After months of back and forth negotiations the broad principles of the divorce agreement can be memorialized in detailed writings called the Judgment for Dissolution of Marriage, the Marital Settlement Agreement and/or the Allocation of Parenting Time And Parental Responsibilities.
Coming to an agreement is only half the effort in crafting a quality final divorce agreement. Ensuring that the agreement can and will be followed by the parties and a third party interpreter (lawyer, mediator and/or judge) is the where the real legal talent gets applied.
The written divorce settlement agreements will have incredible detail in order to resolve disputes that the parties probably had not even considered. This level of detail will resolve conflicts between the parties that might arise years in the future after the parties have, in fact, forgotten the content of the agreement.
One way to resolve future disagreements is to be so detailed as to define terms. Defining terms is to provide a definition of a word or phrase as later used in the agreement. This is especially useful when the agreement pertains to specific facts the divorced couple must address that are not obvious to the layperson (or humble domestic relations judge).
Most people do not need to define specific terms in their Illinois divorce decree because their assets, income and parenting schedule are relatively formulaic.
“Proceeds from the sale of the house,” “Gross income from all sources,” and “Visitation shall begin on Wednesdays at 5pm” need not be defined…typically.
Any language that may have multiple reasonable meanings in either degree or in kind must be defined for the sake or resolving future disputes.
How Is An Illinois Divorce Agreement Interpreted By A Court?
The Judgment for Dissolution of Marriage is a court order. Court orders are approved by the court for entry on the basis of whether the order is fair and equitable to the parties and their children.
The Judgment for Dissolution of Marriage (the order) incorporates the contractual documents associated with the Judgment for Dissolution: The Marital Settlement Agreement and/or the Allocation of Parenting Time and Parental Responsibilities.
“When an agreement by divorcing spouses concerning property rights is approved by the court and incorporated into the divorce decree, it becomes merged in the decree and the rights of the parties thereafter rest upon the decree.” In re Estate of Coleman, 395 NE 2d 1209 – Ill: Appellate Court, 2nd Dist. 1979
The contractual documents, the Marital Settlement Agreement and the Allocation of Parenting Time and Parental Responsibilities are viewed by the court as a contract between the parties and enforced and modified as such.
“[A] marital settlement agreement is a contract between the parties. We reasoned that, when a dissolution judgment is entered pursuant to such a contract, the obligations of the parties arise from the contract and are not imposed by the trial court for equitable reasons.” In re Marriage of Carrier, 773 NE 2d 657 – Ill: Appellate Court, 2nd Dist. 2002
It does not matter if the terms of the contract are fair or not. The parties entered into the contractual agreements and the court cannot review the written based on fairness.
We found that, in such an instance, the trial court exercises no equitable discretion in entering the dissolution judgment.” In re Marriage of Carrier, 773 NE 2d 657 – Ill: Appellate Court, 2nd Dist. 2002
Equitable discretion “applies to the assistance to a complainant seeking a just and fair remedy from the court.” Black’s Law Dictionary (11th ed. 2019)
An Illinois divorce court must read the Marital Settlement Agreement and Allocation of Parenting Time and Parental Responsibilities as contracts under the rules of contract construction.
Contract Construction is “[t]he process, or the art, of determining the sense, real meaning, or proper explanation of obscure or ambiguous terms or provisions in a…written instrument” Black’s Law Dictionary (11th ed. 2019)
“A marital settlement agreement is construed in the manner of any other contract, and the court must ascertain the parties’ intent from the language of the agreement.”Blum v. Koster, 919 NE 2d 333 – Ill: Supreme Court 2009
“The normal rules pertaining to the construction of contracts are applicable to the interpretation of the provisions of a divorce decree. The settlement provisions within the divorce decree should be construed so as to give effect to the intention of the parties. The intent of the parties must be determined from the contract as a whole and not from any one clause standing alone. Further, in construing a contract, meaning and effect must be given to every part, and no part should be rejected as surplusage unless absolutely necessary since it is presumed that each provision was inserted deliberately and for a purpose. The parties’ intent must be determined solely from the language of the contract unless the language is ambiguous, in which case extrinsic evidence may be introduced to explain the language. A contract is ambiguous when the language used is reasonably susceptible to more than one meaning. Language is not rendered ambiguous simply because the parties do not agree upon its meaning.” White v. White, 378 NE 2d 1255 – Ill: Appellate Court, 1st Dist. 1978 (citations omitted)
When reviewing written divorce settlement documents, an Illinois divorce court is looking for vague and ambiguous language. Without “vague and ambiguous” language, an Illinois divorce court must enforce the divorce settlement as written.
