APPEAL from the Circuit Court of Pike County; the Hon. CECIL
J. BURROWS, Judge, presiding.
MR. JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:
This appeal involves the effect of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) upon a separation agreement.
The parties, petitioner Clara Belle Miller and respondent Delmar Keith Miller, were married on September 10, 1950. On December 18, 1980, the final judgment dissolving the parties' marriage was filed. This judgment of dissolution incorporated by reference a separation agreement signed by the parties. The judgment stated that under section 502(b) of the Act "the separation agreement presented to the court is not unconscionable and therefore is binding on the court."
On appeal, the respondent contends that: (1) the trial court used an improper standard when it determined that the parties' separation agreement was not unconscionable, and (2) the trial court erred by not finding that the parties' separation agreement was unconscionable.
In relevant part, section 502 of the Act states:
(a) To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children.
(b) The terms of the separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
(c) If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or upon hearing, may make orders for the disposition of property, maintenance, child support and other matters." Ill. Rev. Stat. 1979, ch. 40, par. 502(a), (b), (c).
The effective date of the "new" act was October 1, 1977. (In re Marriage of Olsher (1979), 78 Ill. App.3d 627, 397 N.E.2d 488.) Oddly enough there are few Illinois appellate court cases that cite to section 502 of the Act when reviewing the propriety of a separation agreement. For example, in In re Marriage of De Frates (1980), 91 Ill. App.3d 607, 414 N.E.2d 1188, the petition for dissolution was filed in 1978, and, on appeal, one of the issues was whether the trial court erred by failing to set aside the separation agreement; but the court did not mention section 502(b) of the Act. (Also see Olsher.) Perhaps, as the petitioner suggests, the reason these and other cases have not applied the unconscionability standard of section 502(b) of the Act is because the parties have not contested the separation agreements on unconscionability grounds in the trial courts>.
Nevertheless, as the Historical and Practice Notes to section 502(b) of the Act point out, it is clear that section 502(b) has changed Illinois law with respect to determining the validity of separation agreements.
"Subsection (b), which derives from section 306(b) of the Uniform Act, provides that the terms of the separation agreement, * * * are binding on the court unless the agreement is found to be unconscionable. This is intended to encourage party autonomy, * * *.
Under prior Illinois law there was a different standard for court approval. Settlement agreements were approved by the court if found to be fair and reasonable. Zupancic v. Zupancic, 48 Ill. App.3d 256, 362 N.E.2d 1124, 6 Ill. Dec. 302 (3d Dist. 1977). But the court was not bound by the terms of a proposed settlement agreement and could in its discretion adopt it or reject it `as seems consistent and proper from the situation of the parties'. [Citations.] * * *.
This section does not eliminate many of the traditional grounds for setting aside settlement agreements, including grounds of fraud, coercion, and violation of any rule of law, public policy or morals. See Reininger v. Reininger, 67 Ill. App.3d 21, 384 N.E.2d 546, 23 Ill. Dec. 752 (4th Dist. 1978). However, `fairness' and other similar standards for setting aside settlement agreements have been replaced by the standard of ...