Legal Rights for Second Marriages

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 Legal Rights for Second Marriages

Second marriages may have a profound effect on the estate of the spouses who are married. Each of the spouses should consider how their second marriage would affect their assets and how those assets will be distributed when they pass away.

In many cases, individuals enter into a second marriage following a divorce. Complicated situations can arise, especially if there are children involved.

Because of this, it is important to consult a lawyer regarding legal planning for second marriages.

How Do I Legally Recognize My Second Marriage?

Individuals who are getting married for a second time should ensure that their first marriage is legally terminated, usually by a divorce. An individual may only be married to one other individual at a time, aside from religious exemptions.

If an individual’s first marriage was not properly dissolved, a court would declare their second marriage null and void. If an individual is getting married for a second time, it may be helpful to examine their prior marriage divorce decree in the court records.

The individual’s future spouse should also make a similar check to ensure that bigamy will not be an issue and the individual will not be prevented from marrying again.

What Rights Do I Have?

A spouse who is in a marriage is granted certain legal rights over their spouse’s assets during the time of the marriage and at the time of their death. The rights that are granted to spouses include the right to:

  • Financial support during the asset administration period;
  • Inherit a portion of the deceased spouse’s assets if they did not have a will; and
  • Administer their deceased spouse’s estate if there was no will.

What Tools Do I Have to Distribute My Assets?

There are different ways in which spouses may ensure that their assets are distributed in the manner that they wish, including:

  • Premarital or prenuptial agreements;
  • Joint ownership;
  • Wills and trusts.

Prenuptial Agreements

A spouse can use a prenuptial agreement to protect any funds that were originally allotted for their children’s education or for retirement before the marriage occurs. These agreements typically state that, upon the other spouse’s death or upon the spouse’s divorce, neither of the spouses will have a claim against the assets of the other spouse.

Joint Ownership

With the joint ownership of property, spouses can jointly own assets and name each other as their benefactors. Survivorship rights allow parties who share joint ownership to have the property automatically pass to the surviving owner without being required to go through the probate process.

When the first spouse passes away, all of their assets may pass to their surviving spouse by survivorship rights. At the time of the death of the surviving spouse, these assets will then be passed according to the will or living trust of the surviving spouse.

Wills and Trusts

Drafting wills and trusts is an important way for spouses entering into second marriages to ensure their assets are distributed as they desire. If the spouses already have a will, reviewing it to include any necessary changes is important.

An individual entering into a second marriage should ensure that their former spouse is not named as a beneficiary in their will or trust. The individual should also add any beneficiaries from their second marriage, including their spouse and any new children as a result of that union.

What Takes Place With Alimony Following Remarriage?

Following a divorce, an individual may be required by the court to make alimony payments to their ex-spouse. The majority of alimony orders provide that the payments will stop upon remarriage.

Remarriage is a situation in which an individual’s ex-spouse may request the court terminate the alimony award if the order does not contain such a clause. Unless it is otherwise specified in the individual’s divorce decree, alimony will end upon the recipient’s remarriage or death.

Alimony will also be terminated if the receiving ex-spouse cohabitates with another individual after the alimony is ordered. It is important to note, however, that cohabitation must be established in court before the paying spouse will be permitted to stop making payments.

After Remarriage, What Happens to Child Support?

The second marriage of a parent often has financial repercussions. For example, a child support order for a child from a prior marriage may be changed if the single, noncustodial father remarries and has another child.

Child support payments are often determined using a formula that includes the income of the parent, which may include:

  • Wages;
  • Tips;
  • Commissions;
  • Pension income;
  • Trust income;
  • Social security benefits.

Although the parent’s responsibility to pay child support does not automatically change when their income or lifestyle changes, the parent may request that the court change their child support order if there is a significant change in circumstances, such as remarriage.

When an individual makes a request to amend their child support order, the court will consider if the new spouse is covering all of the parent’s expenses. If the disposable income of the parent increases, their child support payments may also increase.

When there is a petition for modification of a child support order filed in court, an expert child support attorney may subpoena financial documents to ascertain who is covering a spouse’s expenses.

Courts are typically reluctant to lower child support obligations. However, the paying parent may be able to avoid an increase in their payments if they can show their overall household expenses have increased.

It is important for the recipient of child support payments to make a modification request as soon as the circumstances of the paying spouse change. If an individual is paying child support and the recipient remarries to an individual who earns a good living, they should keep making their payments as ordered and consult with a child support attorney.

It is important to keep making the required payments even if a modification has been requested because failure to do so may result in the following:

  • Wage garnishment;
  • Passport revocation;
  • Withholding of tax refunds or employment benefits;
  • Jail time for serious offenses.

Remarriage may cause a paying parent’s obligation to increase if they remarry a wealthy spouse because they will have the ability to provide more support.

Do I Need to Consult an Attorney Regarding These Premarital Issues?

If you are entering into a second marriage, it is important to consult with a prenup lawyer to ensure the process goes as smoothly as possible and there are no issues that may prevent the second marriage from being legal. Your attorney can help you understand your rights as well as protect your interests in any family-related legal issues.

Revising your will and any trusts you may have is best completed by an attorney who can ensure the will is valid in your state. If you are considering a prenuptial agreement, they typically require that each spouse is represented by their own attorney.

Child support is another complex issue that may arise because of your second marriage. If you have any questions about the effect your marriage will have on child support obligations or if you need to request a modification with the court, your attorney can assist you throughout the process.

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