Drafting Good Settlement Agreements
by Wes Cowell, updated 3 July 2015
ENforceable as Contracts:
Interpreting a marital settlement agreement is a matter of contract construction. In re: Marriage of DUndas, 355 Ill.App.3d 423, 291 Ill.Dec.. 229, 823 N.E.2d 239 (2005) We seek to effectuate the parties intent at the time the agreement was executed. In re: Marriage of Hildebrand, 166 Ill.App.3d 795, 798 117 Ill.Dec. 644, 520 N.E.2d 995 (1988). Unless the agreement is incomplete or ambiguous, we look to the language of the agreement itself to determine the parties' intent. Hildebrand, 166 Ill.App.3d at 798, 117 Ill.Dec. 644, 520 N.E.2d 995. The terms of the agreement must be given their plain and ordinary meaning. Dundas, 355 Ill.App.3d at 426, 291 Ill.Dec. 229, 823 N.E.2d 239.
Michaelson v. Michaelson, 359 Ill.App.3d 706, 834 N.E.2d 539 (1st. Dist., 2005)
Nunc Pro Tunc Orders:
¶ 15 Herrera’s argument that the jurisdictional defect was cured by the subsequent addition of a Rule 304(a) finding “nunc pro tunc” is incorrect. Paraphrasing Harreld, a nunc pro tunc order is an order entered now for something previously done, so that the record speaks now of what was actually done then. Harreld, 2014 IL App (2d) 131065, ¶ 13, 24 N.E.3d 786. A nunc pro tunc order is used to “correct the record of judgment, not to alter the actual judgment of the court.” In re Marriage of Takata, 304 Ill. App. 3d 85, 92, 709 N.E.2d 715, 720 (1999). Because a nunc pro tunc amendment may reflect only what was actually done by the court but was omitted due to clerical error, a nunc pro tunc amendment must be based on some note, memorandum, or other memorial in the court record. Harreld, 2014 IL App (2d) 131065, ¶ 13, 24 N.E.3d 786; Marriage of Takata, 304 Ill. App. 3d at 92, 709 N.E.2d at 720. For instance, the correction cannot be based on merely the personal recollection of a trial judge or other person. Johnson v. First National Bank of Park Ridge U/T #205, 123 Ill. App. 3d 823, 827, 463 N.E.2d 859, 862 (1984); Fox v. Department of Revenue, 34 Ill. 2d 358, 360, 215 N.E.2d 271, 272 (1966) (nunc pro tunc finding cannot rest on a person’s recollection, or on new testimony or affidavit). ¶ 16 “A nunc pro tunc order may not be used to cure a jurisdictional defect, supply omitted judicial actions, or correct a judicial error under the pretense of correcting a clerical error.” Harreld, 2014 IL App (2d) 131065, ¶ 13, 24 N.E.3d 786; Marriage of Takata, 304 Ill. App. 3d at - 8 1-18-1404 92, 709 N.E.2d at 720.
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