I prepare dozens of prenuptial agreements every year. I tell my clients “Put this in a drawer or safe deposit box. I hope you never have to look at it again.” I also keep an electronic copy of the prenuptial agreement and hope that I never have to look at the prenuptial agreement again, either.
But, what if the fully executed prenuptial agreement is lost? Can you still enforce the prenuptial agreements terms?
Illinois Prenuptial Agreements Are In Writing And Signed By Both Parties
In Illinois, a premarital agreement is “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1). A premarital agreement is enforceable without consideration but “must be in writing and signed by both parties.” 750 ILCS 10/3
If you don’t have a copy of the prenuptial agreement that is “in writing and signed by both parties” do you have a prenuptial agreement at all?
In re Marriage of Nitsche 2026 IL App (2d) 250488-U provides the answer.
“Section 3 of the [Uniform Premarital Agreement] Act provides simply that a premarital agreement must be in writing and signed by both parties. The statute does not address how a party must prove that the agreement was signed. Crucially, the statute does not require that the original document or a copy bearing both parties’ signatures be produced. Further, it does not prohibit execution being established through secondary evidence.” In re Marriage of Nitsche 2026 IL App (2d) 250488-U (this is a rule 23 case which is not controlling but can still be used for persuasive purposes).
Courts cannot presume that the original prenup with both signatures MUST be presented as evidence because the Uniform Premarital Agreement Act does not say that.
“A court may not depart from the plain language of the statute and read into it exceptions, limitations, or conditions” IMOTORSPORTS v. VANDERHALL MOTOR WORKS, 224 NE 3d 221 – Ill: Appellate Court, 2nd Dist. 2022
“Given the [Uniform Premarital Agreement] Act’s silence on this evidentiary question, we therefore conclude that general Illinois evidentiary rules govern how a party may prove the execution of a premarital agreement.” In re Marriage of Nitsche 2026 IL App (2d) 250488-U
You Do Not Need A Signed Copy Of Your Prenuptial Agreement. You Just Need Proof That The Prenuptial Agreement Was Signed
Proving something in divorce court does not require absolute irrefutable proof. Divorce courts are civil courts and “civil cases have a lower standard—preponderance of the evidence” Galich v. ADVOCATE HEALTH AND HOSPITAL, 251 NE 3d 930 – Ill: Appellate Court, 1st Dist., 6th Div. 2024
“A party seeking to prove the terms of a[ contract] must do so by a preponderance of the evidence.” Travelers Indem. Co. v. Rogers Cartage Co., 98 NE 3d 524 – Ill: Appellate Court, 1st Dist., 1st Div. 2017
“A proposition proved by a preponderance of the evidence is one that has been found to be more probably true than not true.” In re Marriage of Stockton, 937 NE 2d 657 – Ill: Appellate Court, 2nd Dist. 2010
So, it simply has to be more likely than not that the prenuptial agreement as described was in writing and signed by both parties at some point.
“[A] party may use secondary evidence to establish the existence of the terms of a lost writing.” Sears, Roebuck and Co. v. Seneca Ins. Co., 627 NE 2d 173 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993
Secondary evidence is “evidence that is inferior to the primary or best evidence and that becomes admissible when the primary or best evidence is lost or inaccessible” Black’s Law Dictionary (11th ed. 2019)
This definition of secondary evidence explains why the best evidence rule does not apply to a lost executed premarital agreement.
No Need For The Best Evidence Rule If The Premarital Agreement Is Lost
Normally, per the best evidence rule, you can only prove a writing exists by submitting that original writing to the court. “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Ill. R. Evid. 1002
Even if you have the original premarital agreement in a drawer somewhere you can submit a copy of the premarital agreement. “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Ill. R. Evid. 1003
You can use secondary evidence if the premarital agreement is lost.
“The original is not required and other evidence of the contents of a writing, recording, or photograph is admissible if-
(1)Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith” Ill. R. Evid. 1004
What Do You Need If You Cannot Find Your Premarital Agreement In An Illinois Divorce?
It’s easy to prove that a prenuptial agreement existed and what the prenuptial agreement’s terms were if the prenuptial agreement was signed in the last 20 years. That’s because you probably have an email of the draft, emails confirming the version you and your spouse approved, emails confirming a signing date of the prenuptial agreement. Furthermore, the lawyer who prepared the prenuptial agreement also has copies of these draft versions of the prenuptial agreement and corroborating correspondence regarding the same.
If you’ve lost your premarital agreement, all is not lost. Contact an experienced Illinois divorce attorney today to find sufficient secondary evidence of your premarital agreement and its terms.
Russell Knight is an Illinois divorce attorney with over 19 years of experience drafting, defending and attacking prenuptial and postnuptial agreements in Illinois.
Statutes, Case Law And Rules Cited In The Article “Help! I Can’t Find My Premarital Agreement And I’m Getting Divorced In Illinois”
In re Marriage of Nitsche 2026 IL App (2d) 250488-U
IMOTORSPORTS v. VANDERHALL MOTOR WORKS, 224 NE 3d 221 – Ill: Appellate Court, 2nd Dist. 2022
Galich v. ADVOCATE HEALTH AND HOSPITAL, 251 NE 3d 930 – Ill: Appellate Court, 1st Dist., 6th Div. 2024
Travelers Indem. Co. v. Rogers Cartage Co., 98 NE 3d 524 – Ill: Appellate Court, 1st Dist., 1st Div. 2017
In re Marriage of Stockton, 937 NE 2d 657 – Ill: Appellate Court, 2nd Dist. 2010
Frequently Asked Questions About Lost Prenuptial Agreements In An Illinois Divorce
If my signed prenuptial agreement is lost can I still enforce it? Yes. You just need some kind of evidence as to the prenuptial agreement having been written and signed. You will also need evidence of the prenuptial agreement’s terms. These all can usually be found in old emails.
What is the difference between a lost prenuptial agreement and a prenuptial agreement than never existed? A Prenup that was written and signed at any point in the past is still binding even if you can’t find it. A prenup that was never written or signed, simply never really existed and whatever agreement you believed you reached cannot be enforced.
How do you prove that a lost prenuptial agreement existed? You just need to have proof that it is more likely that the prenuptial agreement was written and signed than that it was not. Any draft of the prenup or correspondence about signing will likely satisfy that standard called “the preponderance of the evidence.”
Can an unsigned copy of a prenuptial agreement be evidence of the terms of the prenuptial agreement? Yes. An unsigned version of a prenuptial agreement is secondary evidence which can persuade a judge that a similar signed prenuptial agreement existed if there is reliable testimony that the prenuptial agreement was, in fact, signed at some point.
