Blog

Second Marriage? Consider a Prenuptial Agreement

on Oct 10, 2017 in Divorce

People entering a second marriage likely have experienced a divorce.  Statistics show that second or third marriages are even more likely to end in divorce than first marriages.  You have already likely experienced the pain, stress and expense of divorce.  Hopefully, by the time you are entering a second marriage, you are wiser than you were at the time of your first marriage.  This wisdom should include consideration of entering a prenuptial agreement with your soon to be new spouse.

A prenuptial agreement details the expectations of the parties for finances during the marriage as well as if the marriage ends in divorce.  Sitting down ahead of time and discussing financial issues as well as negotiating a prenuptial agreement will help avoid stress during the marriage and provide some certainty in the event of divorce.

While always useful, prenuptial agreements are particularly important in certain situations, including those discussed below.

The Parties Plan to Keep Separate Finances

Many couples in second marriages choose to keep separate finances.  In order to preserve this arrangement, a prenuptial agreement can detail the intentions of the parties.  Courts will use the agreement as evidence when dividing assets and liabilities of the parties.  More importantly, it makes it easier for the parties to reach a negotiated settlement without directly involving the court.  Avoiding a court battle saves money, time, stress, and heartache.

One Party Has Support Obligations for an Ex-spouse or Children

Frequently, if one party has obligations to an ex-spouse or children, that money will come from income earned during the marriage.  Income earned during the marriage is marital property.  Perhaps your future spouse is fine with this, but that may change if the marriage ends in divorce.  Drafting a prenuptial agreement addresses how these finances will be handled during the marriage as well as how the use of marital funds for these payments will be considered in the event of divorce.

The Parties Plan to Reside in a House Owned By One Party

Sometimes, parties agree to move into a home owned by one of them before the marriage.  Consider whether there is a mortgage on the house.  The mortgage must be paid and income earned during the marriage is considered marital property, whichever spouse earns it.  Does the non-owner spouse receive a credit for an increase in the value of the home if the marriage ends in divorce?  Must the non-owner spouse vacate the home during a separation?  Include these issues in a prenuptial agreement.

One Spouse is Receiving Alimony or Spousal Maintenance

When a spouse is receiving alimony, those payments will typically end if he or she remarries.  A family law attorney must review the terms of the original divorce decree.  First, it may not make sense financially for the parties to marry or even live together.  Second, if the parties still wish to marry, a prenuptial agreement for the upcoming marriage can establish ways to maintain the lifestyle established following your first divorce.  This can allow you to move on with this new relationship with the same financial status you enjoyed previously.

One Spouse Will Leave Much of Their Estate to Their Children

Sometimes, a spouse intends to leave a majority of his or her estate to children of a prior marriage, not their current (or future) spouse.  Establishing this in a prenuptial agreement makes it more likely to be followed by a court.  If you wish to leave a majority of your estate to children from a prior relationship, state this to help avoid sabotage from your new spouse.  That spouse may not have a relationship with your children.  Do not count on his or her kindness when money is at issue after your death.  A prenuptial agreement will make your wishes clear and leave your children in a much better position.

Financial Assistance to Adult Children From Prior Marriage

A prenuptial agreement can establish how much each party can give to adult children.  The agreement can establish an amount over which the assistance will require consent and discussion.  With the current economy and student loan debt, supporting adult children can potentially be a source of stress and division.  Again, prenuptial agreements are useful not only upon pending divorce, but it can help avoid confrontations during a marriage.

Inheritances

Inheritances are considered non-marital property.  That said, if one of the parties has received an inheritance prior to a subsequent marriage, it is wise to detail this in a prenuptial agreement.  Maintain that inheritance in a separate account.  Consult with a family law attorney before converting an inheritance into a different form of property.  It may be important to maintain the status of your inheritance as nonmarital property, preserving your right to the property.

Changing a Prenuptial Agreement

Remember, a prenuptial agreement is not set in stone.  Circumstances change, and that is fine.  The terms of a prenuptial agreement can be changed.  Perhaps your financial situation changes and so does your estate plan.  Change you agreement accordingly.  Do not avoid a prenuptial agreement out of concern about future changes.

Prenuptial agreements at first sound contentious, but in reality, they can provide an opportunity to have uncomfortable but important conversations.  Experienced, qualified family law attorneys know what issues you need to consider in your situation.   However, they avoid conflict in the future and strengthen a marriage.

Drafting a prenuptial agreement is not a do-it-yourself project nor should you simply fill out a form.  Ideally, both parties hire their own family law attorney.  The parties should start the conversation well before the wedding day.  Doing this right takes professional help and time.  

Marriage and Prenuptial Agreements

Getting married? Consider a prenuptial agreement.  At Fait & DiLima, we focus exclusively on family law issues.  Allow us to work with you, creating a prenuptial agreement that fits your needs.  Contact us today.