Illinois Marital Separation Agreements

Settlement agreements can be drafted by the parties to resolve a wide range of issues, and can help show the court that the matter is uncontested (both parties are in agreement).

The Marital Settlement Agreement (MSA), or Civil Union Settlement Agreement, that we provide to you will cover every major circumstance and enable you to deal with the following issues:

  • Visitation
  • Child Support Payments Under Illinois Law
  • Spousal Maintenance Under Illinois Law
  • Property Division
  • Division of Debts
  • Health Insurance
  • Disposition of the Marital Home
  • Pension Plans
  • Tax Issues

Future Dispute Settlement

Ordinarily you execute the written Agreement before you file your divorce papers, normally at the time that you separate. If you purchase our combination package you will receive both the written agreement and your dissolution (divorce) forms. This allows you to negotiate and execute your Agreement and then to file for your divorce as soon as the waiting period has been completed.

What is a Marital or Civil Union Settlement Agreement?

A marital (or civil union) settlement agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together. When you initially execute a marital separation agreement you usually do not have to file the separation agreement with the court to be effective.

Why is a Marital or Civil Union Settlement Agreement important?

When both parties are in agreement and cooperating, a written agreement leaves no doubt about the details of the ending of your marriage relationship.

Do I have to file a Marital or Civil Union Settlement Agreement with the court?

When you initially execute your Settlement Agreement you do not have to file the Agreement with the Court to be effective.

The typical separation agreement, or a stipulation of settlement resolving a divorce, should state whether the agreement is to survive the judgment of divorce as a separate contract, or whether it should be merged and incorporated into the judgment of divorce thus allowing for modification similar to a court order. Which should you choose?

Where it Does Not Matter:

Your decision will have no effect on the issue of custody and visitation because these issues can be modified until a child reaches the age of 18. The court will base its decision upon whether there is a change of circumstances that render it in the child’s best interest to modify the custody and/or visitation provisions.

Your decision will also have no effect on the issue of distribution of assets. The Court will not modify the terms of distribution.

Where it Makes a Significant Difference:

1) Spousal Support/Maintenance – If you have stipulated in advance that your divorce agreement will be merged into the judgment of divorce, then the court can later modify the duration and amount of maintenance if circumstances are presented to warrant the raising or lowering of the amount. However, if the divorce agreement survives the judgment, it is a contract that the court may not modify.

2) Child Support – If the agreement on divorce merges into the judgment, then the court may modify that support upward or downward when a change of circumstances may warrant modification. On the other hand, if the agreement survives the judgment, then the standard for upward modification is an unforeseen and unanticipated change of circumstances that would warrant an increase in support. However, a request for a downward modification in support is significantly harder to prove, and becomes something to think about when deciding whether or not to elect this option.

3) Right to Sue – If the agreement survives as a separate contract, then even if the judgment is modified by the court, the other party can sue under contract law to enforce the contract obligation and obtain a money judgment for what is owing and seek to collect it. If, however, the agreement is merged and the judgment is modified, then the payer cannot separately sue for enforcement of the contract. Indeed, in this situation there is no separate surviving contract on which to sue.

What is the difference between a contested or uncontested dissolution (divorce)?

Dissolutions and divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes any issue in the case – the divorce itself, the property division, child custody, alimony, etc. By entering into a written settlement agreement you make your divorce an uncontested divorce.

How long are the parties bound by a Marital or Civil Union Settlement Agreement?

A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. You and your spouse or partner can amend the agreement if you both consent to the changes; or it can be modified by a court order, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.

Do the courts review the fairness of a Marital of Civil Union Settlement Agreement?

In an uncontested dissolution or divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses without fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness. In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues.

What is the difference between “marital property” and “non-marital property”? 

In an “equitable distribution” state like Illinois, all property acquired during the marriage or civil union is “marital (or civil union) property” and all property is divided into marital (or civil union) property (which means it is both yours and your spouse or partner’s) and non-marital (or non-civil union) property (which means the property that belongs to either you or your spouse or partner alone).

In Illinois, “marital (or civil union) property” is all real and personal property acquired by either party subsequent to the marriage or civil union, and presently owned, except property determined to be separate property.

Illinois Compiled Statutes 750 ILCS 5/503 specify that non-marital (or non-civil union) property is:

(1) Property acquired by gift, legacy or descent;

(2) Property acquired in exchange for property acquired before the marriage or civil union in exchange for property acquired by gift, legacy or descent;

(3) Property acquired by a spouse after a judgment of legal separation;

(4) Property excluded by valid agreement of the parties;

(5) Any judgment or property obtained by judgment awarded to a spouse from the other spouse;

(6) Property acquired before the marriage;

(7) The  increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and

(8) Income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.

How is property divided in Illinois? 

In Illinois, the basic rule is that all marital or civil union property is divided equitably (fairly) and not necessarily equally.