Pre-Nuptial and Post-Nuptial Agreements in Louisiana
Pre-Nuptial Agreements are often misunderstood. Common misconceptions are that prenuptial agreements are only for couples who do not expect their marriages to last, or that they only practical for very wealthy people. Modern couples, however, are finding that prenuptial agreements can be beneficial in many circumstances.
When a couple marries, a legal relationship is created, not only between each other but between themselves and the state. This is called the “matrimonial regime” in Louisiana law. Absent a prior agreement, the laws of the state of Louisiana will determine what happens to the property of a married couple after a divorce, or after the death of either of the parties. Louisiana is a community property state, meaning that all property acquired during the marriage is divided equally between the parties, regardless of how long the marriage lasts, when the property is acquired, or what assets were used to acquire the property. A prenuptial agreement allows the parties to opt out of the community property system, exit the matrimonial regime, and create a contractual regime. It takes the decisions out of the hands of the courts and places them with the parties themselves.
When is a Pre-Nuptial Agreement Appropriate?
When one or both of the parties have children from previous relationships, a pre-nuptial agreement can determine inheritance rights between the children and the new spouse.
- If one of the parties comes to the marriage with significantly more assets than the other, a pre-nuptial agreement can protect those assets in the event of a divorce.
- A pre-nuptial agreement can determine how expenses are divided during the marriage, avoiding potential disagreements later on.
- A pre-nuptial agreement can make an eventual divorce much less complicated an expensive by listing exactly what property each spouse brought into the marriage, and how property acquired after the marriage should be divided.
What May Not Be Included In A Pre-Nuptial Agreement?
Pre-nuptial agreements may not include:
- Any agreements regarding custody or child support.
- Limitations on temporary spousal support in the event of divorce.
- Provisions allowing a spouse to sell or give community property or the separate property of the other spouse to another person.
- Agreements relating to sexual activity.
- An agreement to pay spousal support even in the event of fault.
- An agreement that alters the parties’ rights of inheritance as they apply to the marital property.
In order to ensure that a pre-nuptial agreement contains no provisions that are contrary to Louisiana law, it should always be prepared by an attorney. The agreement must be signed, witnessed and notarized prior to the marriage.
A pre-nuptial agreement may be declared invalid and unenforceable in some circumstances. If one of the parties did not freely consent to the agreement, or signed the agreement under duress, the entire agreement will be invalidated. Both parties must be legally competent at the time the agreement was signed; they must be mentally competent and capable of understanding the agreement at the time it was signed, and must also be of legal marriage age. The agreement itself cannot contain any prohibited elements, such as the ones listed above. Inclusion of a prohibited element may invalidate the prohibited item, or even the entire agreement. Finally, the agreement may be invalidated if it is determined that one of the parties failed to disclose vital information, or lied to the other party in some way as to affect their ability to make an informed decision.
Post-Nuptial Agreements in Louisiana
Changes in circumstances after marriage, like the birth of children, inheritances, or simply the desire of the parties, may warrant the creation of a post-nuptial agreement. In order to exit the matrimonial regime once it is created, the parties must obtain court approval. The parties must demonstrate why it is in the best interests of both parties to create a post-nuptial agreement. The parties must also obtain court approval to modify a previously signed pre-nuptial agreement.
Seek Legal Advice from a Metairie Divorce Attorney
Before signing a pre-nuptial agreement, both parties should seek legal advice. A Metairie divorce attorney can explain your rights, so you know exactly what your are gaining, and what you are giving up, by entering a contractual regime in Louisiana. Beware of pre-prepared forms found online. Louisiana marriage and divorce laws are unique and complex. Preparation and execution of pre-nuptial and post-nuptial agreements should only be done with the advice of an experienced divorce lawyer. Attorney Candice Bennatt in Metairie, LA can answer your questions about Louisiana matrimonial and contractual regimes. Call 504-777-3500 for a consultation.