Prenuptial Agreements in Louisiana

Will a Louisiana court enforce your prenuptial agreement?

Decades ago, courts frowned on prenuptial agreements, believing that they turned a sacred and personal bond into a financial arrangement. Over the years, however, courts realized that marriage and divorce have financial implications for each spouse, and began allowing couples to determine their own financial future by entering into agreements that determined how their finances would be settled in the event of a divorce.

If you or your future spouse are considering a prenuptial agreement, you should understand how they work in your state. This article explains how prenuptial agreements work in Louisiana, and how to ensure your agreement is enforceable.

What Is a Prenuptial Agreement?

A prenuptial agreement, also called a “matrimonial agreement” in Louisiana, is a contract a couple makes to determine how their assets and debts will be divided if they divorce or one spouse dies. The agreement becomes effective when the couple gets married.

Who Should Get a Prenuptial Agreement?

There are a number of reasons a couple may want to enter into a prenuptial agreement. While prenuptial agreements are often considered “unromantic,” studies have shown that they actually increase marital happiness by giving both spouses certainty about their financial future, allowing them to focus more on their present relationship.

Some people want a prenuptial agreement to protect their assets when marrying someone with significantly less wealth. People who have children from previous relationships often use these agreements to make sure their children's right to inherit is protected from claims by the new spouse. Others may simply want the prenuptial agreement for tax considerations, or to plan their division of property and alimony ahead of time, especially when one spouse plans not to work during the marriage.

What Issues Can a Prenuptial Agreement Cover?

In Louisiana, a married couple is automatically part of the “legal matrimonial regime,” which means that if the couple divorces, their property is distributed according to Louisiana law. Couples can opt out of the legal regime by signing a prenuptial agreement, which places them in the “contractual regime.” This means the couple's own agreement will determine who gets what, even if the law would require a different division absent a prenuptial agreement. Couples may also choose the “separate property regime,” which means that each spouse uses, enjoys and disposes of his or her own property without the consent of the other spouse.

Spouses may enter into a prenuptial agreement regarding any issues that are not covered by law, but usually the agreement covers things like:

  • each spouse’s rights to property owned by each of them, and jointly as a couple
  • how assets and debts are divided if the couple divorces or one spouse dies
  • whether one spouse will pay the other alimony, and if so, the amount and duration
  • whether a spouse must reimburse the other for certain amounts spent during the marriage
  • how the spouses will pay expenses during the marriage, and
  • whether the terms of the agreement take effect upon divorce, death, or some other event.

Prenuptial agreements may not include any of the following:

  • an agreement about temporary alimony (spousal support paid while the divorce is still pending)
  • an agreement about sexual activity between spouses
  • a requirement that alimony be paid regardless of fault, including adultery, or
  • an allowance for one spouse to dispose of community property, or property belonging to the other spouse, to a third person.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Louisiana?

Prenuptial agreements can never determine child custody or child support.

The right to child support belongs to the child, not to the parent receiving child support. A parent has no authority to contract away the child’s right to be supported financially by both parents.

Child custody is determined either by the court at the time the parents separate, or by the parents’ agreement at the time they separate, with the court’s approval. The court will either decide or approve child custody based on what is in the child’s best interest at the time the parents separate.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Louisiana?

In Louisiana, the couple must put its prenuptial agreement in writing and both spouses must sign the contract. The spouses are required to sign the agreement before a notary, and two witnesses must also sign it. All signatures should be completed before the marriage.

You must also record the agreement in your parish’s conveyance office. If you and your spouse live in different parishes, you need to record the agreement in the conveyance office of each parish. Also, if the agreement deals with real property, you need to record the agreement in the parish where the property is located.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

Louisiana courts typically enforce prenuptial agreements.

The court will invalidate (throw out) the agreement if it has not been signed by both spouses, a notary, and two witnesses before the marriage.

The court will also invalidate the agreement if any of the following rules for Louisiana contracts have not been met:

  • Capacity. Both spouses must be mentally competent (that is, not suffering from mental illness, mental deficiency, or intoxication) and of legal age to be married.
  • Consent. Both spouses must freely and voluntarily sign the agreement.
  • No fatal errors. The agreement can’t have serious errors that make the intent of the couple unclear.
  • No fraud. Both spouses must have honestly disclosed their assets and debts to the other, and neither spouse may have tricked the other into signing the agreement.
  • No duress. Neither spouse may have forced the other to sign the agreement or threatened serious injury to coerce the other to sign it.

If you are considering signing a prenuptial agreement, you should consult a  Louisiana family law attorney  for advice.

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