In re Marriage of Nitsche

Overview

In In re Marriage of Nitsche , the Second District held that section 3 of the Illinois Uniform Premarital Agreement Act does not require a party to produce a fully executed original or copy bearing both signatures to prove that a premarital agreement was "signed by both parties." The trial court's factual finding that both parties signed the agreement—based on secondary evidence and credited testimony—was not against the manifest weight of the evidence, and the judgment was affirmed.

Key Facts

Parties married in California in November 2015; both retained independent counsel before the wedding, and petitioner's attorney drafted the first version of a premarital agreement, followed by five or six exchanges between counsel.

Respondent admitted he signed the agreement on the last exchange; the only surviving document was a copy bearing respondent's signature and a notary acknowledgment (Petitioner's Exhibit #1).

Petitioner testified she signed that same document after respondent retrieved it from the attorney, scanned it at her office, stored the original in a marked "Prenup" folder and later in a gun safe.

The safe was found unlocked and the agreement missing after respondent vacated the marital residence in 2023; an external hard drive containing a scanned copy was accidentally discarded during a remodel (both parties so testified).

Petitioner's former attorney could not be located (no longer practicing; unknown whether deceased or retired).

Respondent's original response admitted the parties "entered into" a prenuptial agreement; he was later granted leave to amend to deny execution.

Petitioner testified she would not have married respondent absent a signed agreement.

Procedural History

Circuit Court of Kane County (No. 23-DN-542, Judge Alice C. Tracy). Petitioner's dissolution petition included Count II seeking declaratory judgment that the premarital agreement was valid and enforceable. After an evidentiary hearing, the court admitted the agreement under Illinois Rule of Evidence 1004, found both parties signed it, and granted declaratory relief—without prejudice to respondent's right to contest enforceability on grounds other than execution. The October 30, 2024, order lacked Rule 304(a) language; a October 14, 2025, order restated the findings, added that the agreement was "valid and enforceable," and included Rule 304(a) language. Respondent appealed to the Second District.

Holdings

Statutory construction (de novo): Section 3 of the Act (750 ILCS 10/3) requires only that a premarital agreement be in writing and signed by both parties; it is silent as to how signing is proved and does not require production of a fully executed original or copy. Courts may not read such a condition into the statute. General Illinois evidentiary rules—including secondary evidence—govern proof of execution.

Factual finding (manifest weight): The finding that both parties signed the agreement was not against the manifest weight of the evidence, given petitioner's detailed, credited testimony and corroborating circumstances.

Standard of proof: Preponderance of the evidence applies in declaratory judgment actions; the Act imposes no heightened standard for proving execution.

Legal Principles

750 ILCS 10/2(1), 10/3 (West 2022); 735 ILCS 5/2-701(d); Ill. R. Evid. 1004(1), (2); Ill. S. Ct. R. 304(a).

Jurisdiction: In re Marriage of Best , 228 Ill. 2d 107; In re Marriage of Heinrich , 2014 IL App (2d) 121333.

Standard of review: Turano Solano , 2019 IL App (2d) 180011, ¶ 73; In re Estate of McDonald , 2024 IL App (2d) 230195, ¶ 45.

Premarital agreements are contracts ( Best , 387 Ill. App. 3d 948); execution/terms of lost writings may be proved by secondary evidence, including oral testimony ( Perry v. Burton ; Travelers Indemnity , 2017 IL App (1st) 160780; Sears, Roebuck , 254 Ill. App. 3d 686; Buckingham Corp. , 15 Ill. App. 3d 839).

No categorical rule barring "self-serving" testimony; it affects weight only ( Village of Oak Park , 362 Ill. App. 3d 357).

Clarification: Johnson v. Elgin 's clear-and-convincing standard applies only to challenges to municipal legislative decisions, not to prenup execution disputes.

Practical Implications

A lost prenup is not a dead prenup: build the record with client testimony on negotiation history, execution circumstances, storage, and diligent search efforts, plus Rule 1004 foundation (no bad faith loss; original unobtainable by judicial process).

Preserve independent corroboration—drafting counsel, notaries, scans, emails—early; here the missing attorney and discarded hard drive nearly proved fatal.

Answer pleadings carefully: an admission that parties "entered into" an agreement is difficult to walk back, though the court decided the case on the evidence rather than judicial admission.

Opposing counsel should attack which draft was signed, absence of the movant's signature, and credibility—but recognize these go to weight, not admissibility, and manifest-weight review is highly deferential.

Do not overstate the burden: expect preponderance, not clear and convincing.

Note the trial court preserved other enforceability defenses (e.g., unconscionability, disclosure under section 7)—execution rulings do not foreclose those challenges.

Limitations/Caveats

This is a Rule 23(b) order and is not precedential except as allowed by Rule 23(e)(1); it may be cited only for limited purposes such as res judicata, collateral estoppel, or law of the case. The binding disposition rests on the statutory construction of section 3 and the manifest-weight affirmance. Discussion of the standard of proof (footnote 1) and the out-of-state authority ( In re Marriage of Gochanour (Mont.)) is persuasive/explanatory only. The court did not resolve petitioner's judicial-admission argument.