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Remarrying a Former Spouse After Divorce - Starting From Scratch

I recently came across an article about an older couple that remarried nearly fifty years after getting a divorce. While heartwarming to the point of nearly being maudlin, the story brought to mind the occasions that I've had to work with couples who were breaking up after a second attempt with each other (some having experienced intervening marriages to a third party). Having worked in this area of the law for a number of years, I've noticed a definite pattern to these relationships; this pattern is marked by some legal realities that some parties find difficult to accept at first glance, and which serioulsy impact the eventual resolution of the case.

The biggest reality is that the new marriage doesn't date back to the old one - what happened during that marriage no longer impacts property rights or maintenance rights in the subsequent attempt (unless the decree was annulled, something which can only happen in limited circumstances). Whatever each party started the new marriage with is theirs, even though it may have originally been marital property in the first marriage that was divided in the first divorce. From a practical standpoint, that means that even if you are living in the house acquired in the first marriage, the marital interest doesn't begin to accrue until the date of the subsequent marriage. This principle applies to the other assets and debts as well, and significantly diminishes or eliminates claims for spousal maintenance as the two marital periods are not "stackable" (although a pre-existing maintenance award can sometimes be reinstated under certain circumstances).

Parties who have remarried have difficulty in grasping this, as they tend to operate emotionally as is the two marriages encompass a single timespan.

I would urge people who desire to remarry after a divorce to consider drafting a prenuptial agreement in order to create an atmosphere of predictability in the event that the subsequent attempt does not succeed. A simple request should not put the other potential spouse in an unacceptable state of apprehension; by that point, the previous stress points from the prior marriage are known and each spouse should be willing to enter into an arrangement that makes everyone comfortable.