AVOID PROPERTY DIVISION DISPUTES WITH A PRE-NUP OR POST-NUP.

Separate Property Agreements in Louisiana

Separate property agreements, also known as matrimonial agreements, can be tailored as the spouses see fit.  They can be drafted to contract out of certain parts of the community property regime, or to completely establish a regime of separate property.  However, there are certain things than cannot be contracted out of, such as the obligation to pay child support and interim alimony.  Nevertheless, they are invaluable in avoiding the possibility of a property division dispute in the event the marriage breaks down to the point of a divorce.

Prenuptial agreements are not only for the wealthy.  We recommend them to spouses with blended families, clients who own a home prior to marriage, and clients who own a business prior to marriage, among others.  Asking your significant other for a prenuptial or postnuptial agreement does not mean that you’re not in love or intend to remain married forever; it simply means that you recognize circumstances change and want to plan for all possible outcomes, or even that you want to protect them from your business debts.  If you are interested in entering into a separate property agreement, call our experienced family law attorneys for advice in drafting an agreement that meets your needs.

La. Civ. Code art. 2328 defines a matrimonial agreement as a contract establishing a regime of separation of property or modifying or terminating the legal regime.  Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law.  The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.

La. Civ. Code art. 2329 states that prior to marriage, spouses may enter into a prenuptial matrimonial agreement modifying, or opting out of, the community property regime. Spouses may by matrimonial agreement: provide for the parties’ respective contributions to the expenses of the marriage; provide for the apportionment of community property according to fixed shares; provide for the reservation of fruits as separate property; provide that the spouses’ existing or future property shall be subject to the matrimonial regime.  During the marriage, spouses may enter into a postnuptial agreement that accomplishes the same but must get court approval.

Per La. Civ. Code art. 2330, spouses may not by agreement before or during marriage renounce or alter the marital portion or established order of succession.  The policy here is that the marital portion (and the order of succession) are rules of public order that may not be derogated from by agreement.  This is in contrast to a renunciation of the marital portion after a spouse’s death, in which the survivor may renounce the marital portion.  The spouses also may not limit with respect to third persons the right that one spouse alone has under the legal regime to obligate the community or to alienate, encumber, or lease community property.

Under La Civ. Code art. 2332, for the agreement to be effective toward third persons, it must be recorded in the conveyance records of the parish or parishes in which immovable property is owned.  For example, if a home is separate property per a matrimonial agreement, the contract must be recorded in the parish where the home is situated so that third parties have notice of its separate property status.  Otherwise, creditors of the other spouse can execute a judgment against the separate property of the other because it is presumed to be community property.

The family law attorneys at Bowes, Petkovich & Palmer, LLC have drafted many prenuptial and postnuptial agreements for clients in the New Orleans and surrounding areas.  Call us today for a free consultation.