Planning Challenges: Marriage, Divorce and Remmariage

Although this case is unusual, it shows how life changes can destroy the best of plans or intentions. This case highlights the importance of updating those plans after a life event, such as birth, death, marriage, divorce and remarriage. You should especially heed these lessons if you:

A. are divorced and have reconciled or might reconcile with your former spouse;

B. are single and want to solidify control over your assets in preparation of a future marriage;
or

C. are cohabitating with a significant other.

When Howard Herpich and Svetlana Ozerova married in February 2003, they signed a prenuptial agreement in which each waived his or her rights to property that the other brought into the marriage. This agreement also directed that, "in the event of a separation and reconciliation," the document would remain binding. One month after the wedding, the couple separated. Their divorce was finalized in early 2005. In executing the prenuptial agreement, the couple divided up marital assets accordingly and settled their joint financial affairs. Six months later, the Herpiches reconciled and remarried. When Mr. Herpich died two years later, Mrs. Herpich was appointed personal representative over his estate. Mr. Herpich’s two adult children from his prior marriage sought to prevent their stepmother from controlling any part of his estate, claiming that the prenuptial agreement remained in effect. The trial judge sided with Mr. Herpich’s children, determining that the prenuptial agreement remained valid despite the divorce the separated the couple's first and second marriages.

The judge ruled that the terms "separation and reconciliation" encompassed divorce and remarriage and essentially denied Mrs. Herpich any control to her late husband's estate. Mrs. Herpich appealed, and the appellate court reversed the trial judge's ruling, finding that the “separation and reconciliation" wording in the agreement cannot be considered the same as "divorce and remarriage.” The appellate court ruled that the prenuptial agreement had been effectively terminated by the 2005 divorce and was no longer binding, since the original agreement's language had anticipated only one marriage between the Herpiches, not a divorce and a remarriage.