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Marital Settlement Agreements Explained | Illinois Divorce Settlements

Updated on
October 28, 2019
Article written by
Attorney Kevin O'Flaherty

One of the primary responsibilities of a good divorce attorney is to attempt to settle the major issues in a divorce case prior to trial. If this can be accomplished, both sides will save on attorney fees,and there will be more marital assets remaining for division among the parties.  If the parties are unable to resolve all of the major issues in their divorce, the outstanding issues will be resolved through a trial, and the judge will issue an order of dissolution setting forth his or her rulings on these issues.  The alternative to a trial is a Marital Settlement Agreement.

A Marital Settlement Agreement is a contract between the divorcing spouses that provides for the division of marital property and marital debt, child support, child custody, visitation rights, and maintenance payments.   Once the agreement has been executed by both parties.  The court will adopt the marital settlement agreement as its dissolution order in lieu of a trial subject to two limitations:

  1. The court may modify any provisions relating to child support,child custody, and visitation, based on the best interests of thechildren involved; and
  2. The court will not enter the agreement as an order if it is"unconscionable."A marital settlement agreement will be held to be unconscionable if either:
  • It is unreasonably unfair to one party; or
  • The agreement was made under conditions under which one party didnot have a meaningful choice.

If the court enters the Marital Settlement Agreement as a divorce judgment, either party can vacate the judgment by showing "clear and convincing evidence" that the agreement was unconscionable.

The parties can limit their own ability to seek later modification ofthe MSA, even in the case of changed circumstances, if they explicitlystate this limitation in the agreement.  However, the parties cannotlimit their ability to modify issues relating to children such as child support, custody, or visitation rights.

It is important that the terms of the Marital Settlement Agreement be explicitly stated in the order of dissolution, not merely incorporated into the order by reference.  If the terms of the MSA are explicitly set forth in the order of dissolution, the terms can be enforced through a contempt proceeding in the divorce court.  If the divorce decree simply references the terms of the MSA, then the terms are only enforceable through breach of contract proceedings.

Marital Settlement Agreements Explained | Illinois Divorce Settlements
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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