“My ex-husband and I divorced five years ago, but we’ve recently started seeing each other again, and he wants us to remarry. Is this a good idea?”
No attorney can give advice as to whether it is a good idea for you to remarry or not. Attorneys use their education, training, and experience to suggest legal strategies and techniques to protect client’s rights and try to obtain their legal goals. Legally, many clients want to know if remarriage invalidates their marital settlement of either divorce or legal separation, and the answer to this is in the marriage or legal settlement agreement. In most cases, remarriage to the same person will not invalidate the judgment. However, this does not mean that you should not implement legal strategies, and the two that are normally recommended (prior to the remarriage) are a revocable living trust as a single person and a prenuptial agreement.
In many cases, when a remarriage takes place, there may be a marriage in between or there may be children born either from the two parties or from another. As such, the first strategy is essential — that a revocable living trust be executed prior to remarriage. There are also issues of transmutation and commingling which need to be addressed with clients prior to their marriage, so that they can avoid changing character from separate to community. This can be done unilaterally prior to marriage, and no consent of the other spouse is required.
The second strategy is a prenuptial agreement, and this “wraps” around the revocable living trust. This does require signatures of both spouses, and there are many technical requirements to increase the chances of enforcement in the event there is a second divorce after the second marriage. Since California is a community-property state, any assets or debts acquired during the marriage or remarriage are community property; however, there are some exceptions of which the two most common are gifts and inheritances and these, while presumptively community property since acquired during marriage, are considered separate property under the law.
Roy Doppelt practices family law in San Diego with Pinkerton, Doppelt & Associates.