Prenuptial Agreements

Louisiana Prenuptial and Matrimonial Agreements

A prenuptial agreement can provide financial clarity before marriage by establishing how property, income, debts, and other financial interests will be classified and managed.

In Louisiana, a prenuptial agreement is also referred to as a matrimonial agreement. It is a contract through which prospective spouses may establish a separate-property regime or modify the community-property rules that would otherwise apply to their marriage.

Without a valid matrimonial agreement, spouses domiciled in Louisiana are generally governed by Louisiana’s legal community-property regime.

Marino & Ehle, LLC handles select prenuptial and matrimonial-agreement matters for clients who want to define their financial rights and responsibilities clearly before marriage.

What Is a Prenuptial Agreement?

A prenuptial agreement, commonly called a “prenup,” is a matrimonial agreement executed before marriage.

It may identify:

• Which property will remain separately owned
• Whether income earned during marriage will be separate or community property
• How debts will be classified
• How businesses and professional practices will be treated
• How property will be managed during the marriage
• What rights the spouses will have if the marriage ends by divorce or death
• Whether Louisiana’s community-property regime will apply in whole, in part, or not at all

Louisiana law allows prospective spouses to establish a regime of separation of property or modify the legal community-property regime through a matrimonial agreement. Any provisions of the legal regime that are not excluded or modified remain in effect.

A prenuptial agreement may also be called a:

• Premarital agreement
• Marriage contract
• Matrimonial agreement
• Separate-property agreement

Can Spouses Enter into an Agreement After Marriage?

Yes. Louisiana law allows spouses to execute a matrimonial agreement either before or during marriage.

However, spouses who want to modify or terminate their matrimonial regime after marriage generally must file a joint petition and obtain a court finding that:

• The proposed agreement serves their best interests; and
• Both spouses understand the principles and rules governing the matrimonial regime.

Spouses may place themselves under Louisiana’s legal community-property regime without court approval. Louisiana law also provides an exception for spouses during the first year after moving to and establishing a domicile in Louisiana.

An agreement executed after marriage is sometimes informally called a postnuptial agreement, although Louisiana law generally uses the broader term “matrimonial agreement.”

Why Consider a Prenuptial Agreement?

Some couples initially hesitate to discuss a prenuptial agreement because they believe it suggests distrust or an expectation of divorce.

In practice, the process can encourage both parties to discuss:

• Assets
• Debts
• Income
• Businesses
• Financial obligations
• Spending and saving expectations
• Children from prior relationships
• Future inheritances
• Long-term financial goals

Addressing these matters before marriage may reduce uncertainty and prevent later misunderstandings.

A well-prepared agreement allows both parties to understand their financial arrangement before entering the marriage.

Common Reasons for a Prenuptial Agreement

A couple may consider a prenuptial agreement when:

• One or both parties own a business
• Either party has substantial premarital assets
• One party has significantly greater income or wealth
• One or both parties have substantial debts
• Either party owns family property
• One party expects an inheritance
• Either party has children from a prior relationship
• The marriage is a second or subsequent marriage
• One party owns a professional practice
• A family business or closely held company must be protected
• The parties want to avoid or limit Louisiana’s community-property regime
• The parties want greater certainty regarding property and debt

A prenuptial agreement may preserve separately owned property while still allowing the couple to acquire and own other property together.

Louisiana Community Property

Louisiana generally follows a community-property system for married couples who have not entered into a matrimonial agreement establishing a different regime.

Under the legal regime, property acquired during the marriage through the effort, skill, or industry of either spouse is generally classified as community property, subject to statutory exceptions.

Community property may include:

• Employment income earned during marriage
• Property purchased with community funds
• Contributions made to retirement accounts during marriage
• Income generated by community property
• Certain business interests acquired or increased during marriage

Community obligations may include debts incurred during the marriage for the common interest of the spouses or for the interest of the other spouse.

Separate property may include:

• Property owned before marriage
• Property inherited individually
• Property donated to one spouse individually
• Certain damages awarded to one spouse
• Property acquired with properly traceable separate funds

The classification of property can become complicated when separate and community funds are combined, a premarital business grows during the marriage, or community funds are used to improve separately owned property.

What Can a Louisiana Prenuptial Agreement Do?

Depending on the couple’s goals, a matrimonial agreement may:

• Establish a complete separate-property regime
• Modify only selected parts of the community-property regime
• Confirm that premarital assets remain separate
• Classify future earnings as separate property
• Address the ownership and management of a business
• Protect family property or anticipated inheritances
• Define responsibility for existing and future debts
• Establish how jointly acquired property will be owned
• Address reimbursement claims between the spouses
• Define certain financial rights upon divorce or death
• Clarify how retirement and investment accounts will be treated
• Protect the interests of children from a prior relationship

The agreement should be tailored to the couple’s circumstances. A generic form may not adequately address Louisiana property law, business ownership, inheritance issues, or the parties’ specific financial arrangement.

