2011: San Diego Divorce: Remarriage To Same Party Or Different Party: Some Implications
In San Diego, many residents do divorce. Also, in San Diego, many residents who divorce also remarry. Some San Diego residents who divorce and remarry do so with each other and marry for the second time. Some of these will divorce each other a second time. Most San Diego residents who divorce will remarry a person other than their former spouse. Given the large amounts of spouses who are divorced either in San Diego or elsewhere who live in San Diego who get remarried, it is important to consider implication in the remarriage whether to the same spouse or a different spouse.
Marriages to the same spouse create some unique issues. First, many divorce judgments include spousal support provisions. When a party re marries, this normally terminates spousal support under California law. Two scenarios present: spousal support ongoing when remarriage or spousal support terminated before remarriage. In the first scenario, the on going spousal support terminates. The judgment of divorce is still effective even though the parties remarry. This can affect the division of assets and debts in the event the parties divorce again since the date of marriage restarts as would the date of separation. In the second scenario, spousal support has already terminated before remarriage. Can the supported spouse ask for spousal support, in the event of a second divorce, for both periods of time together? This is possible under a theory of “tacking” but the facts are very specific and limited to where a very short marriage was preceded by a very long marriage. In addition, in many judgments, the right to inherit from the former spouse is waived when the divorce is entered. Remarriage does not void the judgment so an analysis needs to be considered for a new estate plan.
Marriages to other parties can also create issues. A remarriage is void, of course, if the ceremony is performed prior to the entry of the dissolution of marriage terminating status of the prior marriage. Some spouses believe they are divorced but they are not. If you are considering remarrying, make sure to obtain a certified copy of the judgment of your divorce decree first. Marrying while you are still married can lead to severe consequences including criminal such as bigamy. In addition, the second marriage would be void and could have estate consequences as well as others. In addition, of course, community property assets and income from a remarriage are discoverable by the former spouses ex. For example, in a child support modification motion, the first spouse can send discovery asking for the community property assets and income which may include the second spouse and their new mate. Survivor benefit plans can also be an issue for a remarriage and some judgments have provisions for survivor benefits for the first spouse and cannot be transferred to the second spouse. In addition, if you are paying child support for a child of a previous relationship by court order, this can be included in the dissomaster printout. If you are paying spousal support for a previous relationship [you are remarried and the payor and the other spouse is not remarried and is the payee] and then divorce there may be multiple alimony payments. If you have children from a previous relationship and then divorce with children from your second marriage, then there could be issues regarding the parenting plan.
If you have questions regarding family law in San Diego County, including any remarriage issues, please feel free to contact us for a confidential consultation.