Oral Agreements Are Rarely Sufficient in Divorce

 Posted on March 21, 2017 in Kane

In most divorce cases, there are a variety of different considerations that must be addressed, including the division of marital property, maintenance concerns, and the allocation of parental responsibilities. Fortunately, many divorcing spouses are able to remain civil and diligently negotiate a reasonable agreement that resolves all of their outstanding issues. While such cooperation is not always possible, spouses who can work together toward reaching a settlement often realize significant savings in terms of time and money throughout the process.

During the course of negotiations or informal conversations, you and your spouse may agree to certain terms. No matter what is said or agreed to orally, it is important that you record all of your agreements in writing so that there is no confusion or uncertainty down the road.

Most Oral Agreements Are Unenforceable

As a parent going through a divorce, you and your spouse could reach a verbal agreement regarding which days your child will spend with you but make no effort to acknowledge your agreement in writing. If, one day, you arrive to pick up your child and your spouse refuses to let the child go with you, you could be temporarily out of luck. Your only recourse may be to petition the court to get a parenting time schedule in writing so that your rights are protected.

A Notable Exception

Earlier this month, an Illinois appeals court heard a case that involved oral agreements in a divorce. In this particular situation, the parties had come together for scheduled depositions prior to trial, but over the course of the afternoon, the spouses reached an oral agreement regarding their outstanding issues. The two went into the courtroom and verbally listed the terms of the agreement for the court and each spouse acknowledged that they would abide the settlement—a written version of which would be forthcoming.

One week later, the husband fired his lawyers, requested a reopening of discovery and asked for a trial. The circuit court judge allowed the man to replace his attorneys, but denied the other request, maintaining that the oral agreement made in the courtroom was tantamount to a contract. The judge issued a divorce judgment that included the agreed-upon terms. On appeal, the appellate court upheld the lower court’s ruling.

Legal Guidance for Divorce Agreements

The Illinois Marriage and Dissolution of Marriage Act effectively encourages divorcing spouses to reach an amicable agreement whenever possible but specifies that it is in writing. The court may approve exceptions for good cause shown, but such exceptions are unlikely since most oral agreements are not recorded on the record as in the aforementioned case.

If you and your spouse are in the process of negotiating the terms of your divorce, an experienced Kane County divorce attorney can help ensure your agreement will withstand any future challenges. Call MKFM Law at 630-549-0960 to schedule a confidential consultation with a member of our team today.

Sources:

http://www.illinoiscourts.gov/R23_Orders/AppellateCourt/2017/1stDistrict/1153393_R23.pdf