Second Marriage Prenup: Protecting Your Assets and Loved Ones

While second marriages represent a fresh start and an exciting journey, consider the potential financial and legal outcomes before you re-tie the knot. A prenuptial agreement (prenup), a contract that outlines both spouses’ property rights before and during marriage, can help you determine these outcomes while limiting the emotional and financial stress of a second divorce.

Prenups are especially valuable when considering how California’s community property laws affect the division of assets. Without a prenup, family law courts view property and debt acquired during marriage as community property and divides them 50/50 upon divorce.

Why Should You Get a Prenup for a Second Marriage?

• Protect Pre-Marriage Assets: A second marriage usually occurs later in life when both spouses have acquired significant assets, such as a high income, real estate, or retirement savings. A prenup ensures these assets remain separate property and do not fall under community property laws if divorce occurs.
• Guard Your Child’s Future: A prenup protects the children of previous marriages – their inheritances could be separated from community property in subsequent marriages.
• Prevent Additional Debt: Like assets, individuals entering a second marriage can acquire increased financial liabilities. A prenup outlines each partner’s financial responsibilities and protects one spouse from the other’s pre-existing debts.
• Understand Spousal Support: Either spouse may have to make spousal support payments from their first marriage. A prenup sets expectations and can help determine whether either spouse must make spousal support payments for a second divorce.
• Secure Estate Plans: A prenup works with wills and trusts to ensure that assets are distributed according to both spouses’ wishes, reducing the chances of disputes between the new spouse and children from a previous marriage.

Drafting a Second Marriage Prenup

When drafting a prenup, each spouse should have independent counsel. Both parties must be transparent about all their financial assets and liabilities. The agreement must be in writing, signed by both individuals, entered voluntarily, and deemed enforceable.

Additionally, Family Code §1615(c)(2) requires seven days between presenting a final draft and executing the prenuptial agreement.

Final Thoughts

Prenuptial agreements are not the most romantic aspect of marriage, but they provide essential transparency, financial security, and peace of mind.

Every couple’s situation is unique, and conversations around prenups can be difficult. It is best to approach them honestly and consult with experienced family law counsel to ensure a strong foundation to hopefully build a successful second marriage.

Vanessa Soto Nellis and Nancy Martinez are Family Law attorneys at Lewitt Hackman. Vanessa is a California Family Law Specialist