A prenuptial agreement does not have to remain unchanged after the wedding. Under 750 ILCS 10/6, spouses may amend or revoke a premarital agreement after marriage, but the change must be in writing and signed by both parties. No new consideration is required, and an oral agreement to abandon or rewrite the prenup does not satisfy the statute.
Chicago prenuptial agreement lawyers Michael Ian Bender and Molly E. Caesar help spouses review, amend, and revoke premarital agreements when their circumstances or financial priorities change. They help clients identify which provisions should be revised and whether a targeted amendment or full revocation is appropriate. Our team also addresses potential enforceability concerns and prepares written agreements that reflect the spouses’ intentions.
This guide covers Section 6 requirements, amendments versus revocations, enforceability concerns, oral modifications, and the steps for changing a prenup after marriage.
If you are considering changing or revoking a prenuptial agreement, Caesar & Bender, LLP can review your existing terms and discuss your options under Illinois law. Call (312) 236-1500 to schedule a consultation with a Chicago prenuptial agreement attorney.
Can Spouses Amend or Revoke a Prenup After Marriage in Illinois?
Yes. Under the Illinois Uniform Premarital Agreement Act, a premarital agreement takes effect upon marriage, and after that point, 750 ILCS 10/6 requires a written agreement signed by both spouses to amend or revoke it.
Both spouses must agree to the change, so one spouse cannot unilaterally revise a term, cancel the prenup, or treat it as abandoned based on the couple’s conduct after the wedding. If a spouse instead contends that the agreement should not be enforced, that issue is separate from revocation and can involve an applicable challenge under 750 ILCS 10/7.
The main difference from creating the original prenup is timing. A prenup is signed before marriage and becomes effective upon marriage, while a post-marriage amendment changes an agreement that is already in effect, such as by revising provisions concerning property or other financial rights.
What Does 750 ILCS 10/6 Require in Illinois?
Under 750 ILCS 10/6, an amendment or revocation must be in writing and signed by both spouses. The statute also states that the change is enforceable without consideration, meaning neither spouse has to provide something new of value in exchange for the amendment or revocation.
This differs from the consideration requirement that applies to many ordinary contracts. For example, one spouse can agree to give up a right provided by the original prenup without receiving a new benefit in return, as long as the requirements for the amendment are satisfied.
Section 6 does not require notarization, witnesses, a statement explaining the reason for the change, or a specific document format. Notarization can still provide additional evidence concerning the signatures, but it is not required under the statute. Compliance with Section 6 also does not resolve every potential enforceability issue, as Section 7 addresses challenges involving involuntary execution and unconscionability under the conditions stated in the statute.
| Requirement | Applies to Amendment | Applies to Revocation |
|---|---|---|
| Written document | Yes | Yes |
| Signed by both spouses | Yes | Yes |
| New consideration | No | No |
| Mutual agreement of both spouses | Yes | Yes |
| Notarization | Not required by statute | Not required by statute |
| Updated financial disclosure | Not required by statute | Not required by statute |
| Independent legal counsel | Not required by statute | Not required by statute |
Key Takeaway: Section 6 sets the formal requirements for changing or revoking a prenup after marriage, while other enforceability issues can require a separate analysis under Illinois law.
Does Each Spouse Need Independent Legal Counsel in Illinois?
No. Section 6 does not require each spouse to have separate legal counsel when amending or revoking a prenup. An amendment can satisfy the statute’s formal requirements even if one spouse’s attorney prepares the document and the other spouse is unrepresented, or if neither spouse uses an attorney.
Legal representation can still become important if the amendment is later challenged. Section 7 addresses issues such as voluntary execution and, under specified conditions, financial disclosure and unconscionability. Having independent counsel also gives each spouse an opportunity to review the proposed changes, understand the rights affected, and raise concerns before signing.
For amendments that substantially change property rights, maintenance terms, or other financial provisions, working with separate attorneys can reduce uncertainty about what each spouse intended to accept. A Chicago prenuptial agreement lawyer can also help identify provisions that need to be revised and prepare an amendment that clearly states which terms are changing and which remain in effect.
What Is the Difference Between Amending and Revoking a Prenup?
