Prenuptial agreements are supposed to guarantee certain outcomes in a possible divorce. In Illinois, prenuptial agreements do a very good job guaranteeing outcomes in regard to denying statutorily required property division in a divorce. Illinois prenuptial agreements are not as effective at guaranteeing a denial of maintenance (formerly known as alimony).
When potential clients call my office inquiring about a prenuptial agreement, I tell them “You are probably looking for one of three kinds of prenups. Let me describe them and tell me which one sounds the most like what you have in mind: 1) You want to keep the assets you have before the marriage. Anything you acquire after the marriage will be divisible. Frankly, that’s what the law requires, anyways; 2) You are a saver and your future spouse is a spender. You want to keep everything you bring into the marriage and everything that you earn after the marriage that you hold in your own name you will also keep; 3) You don’t want to pay your fiancée a cent if you get divorced. No assets. No alimony.”
If the potential client has already been married before, they are likely to pick option 3: no asset division and no maintenance.
Illinois Marriage and Dissolution of Marriage Act And Case Law Regarding Maintenance and Prenuptial Agreements In Illinois
Contracting for the denial of any maintenance whatsoever is problematic. The Illinois Marriage and Dissolution of Marriage Act and Illinois divorce courts do not want destitute divorcees wandering the streets.
“If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.” 750 ILCS 10/7(b)
Every waiver of maintenance will be considered based on the facts of the case during the divorce and whether those facts were foreseen at the time of the prenuptial agreement’s signing.
“The statute focuses on the totality of the circumstances at the time of the divorce and whether those circumstances were reasonably foreseeable at the time the parties executed the Agreement.” In re Marriage of Amyette, 229 NE 3d 526 – Ill: Appellate Court, 3rd Dist. 2023
For example, if a healthy, working wife dropped out of the workforce and became disabled at the time of the divorce, those are new facts that were, likely, not anticipated by the parties at the time of the prenuptial agreement’s signing. These two issues would weigh in favor of voiding the waiver of maintenance.
Illinois case law is also suspicious of a waiver of maintenance. A prenuptial agreement is a contract. A fair contract is one where you get something extra if you’re giving something up.
“Illinois requires that an [prenuptial] agreement guarantee both parties an equitable financial settlement in lieu of a waiver of their rights to property or maintenance.” Warren v. Warren, 523 NE 2d 680 – Ill: Appellate Court, 5th Dist. 1988
“[T]he provision [in a prenuptial agreement] for total waiver of [one spouse’s] right to maintenance is not fair and reasonable due to [that spouse’s meager] financial circumstances.” Warren v. Warren, 523 NE 2d 680 – Ill: Appellate Court, 5th Dist. 1988
The more global test is really whether the prenuptial agreement was unconscionable or not.
“A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
the agreement was unconscionable when it was executed and, before execution of the agreement” 750 ILCS 10/7(a)(2)
“The test for establishing an unconscionable contract is to determine whether the agreement is one which no reasonable person would make and no honest person would accept.” In re Marriage of Drag, 326 Ill. App. 3d 1051, 1055 (2002)).
A waiver of maintenance may be upheld if the spouse has sufficient assets to draw upon to adequately replace the waived maintenance.
“[E]nforcement of the waiver of maintenance provision would not reduce [the spouse that waived maintenance] to a condition of penury.” In re Marriage of Burgess, 485 NE 2d 504 – Ill: Appellate Court, 3rd Dist. 1985
A waiver of maintenance is likely to be upheld if the spouse who waived maintenance is able to support themselves and the spouse who waived maintenance was awarded any property in the prenuptial agreement. If the maintenance waiving spouse got some kind of benefit out of the prenuptial agreement a court will likely rule that there are worse things in life than having to work for a living.
“[T]he terms of the premarital agreement were not so harsh, oppressive, or inordinately one-sided to be substantively unconscionable where both parties acknowledged they had the ability to be self-supporting and both released any claims to each others’ premarital and after-acquired property and to any maintenance.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018
When drafting a prenuptial agreement, the best practice to show a court that the spouse can support themselves and got the benefit of the bargain in the prenuptial agreement is to agree to pay them some maintenance in the prenuptial agreement. A small maintenance amount indicates that 1) the spouse believes they can live off that amount and 2) that they bargained for that fixed amount in the prenuptial agreement.
Temporary Maintenance And Prenuptial Agreements In An Illinois Divorce
Temporary maintenance is the maintenance a court has the power to award during a divorce.
“Either party may petition or move for:…temporary maintenance” 750 ILCS 5/501(a)(1)
Illinois courts have held that temporary maintenance is different from final maintenance in a prenuptial agreement. Unless temporary maintenance is specifically waived in the prenuptial agreement, a spouse will still be entitled to maintenance during the duration of the divorce before the Judgment of Dissolution of Marriage is entered.
When “the clear and unambiguous language of the agreement did not contain a waiver of temporary maintenance [that does] not bar [a spouse] from receiving an award of temporary maintenance” In re Marriage of Luckett 2026 IL App (3d) 250663
A prenuptial agreement must be as specific as possible in order to be enforced. Writing or challenging a prenuptial agreement requires a keen eye for accuracy. Contact my Chicago, Illinois divorce law firm to speak with an experienced Illinois divorce attorney in order to write or review a prenuptial or postnuptial agreement.
Russell D. Knight has been licensed as an attorney for 20 years in Illinois. Russell D. Knight focuses exclusively on divorce and family law. Russell Knight is scheduled to speak on prenuptial agreements on January 18, 2027 for the Illinois Institute of Continuing Legal Education’s “Business Valuation, Financial & Tax Issues in Divorce 2027: Drafting Smarter Financial Settlements.” Additionally, Russell D. Knight has been selected to Super Lawyers®, 2026 and The Best Lawyers in America®, Family Law, 2026
