My Illinois Divorce Lawyer Agreed To An Order That I Do Not Agree With!

Your Illinois divorce lawyer knows the law and the divorce process better than you do. That is why you hired that divorce lawyer.

The divorce lawyer prepared temporary motions, issued discovery and prepared proposed agreements to resolve your divorce.

A court date gets scheduled.

Your divorce lawyer says, “I’ll take care of it.”

You later get an email from your lawyer with an attachment titled “Agreed Order.”

Except…you do NOT agree to these terms at all. Are you bound by this agreement? Can you change this agreement?

A Lawyer’s Agreement On Their Client’s Behalf In Court

When a lawyer makes an agreement on your behalf in court, you are bound by your lawyer’s agreement…whether you, personally, agreed to the terms of that agreement or not.

“In general, a client is bound by the acts or omissions of his attorney within the scope of the attorney’s authority.” Sakun v. Taffer, 268 Ill. App. 3d 343, 351 (Ill. App. Ct. 1994)

The lawyer’s authority to enter into agreements on your behalf is not absolute, however.

“In general, a party who retains an attorney holds out the attorney as an authorized agent to receive correspondence and notices, including notice of court proceedings…Furthermore, an attorney’s statements may bind the client to a settlement agreement when the client later claims to have misunderstood the terms of the settlement, particularly when the settlement is made in open court or in the presence of the client. This authority is not unlimited, however, because an attorney who is hired to represent a client in litigation is not necessarily authorized to compromise the suit.” In re Marriage of Clarke, 194 Ill. App. 3d 248, 251-52 (citations omitted)

A divorce lawyer’s agreement to represent a client does not include the complete power to enter into agreements for that client.

“An attorney’s authority to represent a client in litigation is distinct from the authority to settle a lawsuit.” Zeman v. Diaz, No. 1-20-0797, 11 (Ill. App. Ct. 2021)

If you can prove to a judge that the lawyer did not have your authority to enter into this agreement, the agreement may be vacated.

“Before an attorney can compromise a suit, he must have a special authority for that purpose. Where an attorney, employed to prosecute or defend a suit, makes an agreement for the settlement of the same out of court, and without making the agreement a part of the decree or judgment in the suit, the client will not be bound without proof of authority in the attorney to bind the client, or acquiescence on the part of the client after knowledge of the facts; and, in such case, there is no presumption of authority, but the burden of proof rests on the party, alleging authority, to show that fact.” Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 149

It is going to be difficult to prove that your lawyer did not have authority to make agreements for you in court. After all, what did send your lawyer to court to do? You should have known what may happen in court that day.

“A litigant has a personal duty to follow the progress of their own case, whether they are represented by counsel or not. This includes a duty to take action when his counsel does not.” In re Shermulis, 409 Ill. App. 3d 1162 (1st Dist. 2011)

Illinois divorce courts hate losing progress. It will be an uphill battle to vacate a previous agreement.

“[A] litigant should not be permitted to shirk this responsibility [to follow their own case] then point to a procedural rule governing the time he or she is allowed to file a supplemental appearance after the withdrawal of his attorney to later cause the judgment to be vacated.” First Nat’l Leasing v. E.T.P. of Chicago, 158 Ill. App. 3d 882, 886 (Ill. App. Ct. 1987)

A Lawyer’s Agreement On Their Client’s Behalf Out Of Court

Lawyers cannot make agreements for clients outside of court without express (written) authority to do so.

No lawyer worth their salt would ever sign an agreement for their client when they could just forward the agreement for electronic signature.

“Where a settlement is made out of court and is not made part of the judgment, the client will not be bound by the agreement without proof of express authority.” Shapo v. Tires `N Tracks, Inc., 336 Ill. App. 3d 387, 399 (2002)

How To Get Out Of An Agreed Order Your Lawyer Entered Into

Most likely, you can absolutely change the agreement. The agreement was probably just a temporary order. Temporary orders can always be vacated or changed.

“A temporary order entered under this Section:

(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing;” 750 ILCS 5/501(d)(2)

Before the divorce is finalized, you can simply say “I no longer agree to that” and request a hearing on the matter (which is what would have happened if your lawyer hadn’t agreed in the first place.

Undoing Agreements After An Illinois Divorce

Final agreements will always be made with your signature and NOT by your lawyer alone.

“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)

Contracts have to be signed by the party to be enforced against the party. So, even your ex won’t let your lawyer sign for you.

“A contract signed by the party…may be enforced against him.” In re Marriage of Kloster, 469 NE 2d 381 – Ill: Appellate Court, 2nd Dist. 1984

If the agreement is made after the divorce, the agreement still might have a temporary character to it and be subject to change…but, usually, only after a substantial change in circumstances.

Almost everything can be modified post-divorce.

“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)

“An order for child support may be modified as follows: (1) upon a showing of a substantial change in circumstances” 750 ILCS 5/510(a)

“[T]he court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds…a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c)

“Parenting time may be modified at any time…upon a showing of changed circumstances that necessitates modification to serve the best interests of the child” 750 ILCS 5/610.5(a)

Property division is the one thing that cannot be changed post-divorce. So, be very careful what you and/or your divorce attorney agree to in regards to division of assets.

“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” 750 ILCS 5/510(b)

Agreed Orders CANNOT Be Appealed In Illinois

The reason it is imperative that the agreement be vacated immediately in the trial court is that agreed orders cannot be appealed.

“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

Why Did Your Lawyer Agree To Something On Your Behalf In The First Place?

Agreements between lawyers, memorialized by the court, happen all the time in Illinois divorce cases.

The alternative would be to have a full-blown evidentiary hearing with witnesses and physical evidence at every court date. There is no time or money for that when an agreement that achieves the same proximate effect is viable.

In lieu of hearings for minor issues, lawyers negotiate temporary arrangements that, hopefully, further their client’s goals. It’s almost all temporary and thus vacate-able or modifiable, so what’s the big deal?

The big deal is that it feels like you are losing when a court order gets entered that wasn’t 100% in your favor.

Do you truly believe that temporary orders are going to always be in your favor?

Do you truly believe that temporary orders that don’t even impact the final order in your case must be fair?

I love the movie “The Break-Up” starring Vince Vaughn and Jennifer Aniston as a couple who cannot communicate effectively through their break up. When asked how to divide the condo they own, Vince Vaughn’s character resolutely says “Well, the only logical thing that I can think of is for her to move out of the condo and pay me some sort of penalty as compensation for the labor I did all around the condo.”

We, the audience, are supposed to laugh at Vince Vaughn’s earnest logic. That is because it is ridiculous to presume that you are both the champion and the victim simultaneously.

Champions versus victims means that someone is always winning and someone is always losing and that both winners and losers are doing so…righteously.

In the real world, most disagreements are resolved…by agreement. Please hire a divorce lawyer who lives in the real world.

BUT, sometimes the wrong deal is worse than a broken deal. In those situations, it is usually necessary to hire a new lawyer to undo the previous deal.

If you would like my office to make the many small agreements that add up to a successfully resolved divorce, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.

source https://rdklegal.com/my-illinois-divorce-lawyer-agreed-to-an-order-that-i-do-not-agree-with/