What the agreement covers
A marital settlement agreement (MSA), sometimes called a marriage settlement agreement, is how many Illinois divorces resolve their issues without a trial. Section 502(a) of the Illinois Marriage and Dissolution of Marriage Act allows spouses to agree on the disposition of property, maintenance, child support, the allocation of parental responsibilities, support for children after majority under sections 513 and 513.5, and ownership of a companion animal. The agreement must be in writing, unless the court finds good cause to accept an oral agreement before an oral prove-up.
A typical Illinois MSA addresses:
- Each spouse's non-marital property and the division of marital property and debts.
- The marital home: sale, buyout or one spouse keeping it.
- Retirement accounts and the QDRO or QILDRO needed to divide them.
- Maintenance, including whether it is modifiable.
- Child support, health insurance, child care and other child expenses.
- College expenses under section 513.
- Life insurance, tax filing, attorney fees and the exchange of documents after judgment.
- Whether a spouse will resume a former name, which section 413(c) allows in the judgment.
Unconscionability review by the judge
Section 502(b) sets the standard. The terms of the agreement, except those covering the support and parental responsibilities of children, are binding on the court unless the court finds the agreement unconscionable after considering the spouses' economic circumstances and other relevant evidence. The statute does not define "unconscionable" further; the judge looks at the facts presented.
Child-related terms are treated differently. The court is not bound by an agreement on child support or parental responsibilities and reviews those terms under the child's best interests and the support guidelines in section 505.
If the court finds the agreement unconscionable, section 502(c) lets it ask the spouses for a revised agreement or decide the issues itself after a hearing. Section 502(b) also says that if testimony at an uncontested prove-up conflicts with the written agreement incorporated into the judgment, the written terms control.
The allocation judgment and parenting plan travel with it
When there are children, the MSA usually sits beside two other documents. A parenting plan under section 602.10 is a written, signed agreement that sets significant decision-making, the parenting-time schedule, a mediation provision for future disputes, access to records, notice rules for moves, transportation, communication and other terms. An allocation judgment, defined in section 600, is the court's judgment allocating parental responsibilities.
Section 602.10(d) says an agreed parenting plan binds the court unless the court finds it is not in the child's best interests, and the court must explain any refusal in express findings. The court then enters the allocation judgment along with the judgment for dissolution of marriage, which incorporates the MSA. Our post on when to modify a parenting plan covers later changes.
Terms that need extra care
Child support that differs from the guidelines
Parents can agree on child support, but section 505(a)(3.4) treats the guideline amount as a rebuttable presumption. If the agreed amount is different, the court must enter written findings that state the reasons for the deviation and the guideline amount without it. An agreement that sets lower support with no explanation may not be approved as written.
Life insurance and beneficiary designations
Section 503(b-5) directs the court to allocate life insurance that is marital property. It also says that if a spouse named the other spouse as beneficiary before the divorce, that designation is generally not effective after the judgment unless the judgment names the former spouse as beneficiary, the insured names the former spouse again after the judgment, or the proceeds are held for a child or dependent. That rule does not apply to policies governed by ERISA or other federal law that preempts it. If the agreement requires insurance to secure support, it should say who is insured, the amount, the beneficiary and for how long.
Maintenance and taxes
State whether maintenance is modifiable, when it ends, and what happens if the recipient remarries or cohabits. Section 503(d) lists the tax consequences of the property division as a factor, so the agreement should be clear about who claims the children, who pays any tax on a sale, and how refunds or balances due for joint returns are handled.
Modifiable and non-modifiable terms
Section 502(f) explains which parts of an agreement can change later.
| Term | Can it be modified? | Source |
|---|---|---|
| Child support | Yes, on a substantial change in circumstances, and on other grounds section 510 allows | 5/502(f), 5/510 |
| Support after majority (college, adult disabled child) | Yes, on a substantial change in circumstances | 5/502(f) |
| Parental responsibilities | Yes, on a substantial change in circumstances; decision-making changes have timing limits | 5/502(f), 5/610.5 |
| Maintenance | Yes, unless the agreement makes it non-modifiable in amount, duration or both | 5/502(f), 5/510 |
| Property division | No. Section 502(f) says property terms are never modifiable, and section 510(b) allows a change only if conditions exist to reopen the judgment under Illinois law | 5/502(f), 5/510(b) |
| Other terms | The agreement can limit or bar changes if it says so | 5/502(f) |
Maintenance language needs special care. If the agreement does not state that maintenance is non-modifiable, section 502(f) treats it as modifiable on a substantial change of circumstances. Section 510(c) also ends future maintenance on the death of either party, the recipient's remarriage, or the recipient's cohabitation on a resident, continuing conjugal basis, unless a written agreement says otherwise.
Enforcing the agreement after judgment
Under section 502(d), the agreement's terms are set out in the judgment, or, if the agreement says they will not be, the judgment identifies the agreement and states that the court approved it. Section 502(e) says terms set forth in the judgment can be enforced by every remedy available for a judgment, including contempt, and also as contract terms.
Section 511 says enforcement starts with a petition filed in the judicial circuit where the judgment was entered or last modified. If a party failed to comply without compelling cause or justification, section 508(b) requires the court to order that party to pay the other side's reasonable attorney fees and costs. See our guides to a petition for rule to show cause in Cook County and post-decree motions.
From draft to judgment in Cook County
- Exchange financial affidavits and supporting documents so both spouses know the full picture.
- Negotiate directly, through attorneys or in mediation. Under Cook County Circuit Court Rule 13.4(e)(vi)(d), an agreement reached in mediation is not binding until it is in writing, signed, not unconscionable and approved by the court, or is stated on the record and approved by a court that excuses a written agreement for good cause.
- Draft the MSA, and the parenting plan and allocation judgment if there are children.
- Attend the prove-up before your Domestic Relations Division judge, who reviews the agreement and testimony.
- The judge enters the judgment for dissolution of marriage incorporating the agreement. Then complete the follow-up steps, such as deeds, account transfers and retirement orders.
Bring recent tax returns, pay stubs, account and retirement statements, mortgage and debt statements, insurance information and any premarital agreement. Court filing fees are charged by the Clerk of the Circuit Court and vary by filing; check the Clerk's current fees before you file.
Common mistakes
- Leaving maintenance silent on modifiability when both spouses intended it to be fixed.
- Dividing retirement accounts without saying who prepares the QDRO and by when.
- Vague terms, such as "split the college costs," without a cap, share or process.
- Signing a mediator's memorandum and assuming it is the final agreement.
- Ignoring tax consequences, which section 503(d) lists as a property factor.
The other spouse can refuse to sign, propose changes, ask for discovery or argue at prove-up that terms are unconscionable, which can move the case toward a hearing or trial.
How Chicago Family Attorneys can help
- Draft or review marital settlement agreements, parenting plans and allocation judgments.
- Negotiate terms with the other spouse or their attorney, or support you through mediation.
- Prepare you for the prove-up and present the agreement in Cook, DuPage, Will and Lake Counties.
- Enforce or modify an agreement after judgment.
An uncontested divorce is a $1,500 flat fee, and court filing fees are not included. Limited scope help includes document drafting from $500 or one hearing appearance from $1,200. Self Represented Documents are $399. Full representation starts with an initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. See the uncontested divorce cost page, our uncontested divorce and divorce mediation pages, how to get an uncontested divorce in Illinois, and whether mediation is mandatory.
This article is general information about Illinois law, not legal advice for your situation, and it does not predict the outcome of any case.