If you and your spouse have decided to divorce, you may have already begun the process of negotiating the details. You may even reach an agreement on most or all of the related considerations—including property division, spousal maintenance, and parenting arrangements—before you file your divorce petition. In almost every case, a negotiated agreement provides for a divorce with significantly reduced stress, anxiety, and contentiousness compared to one requiring courtroom litigation. Sometimes, however, a couple’s proposed agreement does not meet the standards of the court and may be rejected on the basis that it is unconscionable. To avoid having your agreement refused by the court, it is necessary to understand the concept of unconscionability.
The court cannot and will not incorporate your settlement agreement into its final judgment without first reviewing and approving the proposal. For property and maintenance issues, the law requires the court to approve your agreement as long as the terms are not found to be unconscionable or dramatically unfair to one party. For example, if you and your spouse present an agreement to the court which says that you get 100 percent of the marital property without any reasonable justification, your agreement would probably be found unconscionable.
When the court rejects an unconscionable agreement, you and your spouse will have the opportunity to revise it. You may also choose to dispute the court’s decision at a hearing. If you and your spouse cannot reach a more reasonable agreement, the court will develop its own orders regarding asset division, spousal support, and other financial considerations, regardless of what was proposed in your agreement.
Negotiate With a Knowledge of the Law
While it is entirely possible for you, as an average person, to develop a reasonable settlement agreement with your spouse, you do need to have a basic understanding of the requirements for a divorce in Illinois. This is particularly important regarding property division and maintenance. Your agreement does not need to follow the law as closely as a court order would, knowing what the law considers to be fair is a good starting place. Then, you and your spouse can develop any type of agreement you wish as long as the rights of each party are reasonably protected.
You can also prevent having your agreement rejected as unconscionable by working with an experienced Kane County divorce attorney along the way. Contact Bochte, Kuzniar & Navigato, P.C. today to schedule a free consultation with a professional who understands the law. We will work with you to create a settlement agreement that meets your needs as well as statutory requirements. Call 630-377-7770 for a free consultation.