This reading of the agreement gave Christine a continuing right to the IRA, even though she waived her status as a beneficiary. Jozef cites In re Marriage of Burgess, 123 Ill. App.3d 487 (1984), for the proposition that property may be excluded by valid agreement of the parties. Although a correct statement of the law, Burgess has little relevance to the case at bar.
We find this argument unpersuasive, particularly because it was Diane who testified that she might have actually destroyed the document herself. ¶ 71 We do recognize, however, that as with any contract, a party may rescind an antenuptial agreement by engaging in a course of conduct which clearly evidences an intent to abandon its terms. In re Marriage of Burgess, 123 Ill. App. 3d 487, 489-90 (1984). This might occur by a commingling of marital or nonmarital property or by conduct which shows an intent to ignore the agreement and treat nonmarital property as marital property.
"[A] party may rescind a pre-nuptial agreement by engaging in a course of conduct which clearly evidences an intent to abandon its terms." In re Marriage of Burgess, 462 N.E.2d 203, 204 (Ill.App.Ct. 1984). "This might occur by a commingling of marital or non-marital property or by conduct which shows an intent to ignore the agreement and treat non-marital property as marital property." Id.
In addition to property owned prior to the marriage, the parties may also define their rights to property acquired by a spouse later in the marriage." In re Marriage of Burgess, 123 Ill.App.3d 487, 78 Ill.Dec. 345, 462 N.E.2d 203 (1984). By virtue of KRS 403.190 (2)(d), a husband and wife in Kentucky may define by agreement their rights in each other's property, regardless of any rights which would otherwise have been excluded or conferred by KRS 403.190.
¶ 25 However, a husband and wife may, “by agreement, exclude the operation of law and determine for themselves what rights they will have in each other's property.” In re Marriage of Burgess, 123 Ill.App.3d 487, 489, 78 Ill.Dec. 345, 462 N.E.2d 203 (1984). In fact, the Marriage Act expressly recognizes that the parties may, by agreement, exclude the operation of marital property laws.
( Seuss v. Schukat (1934), 358 Ill. 27, 192 N.E. 668.) Although the law prescribes the rights of a husband and wife in the property of each other, persons may, by agreement, exclude the operation of the law and determine for themselves what rights they will have in each other's property during the marriage. ( In re Marriage of Burgess (1984), 123 Ill. App.3d 487, 462 N.E.2d 203.) The rules governing the construction and interpretation of contracts are generally applicable in the construction and interpretation of antenuptial agreements.
Under the Dissolution Act, an antenuptial agreement, entered into by persons competent to contract, may exclude the operation of the law, including the marital property provisions of section 503, and determine the rights each will have in the other's property during the marriage. ( In re Marriage of Burgess (1984), 123 Ill. App.3d 487, 462 N.E.2d 203. See also Ill. Ann. Stat., ch. 40, par. 503, Historical Practice Notes, at 61-62 (Smith-Hurd Supp. 1991).
When the divorce proceedings are abated, the parties may choose to ignore the agreement and thereby rescind it as they would any other contract. See In re Marriage of Burgess (1984), 123 Ill. App.3d 487 (which applies this reasoning in the context of a prenuptial agreement). Here, however, where two parties enter into a marital settlement agreement, and where performance of the agreement is carried out, notwithstanding the dismissal of the divorce proceedings, we view the agreement as a valid allocation of marital and nonmarital property rights pursuant to section 503(a)(4) of the Act.
As with any contract, a party to an antenuptial agreement may abandon such an agreement. See id. at 456, 26 N.W.2d at 412; see also In re Marriage of Zimmerman, 714 P.2d 927, 929 (Colo.App. 1986); In re Marriage of Burgess, 123 Ill. App.3d 487, 78 Ill.Dec. 345, 462 N.E.2d 203, 204 (1984). As the Iowa Supreme Court has noted:
(Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(4).) One such agreement is an antenuptial, which is valid if entered into with full knowledge and without fraud, duress, or coercion. ( See In re Marriage of Burgess (1984), 123 Ill. App.3d 487, 462 N.E.2d 203; Volid v. Volid (1972), 6 Ill. App.3d 386, 286 N.E.2d 42.) The trial court heard evidence not, as Nancy argues, to determine the intent of the parties, but to determine the validity of the agreement. • 2 The evidence established that Nancy was well-educated and operated her own business.