Wilma hadn’t had any idea that she’d be thinking about remarrying so soon after her divorce. Indeed, she’d had no plans whatsoever to remarry, from the moment she first learned that her husband was leaving her. And yet, here she was, with her divorce final, and just a few months later things were looking serious in her dating relationship with another man. Wilma was almost embarrassed to admit to her friends how serious she and her new beau were about their marital prospects. He had been married once before, too, although it had been years since his divorce. So he wasn’t on the rebound, as they say. But Wilma wondered about her own emotions and better intentions.

Deciding

Whether to remarry is a deeply personal decision for the divorced individual. Divorcing or divorced individuals may turn to their closest friends and family members for advice. They may also turn to their pastor, psychologist, therapist, or counselor. Divorcing individuals rarely ask their attorneys for any remarriage advice. Yet the law can have some helpful things to say about dating during a divorce proceeding and remarriage after a divorce. And attorneys do get those questions from their clients when representing them in an ongoing divorce.

Policy

The first thing that the law has to say, or that divorce and marriage laws at least imply, about remarriage is that the law generally favors it. That is, the law generally favors anything that ordinarily promotes human flourishing. Close, intimate, marital relationships can certainly promote human flourishing. Marriage has long been the bedrock of society, necessary not only for the sanctity, safety, and satisfaction of sexual relationships but also for bringing the next generation into the world, nurtured, nourished, educated, and socialized into adulthood, ready to marry to repeat the life cycle. Why would law discourage remarriage? If a first marriage didn’t work out, then perhaps a second marriage will. Law thus presents no disability for a divorced person to remarry. 

Timing

Yet in marriage, as elsewhere, timing is everything. For one, a person must not marry a second time unless and until the first marriage concludes with a proper judgment of divorce. It unfortunately happens that spouses sometimes believe that they have divorced but that one or the other has failed to follow through on the required paperwork. Because of the carelessness or mistake of one spouse or the other, the court never entered a signed judgment of divorce. In other cases, a spouse will tell the other spouse that the first spouse submitted the paperwork and that they are divorced, when the first spouse is lying and knows that they are not divorced. In either case, if either spouse attempts to remarry, the remarriage is invalid, even if they have met the license, ceremony, and consummation requirements for a second marriage. The rule is instead one ... at ... a ... time. Get a certified copy of your divorce judgment in hand before remarrying, or your second attempt won’t work, even if you and your putative second spouse think that it has worked.

Dating

Clients in a divorce proceeding also ask their attorneys about dating. When spouses separate, their separation may create opportunities for new intimate relationships, whether they seek those relationships or others seek them out. New dating relationships may tempt separated spouses who have not yet filed for divorce. In those instances, commencing a dating relationship before a formal divorce filing could count as fault in bringing about the divorce. New dating relationships could also severely complicate the ability of the spouses to navigate the divorce proceeding cordially and cooperatively. If children are involved, intimate relationships with someone other than the spouse may become a morality issue affecting child custody. Beware such pre-filing relationships. Dating after a divorce filing doesn’t carry quite the same degree and risk of condemnation, although it, too, could complicate the parties’ effective management of the divorce. Beware post-filing, pre-judgment relationships, too. They might not be technical violations of marriage vows, but then again, spouses would be well within their marital rights to regard them as such, until the marriage formally concludes with a judgment of divorce. Don’t flaunt it before your about-to-be-ex spouse, if you’re going to date.

Effects

Remarriage after a judgment of divorce is perfectly legal. Yet remarriage after divorce can still affect legal rights. The judgment of divorce may expressly provide for events to occur in the event of the remarriage of one party or the other party. See the following paragraphs for examples. Even if the judgment of divorce does not expressly trigger other events upon remarriage, the changes in circumstances that can accompany remarriage may be their own grounds for a party to petition the court for modification of the judgment of divorce. Again, see the following paragraphs for examples. If you are considering remarriage shortly after or even well after your divorce, read your judgment of divorce carefully for potential impacts on your rights and responsibilities under that judgment. Consult your attorney if you have questions over those provisions of your judgment of divorce. Don’t jump into a new marriage without knowing its potential impacts on obligations arising out of a former marriage.

Children

Remarriage could potentially affect child custody, child support, and parenting time provisions in a divorce judgment. Remarriage does not necessarily imply anything negative or positive for the divorced spouses’ children. But remarriage could affect the children, either way. Remarriage to an individual who presents risks to children could certainly affect the remarried spouse’s custody of those children. Yet remarriage may instead provide greater household love, care, and support. It could go either way in a new or renewed custody fight. Remarriage of the non-custodial parent could likewise improve that parent’s claim for custody or affect that parent’s parenting time. The child-support obligation might likewise change with a change in custody or as to daycare expenses or other costs. Be aware of potential effects of remarriage on child custody and support.

Support

Spousal support is the most likely term of a divorce judgment that remarriage might well affect. Divorce judgments routinely name remarriage as a ground for terminating spousal support, unless the parties to the divorce judgment clearly express their intention to make the spousal support permanent, without respect to remarriage or need. Even if the judgment does not condition spousal support on the recipient remaining single, remarriage often eliminates the need for support. The party paying temporary or indefinite spousal support might then seek the judgment’s modification to terminate support, given the remarriage’s satisfaction of the receiving spouse’s needs. Again, confirm the impact of remarriage on your rights to spousal support under your judgment of divorce, before you remarry.

Residence

Another potential impact of remarriage on rights and responsibilities under a judgment of divorce has to do with occupancy and ownership of the marital home. As discussed in a prior chapter, some divorce judgments provide for one spouse, often the spouse having custody of the couple’s minor children, to remain in the marital home. The divorcing spouses may continue to own the home jointly, pending its future sale and division of the proceeds. Remarriage could potentially trigger the marital home’s sale. Remarriage can bring new income and assets into the remarried party’s home or can lead the remarried party to move into the new spouse’s residence. Consider your circumstances and read your divorce judgment carefully, if you continue to occupy the marital home after divorce under express or implied terms and conditions. Don’t lose your marital home or its occupancy over remarriage, if you need to retain it. Enter remarriage with your eyes open. 

Key Points

• Get sound advice from trusted acquaintances on remarriage.

• The law generally favors remarriage for its benefit on households.

• Don’t attempt to remarry until sure that you have a divorce judgment.

• Beware dating before filing for divorce, for fault and effects on children.

• Remarriage can trigger a divorce judgment’s conditions and terms.

• Remarriage can affect child custody, support, and parenting time.

• Remarriage can affect spousal-support obligations.

• Remarriage can affect judgment rights to remain in the marital home.