Marital Legal Separation and Property Settlement Agreement for persons with no Children, no Joint Property, or Debts Effective Immediately
Note:
This summary is not intended to be an all-inclusive discussion of the law
of separation agreements in Illinois, but does include basic and other
provisions.
General Summary:
Separation and Property Agreements may be entered into before a divorce
is filed to be effective immediately, or may be entered into after the
divorce is filed to settle the case. Provisions concerning property division,
maintenance of either of them, and support, custody and visitation of their
minor childre. With the exception of provisions relating to minor
chilren, the partie's agreement is binding on the court unless, under the
circumstances, the court finds the provisions to be unconscionable.
Statutes:
Illinois Compiled Statutes
CHAPTER 750
Families
PART V
Illinois Marriage and Dissolution of Marriage Act.
Agreement:
(a) To promote amicable
settlement of disputes between parties to a marriage attendant upon the
dissolution of their marriage, the parties
may enter into a written or oral agreement
containing provisions for disposition of any property owned by either of
them, maintenance of either of them and support, custody and visitation
of their children.
(b) The
terms of the agreement, except those providing
for the support, custody and visitation of children, are binding upon the
court unless it finds, after considering the economic
circumstances of the parties and any other relevant evidence produced
by the parties, on their own motion
or on request of the court, that the agreement is unconscionable.
(c) If the court
finds the agreement unconscionable, it may request the parties to submit
a revised agreement or upon hearing, may
make orders for the disposition of property, maintenance, child
support and other matters.
(d) Unless the
agreement provides to the contrary, its terms shall be set
forth in the judgment, and the parties shall
be ordered to perform under such terms, or if the agreement provides
that its terms shall not be set forth in the judgment,
the judgment shall identify the agreement and state that the court has
approved its terms.
(e) 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.
(f) Except for
terms concerning the support, custody or visitation of children,
the judgment may expressly preclude or limit modification of terms set
forth in the judgment if the agreement
so provides. Otherwise, terms of an
agreement set forth in the judgment
are automatically modified by modification of the judgment.
750 ILCS 5/ Sec. 502
Case Law:
Before
a divorce may be granted in the State of Illinois, there must be a judicial
determination that one of the parties is at fault. The parties may not
make this determination for themselves; they may, however, determine
how they will divide their property and arrange for the support of their
children and themselves. James v. James (1958), 14 Ill.2d 295, 152
N.E.2d 582
The settlement of the
property and support rights by the parties is condoned and encouraged.
Gaddis
v. Gaddis (1974), 20 Ill. App.3d 267, 314 N.E.2d 627
When
the parties enter into a written property settlement agreement after each
has been made aware of the extent of the other's property and is fully
aware of the provisions of the agreement, and the agreement has been approved
by the court and has been incorporated into the decree, the agreement is
considered conclusive and is as enforceable against the parties as if the
court had made the determination. Gaddis v. Gaddis (1974), 20 Ill.
App.3d 267, 314 N.E.2d 647.
When
a party seeks to vacate a property settlement incorporated in a judgment
of dissolution of marriage, all presumptions are in favor of the validity
of the settlement. In re Marriage of Hamm-Smith, 261 Ill.
App. 3d 209, 214 (1994).
A
settlement agreement can be set aside if it is shown that the agreement
was procured through coercion, duress or fraud, or if the agreement is
unconscionable. In re Marriage of Flynn, 232 Ill. App. 3d
394, 399 (1992).