In Illinois, a prenuptial agreement, also known as a premarital contract, is a contract between two soon-to-be-married people.
“’Premarital agreement’ means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1)
Prenuptial agreements replace the Illinois Marriage and Dissolution of Marriage Act’s rights and responsibilities…with whatever the parties contract for.
“The Illinois Premarital Agreement Act allows parties to waive or modify their marital rights by entering into a valid premarital agreement…entering into a valid premarital agreement, parties agree that their enumerated rights at dissolution are no longer governed by applicable statutes where those rights are validly modified or waived in the agreement.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018
When the parties get divorced, their divorce will be governed by the terms of the prenuptial agreement.
“The law favors the amicable settlement of property rights in marital dissolution cases and all presumptions are in favor of the validity of the agreement”MARRIAGE OF PRILL v. Prill, 2021 IL App (1st) 200516 – Ill: Appellate Court, 1st Dist., 6th Div. 2021
The Illinois Marriage and Dissolution of Marriage Act provides very few avenues for invalidating a prenuptial agreement. Pursuant to the statute, a prenuptial agreement can only be invalidated if a court deems that a party entered into the agreement involuntarily or that the prenuptial agreement is unconscionable.
“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.” 750 ILCS 10/7(a)
There may be another way to invalidate a prenuptial agreement, however. A prenuptial agreement is a contract just like any other agreement. A prenuptial agreement will contain mutual promises by both parties.
While a prenuptial agreement should just specify the terms upon which the parties will divorce, in reality, you can contract for almost anything. The promises in a prenuptial agreement can be anything from “I agree to always wash the dishes” to “you can never cheat on me.”
“A premarital agreement is a contract and, therefore, the rules governing contract interpretation are applicable.” In re Marriage of Woodrum, 2018 IL App (3d) 170369
These contract terms are valid if they are not unconscionable. If someone does not follow the term, the contract may be breached. Contracts can be unenforceable once breached.
“To establish a breach of contract claim, a plaintiff must prove the existence of a valid and enforceable contract, performance by the plaintiff, breach of the contract by the defendant, and damages or injury to the plaintiff resulting from the breach.” Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶ 13
In the case of prenuptial agreements, the valid contract is certain and the performance of the plaintiff (entering into the marriage) is also certain. The real issues with the breach of a prenuptial agreement is whether the breach was material or not (we’ll get to that in a moment) and what the damages are. The damages were.
Typically, the damages can be resolved by merely declaring the prenuptial agreement no longer enforceable.
“Under general contract principles, a material breach of a contract provision by one party may be grounds for releasing the other party from his contractual obligations.” Mohanty v. St. John Heart Clinic, SC, 866 NE 2d 85 – Ill: Supreme Court 2006
Not all mutual promises are the same.
“Covenants in an agreement will be construed as conditions precedent or as independent covenants, according to the intention of the parties and the good sense of the case.” Foreman Tr. Sav. Bank v. Tauber, 348 Ill. 280, 291 (Ill. 1932)
If a promise seems independent of the agreement as a whole, the breach of that promise does not render the prenuptial agreement invalid. For example, was a promise to wash the dishes really the contingent element to receiving contracted for alimony after a divorce?
“Where a covenant goes only to a part of the consideration on both sides and a breach of such covenant may be paid for in damages it is generally considered as an independent covenant, the breach of which may not be relied upon by the defendant to defeat liability on his part” Foreman Tr. Sav. Bank v. Tauber, 348 Ill. 280, 291 (Ill. 1932)
Conditions precedent are more specific. One good turn deserves another. Failure to do the condition precedent or follow up on the condition precedent can result in a breach of contract that renders a prenuptial agreement invalid.
“A condition precedent is defined as a condition in which performance by one party is required before the other party is obligated to perform. When contracts contain express conditions precedent, strict compliance with such conditions is required. Id. It is well established where a contract contains a condition precedent, the contract does not become enforceable or effective until the condition is performed, or the contingency occurs.” Owen v. Village of Maywood, 2023 IL App (1st) 220350 – Ill: Appellate Court, 1st Dist., 6th Div. 2023
The more specific the condition precedent, the more it must be followed or the entire prenuptial agreement becomes invalid.
“When contracts contain express conditions precedent, strict compliance with such conditions is required. Id. It is well established where a contract contains a condition precedent, the contract does not become enforceable or effective until the condition is performed, or the contingency occurs.” Owen v. Village of Maywood, 2023 IL App (1st) 220350 – Ill: Appellate Court, 1st Dist., 6th Div. 2023
Not only must a term be a condition precedent to effectuate a true breach of contract but the breach must be material.
“Under general contract principles, a material breach of a contract provision by one party may be grounds for releasing the other party from his contractual obligations.” Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 70 (2006)
A material breach is a big breach. In my dishwashing example, missing one load of dishes is NOT a material breach.
“A breach is material when it is so substantial and fundamental as to defeat the objects of the parties in making the agreement or when the failure to perform renders performance of the rest of the contract different in substance from the original agreement.” Direct Auto Insurance Co. v. O’Neal, 2022 IL App (1st) 211568
A third party, a divorce judge, is going to determine if the alleged breach was in fact material.
“[T]he determination of whether a breach is “material” depends on the inherent justice of the matter.” Wolfram Partnership v. Lasalle National Bank, 765 N.E.2d 1012, 1025 (Ill. App. Ct. 2001)
Prenuptial agreements have a great test as to whether a breach is material. Did the breach trigger the divorce?
“The breach must be so material and important as to justify the injured party in regarding the whole transaction as at an end.” Fox Lake v. Aetna Casualty Surety Co., 178 Ill. App. 3d 887, 891 (Ill. App. Ct. 1989)
If the breach occurred years before the divorce was filed then the breach probably was not material.
“[T]he time for [a spouse alleging breach] to have acted was…during the marriage, not after.” In re Marriage of Byrne, 179 Ill. App. 3d 944, 950 (Ill. App. Ct. 1989)
Finally, postnuptial agreements are also contracts that are subject to the exact same analysis as to breach.
Divorces end with a lot of broken promises. If one promise is broken, all the other promises are usually broken as well…unless they’re not. The difference is usually the quality of the lawyer’s analysis.
To schedule a free consultation with an experienced Illinois prenuptial agreement attorney, contact my Chicago, Illinois family law firm.