What a Prenuptial Agreement Cannot Control

Louisiana spouses may enter into a matrimonial agreement concerning matters that are not prohibited by public policy.

A prenuptial agreement generally should not be relied upon to:

• Make a binding advance determination of child custody
• Eliminate a child’s right to support
• Require a court to follow an arrangement contrary to a child’s best interests
• Authorize unlawful conduct
• Include provisions that violate Louisiana public policy
• Bind persons or creditors who are not parties to the agreement beyond what the law permits

Child custody and child support are determined under the law applicable when those issues arise, with the child’s interests and the parents’ continuing support obligations remaining subject to judicial review.

Louisiana Execution Requirements

A Louisiana matrimonial agreement must satisfy strict formal requirements.

It may be executed:

• By authentic act; or
• By an act under private signature duly acknowledged by both spouses.

An authentic act is generally signed before a notary and two witnesses in the manner required by Louisiana law.

An act under private signature may be duly acknowledged when each party recognizes the signature as his or her own before a court, notary, or other authorized officer in the presence of two witnesses.

Louisiana does not permit matrimonial agreements or acknowledgments of matrimonial agreements to be executed through remote online notarization.

Failure to comply with the required form may make the agreement invalid or unenforceable.

Full Financial Disclosure and Independent Advice

Before signing a prenuptial agreement, each party should have a meaningful understanding of the other party’s financial circumstances.

Relevant information may include:

• Real estate
• Bank and investment accounts
• Retirement plans
• Business interests
• Income
• Debts
• Tax obligations
• Trust or inheritance interests
• Valuable personal property

Each party should have adequate time to review the proposed agreement. Presenting an agreement immediately before the wedding may create unnecessary disputes concerning pressure, consent, or the opportunity to obtain legal advice.

Because the future spouses may have different financial interests, separate legal representation should be considered. One attorney cannot provide independent legal advice to both parties when their interests differ.

Can a Prenuptial Agreement Be Challenged?

A properly executed matrimonial agreement is a legally binding contract, but it may still be challenged in a later divorce or property-partition proceeding.

A challenge may involve allegations concerning:

• Failure to comply with Louisiana’s required form
• Fraud or material misrepresentation
• Duress or lack of free consent
• Lack of capacity
• Provisions contrary to public policy
• Ambiguous or conflicting language
• Failure to obtain required court approval for an agreement made during marriage
• Disputes over the meaning or application of the agreement

Careful drafting and proper execution can reduce the risk of future disputes, although no agreement can prevent another party from attempting to challenge it.

Recording a Matrimonial Agreement

A matrimonial agreement may need to be recorded to affect the rights of third parties concerning immovable property or other matters governed by Louisiana public-records law.

The appropriate place of recordation may depend on the spouses’ domicile and the location of any immovable property.

An attorney can determine whether and where the agreement should be recorded after it is executed.

When Should the Process Begin?

The process should begin well before the wedding date.

Starting early gives both parties time to:

• Exchange financial information
• Discuss their goals
• Review proposed terms
• Consult separate counsel if appropriate
• Negotiate revisions
• Complete the required signing and acknowledgment process without unnecessary pressure

Waiting until shortly before the wedding may increase tension and create questions about whether both parties had sufficient time to review the agreement voluntarily.

What Marino & Ehle Can Do for You

When Marino & Ehle, LLC accepts a matrimonial-agreement matter, our work may include:

• Discussing the client’s financial goals
• Reviewing assets, debts, businesses, and anticipated inheritances
• Explaining Louisiana’s community-property regime
• Identifying provisions that should be included
• Drafting or reviewing the proposed agreement
• Coordinating revisions with the other party’s attorney
• Ensuring compliance with Louisiana execution requirements
• Advising whether court approval is necessary
• Advising whether the agreement should be recorded

Our role is to provide practical advice and prepare an agreement suited to the client’s particular circumstances.

Contact Marino & Ehle, LLC

Marino & Ehle, LLC handles select prenuptial and matrimonial-agreement matters in Jefferson Parish and the greater New Orleans area.

If you are considering marriage and want to understand how Louisiana community-property law may affect your assets, income, business, or debts, contact Marino & Ehle, LLC for a consultation with attorneys Joseph A. Marino III and Davidson S. Ehle III.