Modification Provisions in Settlement Agreements

The general rule as earlier cited is that child support remains modifiable by a court of competent jurisdiction. In addition to not enforcing the visitation for support tradeoff, courts also will not enforce provisions attempting to prevent modification of the support provisions in the agreement. In re Marriage of Sutton, 178 Ill.App.3d 928, 533 N.E.2d 1125, 128 Ill.Dec. 37 (3d Dist. 1989). Courts will, however, enforce provisions enlarging a parent’s obligation for support. In re Marriage of Bett, 172 Ill.App.3d 742, 526 N.E.2d 1138, 122 Ill.Dec. 599 (4th Dist. 1988) (post-majority support, if for educational purposes, is not limited to disabled children).

Various sections of the IMDMA address court approval of the parents’ settlement agreement, the entry of a judgment by the court in accordance with the settlement agreement reached by the parties, and modification and termination of child support after the entry of a judgment. IMDMA §502(f) specifies:

Except for terms concerning the Support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. [Emphasis added.]

See also 750 ILCS 5/510(a)(modification section that cross-reference §502(f), among other sections).

Since children are – or at lease can be – overlooked (unless there is someone appointed to speak expressly for their interests) when parents are trying to settle their own financial matters and establish separate homes and lives in the process of divorcing, this statute, coupled with IMDMA §510 on termination and modification, allows the state to act in loco parentis for the children, safeguarding their established right to continued reasonable and necessary financial support.

Under prior law, courts upheld provisions in settlement agreements that barred modification of child support. For example, Wohl v. Wohl, 28 Ill.App.3d 298, 328 N.E.2d 138 (1st Dist. 1975, upheld a provision allowing the custodial mother an absolute right to become employed without having her increased income from that employment be a factor in any later child support modification proceeding.

Since the IMDMA was passed, Illinois courts have become more aware of their responsibility to protect child support from interference or encroachment by parents who may be too interested in their own economic survival (at the expense of the children) or merely misdirected in their perceptions of the children’s best interests. In Miler v. Miller, 163 Ill.App.3d 602, 516 N.E.2d 837, 114 Ill.Dec. 682 (1st Dist. 1987), for example, the parents modified their settlement agreement to eliminate the father’s obligation for college expenses in return for the mother’s getting an extra lump-sum payment very shortly before the child became emancipated. The court did not approve. Similarly, in In re Support of Bayuk, 79 Ill.App.3d 877, 398 N.E.2d 1109, 35 Ill.Dec. 159 (1st Dist. 1979), the appellate court considered a trial court decision that upheld a provision in a decree limiting the right of the custodial mother to seek an increase in child support. Interpreting the decree pursuant to the then-new IMDMA, the appellate court disapproved, reversing and holding that such a provision was contrary to the public policy of Illinois, noting that the language of IMDMA §502(f) prohibits terms of this kind from being binding on or enforceable by a court.

For further discussion, see §4.64 below.

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