When parties are negotiating terms of a Marital Settlement Agreement (MSA) or a Joint Parenting Agreement (JPA) at the eleventh hour, they might be inclined to make concessions for the sake of “getting it over with.” Perhaps the parties are inclined to insert a provision into the agreement that will not take effect for a couple of years and assume they will deal with it at that time. However, parties should be very aware of and sensitive to the language in such an agreement because a court is likely to enforce the terms.
Recently, the Illinois Supreme Court reiterated the enforceability of a JPA that was incorporated into a Judgment of Dissolution. In In re Marriage of Coulter, 2012 IL 113474, the parties agreed in the JPA that the mother would not remove the children to California for the first 24 months after entry of the JPA. If the parties were unable to reach an agreement between the 24th and 36th months, the mother was free to remove the children to California without any contest from the father. Before the expiration of the 36th month, the father filed an emergency petition seeking to enjoin the mother from removing the children to California.
The Illinois Supreme Court found that the JPA was enforceable as both an order of the court and as a contract. When the JPA was incorporated into the judgment, the trial court accepted the parties’ agreement regarding removal of the children. In rejecting the father’s argument on appeal that no court had determined if the removal was in the children’s best interests, the Court noted that the fit parents’ considered opinion regarding the best interests of their children – as reflected by their agreement regarding custody, visitation and removal – was entitled to great deference by the trial court. In other words, the question of the children’s best interests had been resolved by the parties in the JPA, and the trial court gave proper deference to their decision. Accordingly, where the mother complied with the requirements set forth in the JPA, she was free to remove the children to California.
The lesson to be learned from In re Marriage of Coulter is that the court will enforce provisions in a JPA that address issues of custody, visitation and removal and are incorporated into the judgment. Accordingly, it is unwise for a parent to agree to a provision with the expectation of objecting to even altering the agreement at a later date. Rather, the time to object is during negotiations before the court has given its stamp of approval.