The difference comes down to how much of the existing agreement the spouses want to change. An amendment revises specific terms while keeping the rest of the prenup in effect, while a revocation cancels the agreement in full.
Amending a Prenuptial Agreement
An amendment allows spouses to revise selected provisions without replacing the entire agreement. For example, they can address an asset acquired after the original prenup was signed, change how a residence is treated, or revise a maintenance provision following a substantial change in income.
The amendment should identify the original agreement, specify which provisions are being replaced or added, and state which terms remain in effect. Clear drafting is important because uncertainty about the scope of an amendment can lead to disputes over which provisions still control.
Revoking a Prenuptial Agreement
A revocation ends the premarital agreement rather than changing selected provisions. Once the spouses revoke the prenup in accordance with Section 6, its terms no longer govern their rights under that agreement.
If no other valid agreement controls those issues, Illinois law governs matters such as property classification, division, and maintenance. In a later divorce, property is classified as marital or non-marital under 750 ILCS 5/503, with marital property divided in just proportions under the statute. Before revoking a prenup, spouses should consider whether a targeted amendment would address the provisions they want to change without giving up other protections in the agreement.
Key Takeaway: An amendment is appropriate when spouses want to change selected provisions, while revocation ends the entire prenup. The right approach depends on which terms the spouses want to change and which protections they want to keep.
Prenuptial Agreement Attorneys in Chicago – Caesar & Bender, LLP
Michael Ian Bender, Esq.
As a former Domestic Relations Judge for the Circuit Court of Cook County, Michael Ian Bender brings experience from the bench to his work as a co-founding partner of Caesar & Bender, LLP. He advises clients on prenuptial agreements and other complex family law matters, drawing on his experience presiding over thousands of cases involving Illinois families.
Michael earned his J.D. cum laude and an LL.M. with honors in Information Technology and Privacy Law from the University of Illinois Chicago School of Law. He has also served as an Illinois Appellate Court judicial law clerk and Public Administrator of Cook County and has earned distinctions from Best Lawyers in America, Leading Lawyers, and Lawyers of Distinction.
Molly E. Caesar, Esq.
For more than 15 years, Molly E. Caesar has represented Illinois clients in family law matters, including the preparation and review of prenuptial agreements. As a co-founding partner of Caesar & Bender, LLP, she brings trial and appellate experience to matters involving financial agreements and other family law issues.
Molly graduated summa cum laude from DePaul University College of Law, was elected to the Order of the Coif, and now serves as an Adjunct Professor at DePaul. She has been selected to Super Lawyers and Rising Stars and has received Emerging Lawyer and Litigator of the Year honors.
Can an Amended Prenup Still Be Challenged as Unconscionable?
Yes. A signed amendment can still face an enforceability challenge. Under Section 7, a premarital agreement can be challenged based on involuntary execution or, when the statutory requirements are met, unconscionability at the time of execution.
When a later amendment is challenged, the circumstances surrounding its execution can become important, especially if the amendment substantially changes the spouses’ financial rights. Financial disclosure, the opportunity to seek independent legal advice, and the circumstances under which the amendment was signed can all be relevant to an enforceability dispute.
Section 7 also addresses agreements that modify or eliminate spousal maintenance. If enforcing a maintenance provision would cause undue hardship because of circumstances that were not reasonably foreseeable when the agreement was executed, the court can require support to the extent necessary to avoid that hardship.
Careful preparation can reduce disputes over how an amendment was reached. Exchanging current financial information, allowing sufficient time for review, and clearly documenting the terms of the amendment can provide a stronger record if its enforceability is later questioned.
Key Takeaway: Signing an amendment in accordance with Section 6 does not resolve every potential enforceability issue. The circumstances surrounding the agreement and the requirements of Section 7 can also affect whether the amended terms are enforced.
Does an Oral Agreement to Change a Prenup Count in Illinois?
No. Section 6 states that a premarital agreement can be amended or revoked after marriage only through a written agreement signed by both spouses. A verbal understanding to change a waiver, share an account, or set aside the prenup does not satisfy this requirement.
The spouses’ conduct after marriage does not by itself amend the agreement. Commingling funds, jointly titling property, or sharing management of a business can affect questions about particular assets, but those actions do not replace the signed writing required to change the prenup.