“A court interpreting [an] unambiguous order must look only at the words of the order, not at the record or the judge’s later statements about his intent.” People v. Cooper, 547 NE 2d 449 – Ill: Supreme Court 1989
The drafter of a Marital Settlement Agreement or Allocation of Parenting Time and Parental Responsibilities should seek to have no vague or ambiguous language in their documents.
Inclusion of a vague or ambiguous word or term will be construed against the drafter…because the drafter should have known better when preparing the document.
“If the [written settlement’s] language is susceptible to more than one reasonable meaning, it is considered ambiguous and will be construed against the [drafter].” Gillen v. State Farm Mut. Auto. Ins. Co., 830 NE 2d 575 – Ill: Supreme Court 2005
Sufficient vagueness and ambiguity will lead to the entire settlement being thrown out.
“The essential terms of a contract must be definite and certain in order for a contract to be enforceable.” Midland Hotel Corp. v. RH DONNELLEY CORP., 515 NE 2d 61 – Ill: Supreme Court 1987
More likely, though, the court will rewrite the contract with more specific terms under the rules of the construction of contracts.
However, a contract “is sufficiently definite and certain to be enforceable if the court is enabled from the terms and provisions thereof, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do.” Morey v. Hoffman (1957), 12 Ill.2d 125, 131.
Avoiding Vague And Ambiguous Language In An Illinois Divorce Agreement
Divorce settlement contracts are written in English.
“The official language of the State of Illinois is English.” 5 ILCS 460/20
The arbiter of the English language is the dictionary. Any Illinois divorce settlement document will be governed by the dictionary definitions of the terms the settlement document uses…unless the word or term is defined another way in the settlement document itself.
“[Written agreements that] do not define…terms…must afford them their plain, ordinary, and popular meanings. To do so, we look to their dictionary definitions” Valley Forge Ins. v. Swiderski Electronics, 860 NE 2d 307 – Ill: Supreme Court 2006
Again, the “intention of the parties” is what an Illinois divorce court seeks when interpreting a contract.
“[T]he paramount rule in interpreting [a written agreement’s] provisions…is to ascertain and give effect to the intent of the parties.” Traveler’s Ins. Co. v. Eljer Mfg., Inc., 757 NE 2d 481 – Ill: Supreme Court 2001
The “intention of the parties” is initially and primarily determined by the words and terms used in the contract.
“In construing the language of a [written agreement], a court must ascertain and give effect to the intention of the parties as expressed in their agreement. To that end, terms utilized in the [written agreement] are accorded their plain and ordinary meaning unless specifically defined in the [written agreement], in which case they will be given the meaning as defined in the [written agreement].” AMERICAN NAT. FIRE INS. v. NAT. UNION FIRE, 796 NE 2d 1133 – Ill: Appellate Court, 1st Dist., 5th Div. 2003
Specifically defining the terms in an Illinois divorce settlement agreement clarifies the intention of the parties.
“A…term [in a written agreement] is not ambiguous because the term is not defined within the [written agreement] or because the parties can suggest creative possibilities for its meaning… A [written] provision is ambiguous only if it is subject to more than one reasonable interpretation.” Lapham-Hickey Steel v. Protection Mut. Ins., 655 NE 2d 842 – Ill: Supreme Court 1995
Even one defined word will clarify the rest of the contract as to that word and similar concepts contained within the written settlement agreement.
“It is fundamental in contract construction that, if possible, effect must be given to all of the language so that provisions which appear to be conflicting or inconsistent may be reconciled and harmonized.” In re Support of Halas, 470 NE 2d 960 – Ill: Supreme Court 1984
What Kind Of Defined Terms Should You Include In An Illinois Divorce Settlement?
Divorce settlements are usually drafted based on templates that have been used for hundreds of other dissimilar divorces. Your divorce should not include bland aphorisms that are presumed to be acceptable for any and all divorces.
A marital settlement agreement determines what property is marital or non-marital.
The marital property is then distributed to each party while the identified non-marital property remains with its owner.
Every piece of property must be defined with specificity.
“The wedding ring” is insufficient.
“The Étincelle de Cartier ring, 18K rose gold (750/1000), set with a pear-shaped diamond center stone totaling 0.16 carat and 22 brilliant-cut diamonds totaling 0.10 carat. Width: 1.52 mm. Thickness: 1.35 mm., receipt and photo attached as exhibit A” is an excellent definition. That ring is not going to get mixed up with any other ring in the parties’ possession.
Income is even trickier. Child support and Maintenance in Illinois are determined by the parties’ net income.
““[N]et income” means gross income minus either the standardized tax amount” 750 ILCS 5050(a)(3)(B)
Net income is a function of “gross income” and “the standardized tax amount.”
