Subsequent marriages and blended families usually don’t turn out like the Brady Bunch. In fact, two-thirds of second marriages end in divorce. The divorce rate for third and subsequent marriages is even higher. Divorce always involves complex emotional and financial issues. Second marriages magnify these issues.
Procedurally, second divorces are exactly like first divorces. But the second time around, people normally have more debt and/or more assets. They usually also have more children, both from the first and second marriage. They also have experience with a prior divorce, and in many cases, it wasn’t a good experience.
Almost any lawyer can handle a first-time uncontested divorce. But, because of the aforementioned issues, only the best Marietta family law attorney should handle a subsequent divorce, even if it’s mostly uncontested. Chances are, the current spouses are already in and out of court with their former spouses. The last thing they need is more emotional and financial drama.
Premarital Agreements
Successfully handling a subsequent divorce is a process that begins before the current spouses walk down the aisle.
Any people hear “prenup” and either run away or go into defensive mode. But a prenuptial agreement is like a fire insurance policy. Although they don’t want or expect the house to burn down, responsible owners buy fire insurance. Likewise, although they don’t want or expect a divorce, responsible people at least consider prenuptial agreements.
Under Georgia law, these pacts could address many emotional and financial issues. We mentioned stepchildren above. If Lisa is a Marietta family law attorney and she wants one of her children to take over the family business, a prenup can include such a provision. Prenups also clear up yours, mine, and ours property division issues and set limits on spousal support payments.
Also under Georgia law, prenuptial agreements are usually enforceable. Judges might invalidate certain provisions, like property division provisions, if these provisions are unconscionable. A 70-30 division is uneven. “You get all the debts and I get all the assets” is unconscionable.
Property Division
If the spouses don’t have a premarital agreement that addresses property division, Georgia’s equitable division law applies. In this context, equitable is usually, but certainly not always, the same thing as equal. The judge could order a disproportionate division based on several factors, such as:
- Nonmarital Property: Many people received financial settlements or spousal support payments in their previous divorces. Many other people gave up property or are paying alimony. These considerations are relevant to the current property division.
- Child Custody: If Mike and Carol Brady went their separate ways, and all six children wanted to stay with Carol, the judge would probably allow her to stay in the family home with the kids. Carol was a part-time stay-at-home mom and part-time real estate agent. Their big house probably had a big mortgage. If she needed help making the payments, the judge would probably order Mike to pitch in.
- Future Earning Capacity: Mike was a successful architect. He made partner in the sequels. Carol’s income was, as mentioned, limited. To help her get on her feet and support the children, the judge might order a disproportionate division of property, especially revenue producing property, like a rent house.
If Carol does keep the house, Mike isn’t financially left in the lurch. Usually, a Marietta family law attorney files an owelty lien in these situations. When Carol sells the house later, Mike gets his share of the equity as of the date of divorce.
Incidentally, a divorce court changes legal property ownership. But a court cannot change a financial obligation. So, a court could take Mike’s name off the deed, but not the note. Carol must refinance the house to make that change.
Other than a house, a retirement account is usually a couple’s largest financial asset. In fact, at this stage in their lives, a retirement account might be a bigger asset. Also, at this stage in life, that retirement account has most likely been divided once.
IRAs, 401(k)s, and other nest egg accounts often have large financial values. The emotional value might be even higher. To allow owner spouses to retain more of their accounts, a Marietta family law attorney often arranges a spousal support offset. More on that below.
Child Support
Georgia’s child support formula, which is presumptively reasonable, doesn’t account for prior child support payments or obligations. A large number of prior children could allow a Marietta family law attorney to rebut that presumption and force the judge to recalculate child support. Some factors to consider in this recalculation include the child’s:
- Age at the time of divorce,
- Standard of living during the parents’ marriage,
- Special medical, educational, or other needs, and
- Child’s income from a trust fund or part-time job.
Second divorces usually involve older children. In Georgia, child support obligations end when children graduate from high school or are otherwise emancipated. However, if the parents agree to continue child support while the child is in college, that agreement is usually enforceable.
Speaking of agreements, most divorces settle out of court. However, the judge won’t approve the settlement unless it’s consistent with Georgia laws.
Spousal Support
A premarital agreement or a setoff could affect the amount and/or duration of alimony payments in a second divorce.
As mentioned, prenups are usually binding. Typically, these agreements include stairstep provisions. The longer a subsequent marriage lasts, the looser the cap becomes. Note that a spousal support cap is simply the upper limit. The actual award might be lower, depending on the facts of the case.
Spousal support/retirement account setoffs are much more complex under the new tax laws which took effect in 2019. For many years, obligors deducted payments and obligees didn’t report payments. Now, obligors cannot deduct payments and obligee must report them.
The standard factors come into play as well. In one way or another, these factors hang on two principles, which are the obligee’s financial need and the obligor’s ability to pay.
Second-time divorces have unique issues. For a free consultation with an experienced Marietta family law attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
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