The parties were getting divorced. They had a written Post Nuptial Agreement (PNA). This was an agreement that they made after they were married. The PNA gave the parties’ counselor the sole power to decide who would have custody of the children. The counselor determined whether a party had violated the agreement. If the party had violated the PNA, that party would lose any rights to custody of the children.
The trial court said that the agreement was unconscionable. The PNA said that wife would forfeit all rights to the parties’ residence if she “unreasonably” filed for divorce. But the meaning of “unreasonable” was vague. The idea was for the parties to stay together forever for the children’s sake. Husband alone made the decision about whether wife was unreasonable.
The PNA was unenforceable as it violates public policy. Its terms were significantly one-sided. It is the public policy of this state that courts have an independent duty. The court is to ensure that the arrangements made by divorcing parents that directly affect their children are in the best interest of the children. Arrangements include those relating to custody, child support, and visitation.
The law wants to “promote the amicable settlement of disputes” between the parties to a marriage. The law encourages the use of agreements. But, the terms of such agreements that affect child support, custody, and visitation are subject to court oversight. This type of agreement must be approved by the court in order to be enforceable. Parents “are not at liberty to make agreements which affect the interests of their children without obtaining the approval of the court.”
The Trial Court had granted sole custody to wife. This was not against the manifest weight of the evidence. This is the standard for the Appellate Court to review the trial court decision.
In re Marriage of Iqbal, 2014 IL App (2d) 131306.
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