A Negotiated Divorce Agreement Helps Make Life Easier

 Posted on November 27, 2015 in Divorce

A marriage can legally end in just two ways, and both are incredibly difficult experiences. The first is by the death of either spouse, and, of course, the death of a loved one is always challenging. The second, as you probably realize, is divorce, or the dissolution of the marriage, according to the law in Illinois. For many, divorce is no less traumatic than a loved one’s death, and can even be made worse by months of intense fighting and brutal courtroom litigation. There is, however, an alternative to a hotly contested divorce process and, while still not necessarily easy, negotiating the terms of your divorce agreement outside of court may be the best solution for all parties involved.

What Can We Negotiate?

The laws governing divorce in Illinois are contained primarily in the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The IMDMA is a comprehensive set of statutes that covers, often in great detail, the responsibilities of each divorcing party, as well as those of the court, for most matters of family law. Regarding divorce agreements, the IMDMA specifically acknowledges that a negotiated agreement promotes the "amicable settlement of disputes between parties to a marriage." It goes on to specify that such an agreement may contain terms regarding spousal maintenance, the division of property, the allocation of parental responsibilities, and child support.

Binding Provisions

The financial and material terms of a properly negotiated agreement—except those related to the care of the children, are binding upon the court. This means that, unless the court finds them to unconscionable, or much too one-sided, the agreement regarding spousal maintenance and property division automatically become part of the final divorce judgement. While findings of unconscionability are not extremely common, they do occur and force a couple to renegotiate their agreement or leave it to the court to sort out.

Non-Binding Provisions

The other concerns in a divorce agreement, namely the allocation of parental responsibilities and child support, are not considered to be binding upon the court. They may still be accepted if, upon detailed review, the court determines they were developed in observance of the spirit of the laws designed to protect the best interests of the child. The difference is that "unconscionable" refers to an agreement that is demonstrably unfair, while unacceptable child-related provisions may be perfectly "fair" to the parents but fail to meet the child’s needs appropriately. If such provisions are not approved, the court may permit the parties to revise them, even ordering mediation, if necessary, so that a better agreement can be reached.

Work With an Attorney

For professional assistance with drafting a sound, workable divorce agreement, contact an experienced Arlington Heights family law attorney. The knowledgeable team at A. Traub & Associates understands the law and can offer responsible advice for creating an agreement that will serve you and your family for years to come. Cal today to schedule an appointment at one of our two convenient office locations.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000

http://www.illinoiscourts.gov/opinions/appellatecourt/2013/1stdistrict/1113751.pdf