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My Rights After My Second Divorce



Your rights after a second divorce are not much different than those following your first marriage dissolution. Much depends on what was agreed upon in the second divorce decree or if you had a prenuptial agreement.

Distribution of Property

Regarding marital property, it depends on whether your second divorce occurred in an equitable distribution state or a community property state. Any property that you brought into the marriage in a community property state goes to you, while a court could determine that certain marital property should fairly go to the other spouse in an equitable distribution state depending on factors such as the parties' financial status, duration of the marriage, or the parties' contributions to the marriage.

Custody

Regarding custody of stepchildren after a second divorce, the non-parent will not have rights over the parent unless the latter's rights have been terminated and no other relative has stepped forward to ask for custody rights. There is a preference for the parents to have custody. The only exception may be if the nonbiological spouse has been able to adopt the children. In other circumstances, a non-parent may get custody if any of the following occur:

  • Neither parent is fit.
  • A custodial parent has died, and the other is unfit.
  • Length of physical custody with non-parent was significant.
  • It is in the best interests of the child.

If the child is not in the physical custody of either parent, a third party can file for custody rights if the state follows the Uniform Marriage and Divorce Act. Other states may not allow a third party to bring a custody suit if the child's parents have been married.

Prenuptial Agreement

Although property will be distributed according to whether the state is a community property or equitable distribution, many parties in second marriages will have a prenuptial agreement that will outline how assets and debts will be allocated if the marriage is dissolved.

These agreements are not airtight and can be challenged and ruled invalid in many cases. They must be signed before the marriage, be in writing and entered into voluntarily, and not be oppressive or so one-sided as to be unconscionable. Also, the parties must disclose all of their assets or have knowingly and willingly waived full disclosure.

Your rights after a second divorce will not be materially different and usually must still adhere to any court-approved agreement regarding custody, visitation, support, and property distribution.