Hey, true love can be hard to find! Prenups & Second Marriages Edition

Feb 7, 2021 | Finances, Prenuptial Agreements, Second Marriages

So, you’re getting remarried? First off, congratulations! For some, getting married again comes easily and for others can it take some time. Whatever your journey was, this is an exciting time for you! Undoubtedly, the very (very very) last thing on your mind is the end of your impending marriage. Or, maybe because you’ve already been through it, you know that you can never be too cautious. One thing is true regardless of your perspective. Drawing up a prenup is a wise decision when remarrying, and pretty common. If you’ve been through a divorce before, you just get it.

That’s right, a Prenup. Do you have a prenup from your earlier marriage? Do you plan to have one for your upcoming nuptials? Will they affect one another? Do you really need a prenup for a second marriage? These are smart questions to ask, and this article will help you answer them.

What Happens to Your First Prenup if You Remarry?

If you’ve already been through the process of marriage and divorce, then you probably understand that the issues can get technical very quickly. In most cases, those seeking a divorce will hire their own attorneys to help them navigate the process. If you had a prenup drawn up for your first marriage, then you know that it can be a valuable tool that saves time and money at the end of the day. A prenup is a plan for a worst-case scenario, but having one prevents the end of a marriage from being as unpleasant as it could be.

You might be wondering how the prenup that you and your ex agreed to before your earlier marriage will affect your impending nuptials. In many ways it won’t. At the dissolution of your prior marriage, the divorce agreement/judgment had the final say in confirming which assets belonged to you after your marriage, and which belonged to your ex. There is a caveat worth noting, though.

Alimony arrangements from your prior marriage may stipulate that if you remarry, your spousal support will stop. In certain states, alimony terminates upon co-habitation for a certain period of time. With or without a prenup, this is the law in most states. This makes sense, especially if the individual you plan to remarry is well established and can financially provide for your lives together.  If your earlier prenup was especially generous to you, perhaps the two of you agreed that you would continue to get spousal support even if you remarried. Make sure you know your states laws.

It should be noted that the courts aren’t shy about stepping in when it comes to alimony, even when your prenup contains alimony provisions. If you have any questions about alimony from your prior spouse, or questions about how best to draft the alimony provisions in a new prenup, you should contact an attorney.

Prenups for Later-In-Life Marriages

When preparing for a second, third, or fourth marriage (hey, good love can be hard to find!), you might feel like you don’t need a prenup. After all, you’ve got plenty of experience and you know what to expect during the marriage. You know exactly how to make it work. While no one can fault you for wanting to put your insight to good use, you shouldn’t skip over the prenup.

Often, individuals who remarry later in life have accumulated their own assets over time. Perhaps they’ve forged their own successful businesses and have a slew of employees that rely on them to keep the business operational. Older individuals may find themselves inheriting family heirlooms from their loved ones. They could also have retirement funds, life insurance policies, or even certain assets that they received as a result of the prenups between themselves and an ex-spouse.

Owning any of these assets is great reason to draft a prenup before you sign that marriage certificate. Because those who remarry later in life can come to the marriage with significantly more to their name than those who are just starting out, a prenup is a particularly important tool for keeping individual assets separate.

The good news is, older couples planning to tie the knot can approach the prenup discussions with maturity and wisdom. So even though it’s not advisable to assume you don’t need a prenup because you already know everything there is to know about how a marriage works, you can use all of that valuable knowledge to communicate with your significant other about a prenup.

Prenups are often still associated with bad news, but really, they can be a tool for building a trustworthy foundation for marriage, no matter your age or experience.

Prenups Safeguard Your Child’s Assets

The most popular argument for prenups in subsequent marriages exists for a very good reason. Those who are remarrying often have children from their earlier marriages or relationships. Blending families and co-parenting can be a beautiful thing, just ask almost any Hollywood celebrity. That said, there are circumstances in which you may wish to ensure that your children from those prior relationships retain a right to certain assets in the event you pass away or divorce.

Depending on the laws of the state where you live, the parent who passes away before their child’s stepparent does may inadvertently leave all of their assets to their spouse. That’s not necessarily a bad thing, but it may not be ideal in many circumstances.

A problem that many parents find worrisome occurs when the stepparent has children of their own from an earlier relationship. The more the merrier (obviously!), but you probably would prefer that your biological child inherit your great grandmother’s pearls. Even if you have a separate estate plan, a prenup will further clarify how you intended to leave assets to your children.

If you die without a will, state law dictates how your assets are split up amongst your heirs. In some states, all assets go to your spouse and in others, half of your assets go to your spouse and the rest goes to your children. It should come as no surprise that this can get messy, and there are plenty of caveats to complicate the game plan. A prenup is an excellent way for you to make sure your kids’ inheritance is protected.

How Does Divorce Risk Your Child’s Inheritance?

Planning for an untimely death isn’t the only reason to use a prenup as a tool to protect the wealth you intend for your child to inherit. States treat property owned during marriage differently and in community property states, assets acquired during marriage are split equally in divorce unless your prenup says otherwise.  The following states are community property states:

  • Arizona, California, Idaho, Washington, Texas, Nevada, Wisconsin, and New Mexico

Most states abide by the common law rule, which provides that spouses own assets separately. If you divorce in a common law state also widely known as an equitable division state, the court will base a determination of ownership of on how assets were titled or how accounts were kept during the marriage. Don’t be tempted to think that you don’t need a prenup if you live in one of these states, though. Ultimately, the courts decide matters differently than we want. This is because oftentimes our intent doesn’t reflect our practice.

For example, maybe your new spouse moved into the home you inherited from your family, and you intend for your child from an earlier marriage to inherit the home someday. If you added your new spouse to the title of the home, then courts could order that half of it belongs to that spouse in the event of divorce.

Preparing a prenup is a simple step you can take that will take precedent over state law.

You’ll be able to avoid the headache and heartache that comes with the courts making decisions for you. The moral of the story is: if you want to ensure that your children from earlier relationships wind up with the family jewels, then you should spell it out in a prenup.

A Prenup for Your Golden Years

If you’re on the brink of a later-in-life marriage, then odds are you’ve already spent a considerable amount of time thinking about retirement. Prenups can be especially useful in helping you and your significant other build a road map for your golden years.

If your soon-to-be spouse is able to draw on a significantly larger retirement plan, you should consider not only if they are going to support you financially, but how that will look. Another important issue to note is that those who marry later in life may not accumulate much more wealth through wages during their marriage, thus in the event of death or divorce, a spouse with a smaller retirement plan may feel particularly vulnerable without a prenup in place.

Ultimately, preparing a prenuptial agreement before marriage is a sound idea even if it isn’t your first marriage. In fact, sometimes the stakes are higher for those remarrying at a more mature age. After all, as time goes on, we tend to take on more responsibilities. These responsibilities include having children that we want to take care of no matter what. They also include planning our financial futures well into our retirement age. Preparing a prenup will provide peace of mind in these situations.

This blog is for informational purposes only. HelloPrenup, LLC (“HelloPrenup”) makes no representations as to the accuracy or completeness of any information on this site. HelloPrenup will not be liable for any errors or omissions in this information nor for the availability of this information. These terms and conditions of use are subject to change at any time and without notice. HelloPrenup provides a platform for legal self-help. The information provided by HelloPrenup along with the content on our website related to legal matters (“Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither HelloPrenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.

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