A marriage is a series of agreements. Divorces happen when those agreements start to fall apart. Some of those agreements between the couple (and others) will be upheld and some will be denied. One tool to deny agreements in an Illinois divorce is by invoking the Statute of Frauds. A Statute of Frauds is “A statute designed to prevent fraud and perjury by requiring certain contracts to be in writing and signed by the party to be charged” Black’s Law Dictionary (11th ed. 2019) Illinois’ Statute of Frauds contains two clauses that may be relevant to a divorce proceeding. Any agreement about some action to be performed more than a year from now MUST be in writing. “That no action shall be brought..[regarding] any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement…shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” 740 ILCS 80/1 (emphasis mine) And any agreement regarding real estate MUST be in writing. “No action shall be brought to charge any person upon any contract for the sale of lands…for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith” 740 ILCS 80/2 (emphasis mine) Agreements In An Illinois Divorce Illinois divorce courts are bound by the parties’ agreements for almost everything. “[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except the following, which is known as “non-marital property:… property excluded by valid agreement of the parties” 750 ILCS 5/503(a)(4) The court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: any prenuptial or postnuptial agreement of the parties” 750 ILCS 5/503(d)(7) (and a postnuptial agreement can be almost anything) “The court shall first make a finding as to whether a maintenance award is appropriate, after consideration of…any valid agreement of the parties” 750 ILCS 5/504(a)(13) “In determining the child’s best interests for purposes of allocating significant decision-making responsibilities, the court shall consider…any prior agreement or course of conduct between the parents relating to decision-making with respect to the child” 750 ILCS 5/602.5(c)(6) “In determining the child’s best interests for purposes of allocating parenting time, the court shall consider…any prior agreement […]
