Would you pay twice for the same thing? How about paying twice for your house? Unfortunately, that is exactly what some divorced spouses end up doing when they get married for a second time without a prenuptial agreement. Why? Because from the moment you get married, your new spouse begins to acquire a community property interest in the house you obtained in your divorce settlement – even if both the deed and the mortgage are in your name alone and you never put your new spouse on the deed. This can begin to add up over time, especially if home prices keep rising. And if you refinance your house and put your new spouse on the deed things get even more complicated. So, if your second marriage doesn’t work out, you could end up paying twice for your house.
If properly drafted and executed, a prenuptial agreement is an effective, legal way to avoid the scenario I just described. You can protect your house, pension, 401(k) plan, and so on. Prenuptial agreements are powerful legal tools and the California courts enforce them. A good prenuptial agreement is worth much more than the paper it is written on. In fact, the burden of proving a prenuptial agreement is not valid is on the party alleging its invalidity. A valid prenuptial agreement in California requires a number of legal steps, but one of the most important is that neither party is under duress nor undue influence when the agreement is signed. Part of that means that the prenuptial agreement is presented in a reasonable amount of time prior to the marriage ceremony. A prenuptial agreement signed only a few days before the wedding ceremony won’t be enforced.
Granted, the idea of a prenuptial agreement is not very romantic, and I tell young couples starting out in marriage not to go there, but when it comes to a second marriage, do you really want to risk paying for your house twice?