Implications of Prenuptial and Postnuptial Agreements under Louisiana Law

By Justin T. Mannino and Heidi B. Bieber

Louisiana is a community property state, meaning that property acquired during a marriage is generally considered jointly owned by both spouses. Pre-nuptial and post-nuptial agreements allow individuals to contract out of the default community property rules and define their own terms regarding property ownership and rights. Whether you are newly engaged or years into your marriage, taking the time to understand how the community property regime works is crucial to determining whether a pre-nuptial and post-nuptial agreement is right for your situation.

Separate versus Community Property and Obligations

All property owned by married persons domiciled in Louisiana is classified as either community or separate. Under Louisiana law, community property is a system of marital co-ownership governed by the legal regime of community of acquets and gains. Each spouse owns a present undivided one-half interest in all community property. There are six enumerated community property categories.

1. Earnings and labor: Property acquired during the existence of the community property regime through the effort, skill, or industry of either spouse (i.e. wages, salaries, and business income earned by either spouse during the marriage).
2. Property acquired with community funds: Property acquired with community things or with community and separate things, unless classified as separate property.
3. Joint donations: Property donated to the spouses jointly.
4. Fruits of community property: Natural and civil fruits of community property, such as rents, interest, and dividends generated by community assets.
5. Damages for community property: Damages awarded for loss or injury to a thing belonging to the community.
6. Catch-all provision: All other property not classified by law as separate property. This category ensures the community is broadly defined and strongly favored.

Even the natural and civil fruits of a spouse’s separate property, as well as minerals produced from or attributable to a separate asset and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases, are classified as community property by default.

In addition to assets, the community property regime encompasses obligations. Louisiana law defines a community obligation as an obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse. Except as otherwise provided, obligations incurred during the community property regime are presumed to be community obligations.

Matrimonial Agreements = Pre-nuptial & Post-nuptial Agreements 

In Louisiana, pre-nuptial and post-nuptial agreements are known as matrimonial agreements. The community property regime governs the ownership and management of property between spouses, unless the spouses opt out by executing a matrimonial agreement establishing a separate property regime. A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime (Louisiana’s default community property regime). Louisiana imposes strict form requirements on matrimonial agreements. A matrimonial agreement must be made by (1) authentic act or (2) by an act under private signature duly acknowledged by the spouses.

In addition to the form requirements, a pre-nuptial agreement must be executed before the marriage. A matrimonial agreement executed before the marriage takes effect automatically upon the marriage. The most significant distinguishing feature of a post-nuptial agreement under Louisiana law, as opposed to a pre-nuptial agreement, is the requirement of court involvement. For post-nuptial agreements, spouses have to file a joint petition with the court to opt out of the community property regime. A court must find that the agreement serves the spouses’ best interests and that they understand the governing principles and rules. 

Conclusion

Louisiana’s default community property regime can cause confusion as to the ownership of assets and obligations. Among other things, Louisiana residents can use pre-nuptial and post-nuptial agreements to protect pre-marital separate property, safeguard business assets and investments, establish a comprehensive separate property regime for all future assets, and protect against liability from a spouse’s debt. For more information on whether a pre-nuptial or post-nuptial agreement is right for you, contact justin.mannino@taylorporter.com and heidi.bieber@taylorporter.com