mary of Nazareth Hosp. Center, 505 NE 2d 314 – Ill: Supreme Court 1987

This is like when you break a cookie in two, the person that doesn’t break the cookie gets to pick the side they want. This ensures the cookie is broken as fairly as possible.

Good settlement drafters eliminate the possibility of their language being used against them by including this clause in their agreement:

“The parties acknowledge that neither party shall be considered the drafter of this Agreement for purposes of construing any ambiguities in this Agreement, if any.”

A vague and ambiguous term with no capacity to construe against the drafter has only one remaining source of what the parties’ intent was when they entered into the agreement.

“If a contract is judicially interpreted, the primary goal is to discover and give effect to the intent of the parties at the time they entered into the contract.” In re Marriage of Belk, 239 Ill. App. 3d 806, 809 (Ill. App. Ct. 1992)

If the intent is not clear from the document, itself, the court may look to evidence of how the agreement came about. This outside-the-physical-agreement evidence is referred to as “parol evidence

“The rationale behind the provisional admission of parol evidence is that in some cases it may be necessary to admit such evidence to show that an agreement, although clear on its face is actually ambiguous. The provisional admission of parol evidence, however, may only be used to clarify the definition of terms in determining whether a contract is ambiguous; and where the terms are clear and unambiguous, parol evidence may not be considered to vary the meaning of those terms.” Owens v. McDermott, Will & Emery, 736 NE 2d 145 – Ill: Appellate Court, 1st Dist., 2nd Div. 2000

Good Faith And Fair Dealing Doctrine In An Illinois Divorce

Maybe all of this work to ascertain the true intent of the parties is unnecessary. Maybe an Illinois divorce court can just infer that both parties entered into the agreement in good faith and agreed not be jerks.

“The duty of good faith and fair dealing is implied in every contract” The Reserve at Woodstock, LLC v. City of Woodstock, 2011 IL App (2d) 100676

“The obligation of good faith and fair dealing is essentially used as a construction aid in determining the intent of the parties where an instrument is susceptible of two conflicting constructions….Disputes involving the exercise of good faith arise when one party is given broad discretion in performing its obligations under the contract….The doctrine of good faith then requires the party vested with contractual discretion to exercise that discretion reasonably and with proper motive, not arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties.” Resolution Trust Corp. v. Holtzman, 248 Ill. App. 3d 105, 112 (1993).

“Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving `bad faith’ because they violate community standards of decency, fairness or reasonableness.” Schwinder v. Austin Bank, 348 Ill. App. 3d 461, 474 (Ill. App. Ct. 2004) (quoting the Restatement (Second) of Contracts § 205, Comment a, at 100 (1981))

The doctrine of good faith and fair dealing gets around all the questions about what the parties were supposed to do under the agreement by simply saying the parties were supposed to exercise “decency, fairness [and] reasonableness” despite whatever agreement interpretation exists.

Invoking the doctrine of good faith and fair dealing avoids complicated agreement interpretation hearings. The doctrine of good faith and fair dealing is particularly useful in family law because almost everything in a divorce agreement can and will be modified.

Typically, Illinois divorce judges must take an agreement as the agreement is written. An Illinois divorce judge cannot rewrite the agreement independently to resolve the conflict.

An Illinois court shall “not rewrite a contract to suit one of the parties, but will enforce the terms as written.” Wright v. Chicago Title Insurance Co., 196 Ill. App. 3d 920, 925 (1990).

A motion to modify or a motion to clarify must be on file for an Illinois court to change the language of the agreement and legally enforce that changed language. But once a motion to modify or clarify is filed…that family law agreement is probably going to change

“[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)

“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)

What is the point of determining the parties’ intentions if the agreement is going to be modified and only enforced pursuant to that modification? Until then, apply the good faith and fair dealing doctrine to tell the parties “just don’t be a jerk!”

If you would like to keep your ex from acting like a jerk, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.