Relying on an oral promise can therefore create problems if the written agreement still contains terms that conflict with what the spouses discussed. Putting any agreed changes in writing provides a clear record of the new terms and whether specific provisions or the entire prenup are being changed.
What Steps Should You Follow to Amend or Revoke a Prenup?
Amending or revoking a prenup starts with reviewing the existing agreement and deciding what needs to change. Even when both spouses agree, careful drafting and documentation can help prevent uncertainty about the new terms.
- Review the existing agreement: Read the original prenup and any prior amendments to identify the provisions that need to change. The agreement should also be checked for its own modification requirements beyond those imposed by statute.
- Choose between amendment and revocation: Decide whether to change specific provisions or end the agreement entirely. Revocation can affect rights and protections that the spouses intended to keep, so the scope of the change should be considered carefully.
- Exchange updated financial information: Section 6 does not require updated financial disclosure, but information about each spouse’s property and financial obligations can become relevant if enforceability is later disputed under Section 7.
- Draft the amendment or revocation: Identify the original agreement, specify the provisions being added, replaced, or removed, and state which existing terms remain in effect.
- Allow time for independent review: Each spouse should have sufficient time to review the proposed changes and consult separate legal counsel before signing.
- Sign and retain copies: Both spouses must sign the agreement, and each should keep a complete executed copy. Notarization is not required by Section 6 but can provide additional evidence concerning the signatures.
If the spouses disagree over the proposed terms, negotiation or mediation can help them work toward an agreement. Once terms are settled, an attorney can prepare the written amendment or revocation required by Section 6 and clearly document the agreed changes.
Speak With a Chicago Prenuptial Agreement Attorney
Amending or revoking a premarital agreement involves different considerations from creating the original prenup. The agreement is already in effect, and failing to follow the requirements of 750 ILCS 10/6 can leave the original terms unchanged despite the spouses’ intention to modify or end them.
Chicago prenuptial agreement attorneys Michael Ian Bender and Molly E. Caesar help clients throughout Chicago and Cook County review existing agreements, prepare amendments and revocations, and address disputes over enforceability. We assist clients with agreements involving business interests, investment real estate, closely held entities, and other significant financial matters. Our team also handles enforceability disputes that require litigation in the Domestic Relations Division of the Circuit Court of Cook County.
Call Caesar & Bender, LLP at (312) 236-1500 to schedule a consultation about amending or revoking your prenuptial agreement. Our office at 150 N Michigan Ave #2130, Chicago, IL 60601 serves clients throughout Chicago and Cook County.
Frequently Asked Questions About Amending an Illinois Prenup
Does an amendment need to be notarized under 750 ILCS 10/6?
No. Section 6 requires a written agreement signed by both spouses but does not require notarization. Notarization can still provide additional evidence concerning the signatures and circumstances of execution.
Can one spouse revoke a prenup without the other’s agreement?
No. Section 6 requires both spouses to sign a written agreement to revoke a prenup, so one spouse cannot revoke it alone. A spouse who instead contends that the agreement should not be enforced can raise an applicable challenge under Section 7.
Does a prenup amendment require updated financial disclosure?
Section 6 does not expressly require updated financial disclosure. However, disclosure can become important in an enforceability dispute because Section 7(a)(2) addresses unconscionability together with requirements concerning disclosure, written waiver, and adequate knowledge of the other spouse’s property and financial obligations.
Is mediation available for disputes over an amendment’s terms?
Yes. Spouses who disagree about proposed changes can use mediation to work toward mutually acceptable terms. Any resulting amendment or revocation still must satisfy Section 6’s requirements for a written agreement and signatures.
What happens to the original prenup if an amendment is found invalid?
The result depends on why the amendment is invalid and how the documents are written. If the problem affects only the amendment, the original prenup can remain in effect, while a defect involving the underlying agreement or an amendment intended to replace it entirely can lead to a different result.
Can spouses amend a prenup more than once during the marriage?
Yes. Section 6 does not state a numerical limit on amendments. Each amendment must satisfy the applicable writing and signature requirements and should identify the original prenup and prior amendments so the current terms are clear.