“[G}ross income” means the total of all income from all sources” 750 ILCS 5050(a)(3)(A)
“[S]tandardized tax amount” means the total of federal and state income taxes for a single person claiming the standard tax deduction, one personal exemption, and the applicable number of dependency exemptions for the minor child or children of the parties, and Social Security and Medicare tax calculated at the Federal Insurance Contributions Act rate. 750 ILCS 5050(a)(3)(C)
So, the real variable is the “total of all income from all sources.” If the parties are employees who receive nothing more than a W2 at the end of the year, that is an easy calculation.
Executive compensation and bonuses are individual to each employer. Those benefits are income…if they are defined as such and are not income if they are not properly defined.
Self-employed people get income from all kinds of sources. That income is then reduced by the expenses of the business. Different businesses have different income and different expenses. Those incomes and expenses need to be defined or either party will manipulate their income or expenses to increase or reduce their child support and/or maintenance.
“Net income will be determined to be the gross receipts throughout the year of the lemonade stand minus the cost of sugar, lemons, spring water throughout the year and subsequently amortized for an average monthly income.” That’s a lot more specific…but not specific enough.
What would keep the lemonade stand owner from opening up a sugar, lemon and spring water distribution company that the lemonade stand owner would then buy from at a marked up price, thereby reducing their income and support?
In contrast, imagine this additional detailed definition: “The lemonade stand operator must tender gross sales receipts to the spouse including cash receipts. Failure for cash receipts to equal 25% of total sales receipts will result in a presumption of additional cash receipts in the amount of 25% of the total sales receipts. The cost of sugar, lemons and spring water shall be set at this year’s of the cost of sugar, lemons and water increased only by the rate of inflation and the rate of increase in the lemonade stand’s gross sales receipts.”
A lemonade stand is the simplest possible imagined business and the detailed definition required to avoid gamesmanship is still several clauses. Imagine how you’d define income for a sophisticated business.
Every business operates with a different standard for retained earnings. Retained earnings MUST be defined in any divorce settlement agreement.
Parenting time decisions usually require additional details based on the dynamics of parties. In a perfect world, the parents will just work it out amongst themselves. This is not a perfect world.
“Exchange of the children will occur at 3pm Wednesdays” will probably be enough.
“’Exchange’ will be defined as the transfer of the children appropriately dressed for the weather to the other party’s car, driven only by the other party at the curb outside of the parent’s residence whose parenting time is ending” would be much better.
What If There Is A Disagreement About The Words And Terms In An Illinois Divorce Settlement?
When there is a disagreement about a settlement contract as a whole, the parties can exchange a stipulation as to any presumably vague words.
“A stipulation, or a judicial admission, is an agreement between the parties or their attorneys with respect to business before the court….There is, however, no absolute rule on the subject.” Lee v. Chicago Transit Authority, 605 NE 2d 493 – Ill: Supreme Court 1992
“The general rule is that litigants may stipulate regarding matters involving the individual rights of the litigants themselves…Courts look with favor upon stipulations which are designed to simplify, shorten or settle litigation and save the costs of the parties. Furthermore, matters subject to stipulation may relate to procedural or even evidentiary matters.” Swank v. Bertuca, 353 NE 2d 415 – Ill: Appellate Court, 4th Dist. 1976
A stipulation shows the judge that you are happy to clean up the drafting attorney’s (whoever that was) mess. You can clarify one term while the opposing counsel clarifies another until there’s a limited number of vague matters for the court to decide.
Then, you can ask the court in ADVANCE of a decision on the merits of the contract’s interpretation to define the terms that appear vague or ambiguous.
Declaratory judgments are decisions that the court makes in advance of another decision.
“The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any…contract or other written instrument… 735 ILCS 5/2-701(a)
Declaratory judgments allow “the court to take hold of a controversy one step sooner than normally — that is, after the dispute has arisen, but before steps are taken which give rise to claims for damages or other relief. The parties to the dispute can then learn the consequences of their action before acting.”‘ Kaske v. City of Rockford, 96 Ill.2d 298, 306, 70 Ill.Dec. 841, 450 N.E.2d 314 (1983)(citations omitted)
Once all the vague terms are defined…there is no controversy. The court must enforce the settlement as written pursuant to the language ordered.
A divorce lawyer should speak using Shakespeare’s witticism. “Brevity is the soul of wit.”
However, The words on these settlements have real world inputs and real world consequences. So, a divorce lawyer should write pursuant to Shakespeare’s other quote. “Suit the action to the word, the word to the action.”
You are paying thousands of dollars for a written divorce settlement which will govern vast portions of the rest of your life. That document should look like thousands of dollars of effort went into it! If you would like to discuss your divorce settlement with an experienced Illinois divorce attorney, contact me today.
source https://rdklegal.com/defining-terms-in-an-illinois-divorce-settlement/
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