What does a Matrimonial Agreement do?
In Louisiana, when you get married, the law automatically considers most property acquired during the marriage as jointly owned by both spouses—this is called the community property regime. However, couples can choose a different arrangement by creating a Matrimonial Agreement.
Key Points
- What It Is: A Matrimonial Agreement is a legal contract where you and your spouse decide how to own and manage your property, either keeping things separate or mixing them in a way that suits you both.
- When to Make One:
- Before Marriage: You can set this up before tying the knot without needing court approval.
- After Marriage: If you decide to create or change the agreement after getting married, you’ll need to get a judge’s approval to ensure it’s fair and in both of your best interests.
- What You Can’t Change:
- Inheritance Rights: You can’t alter certain rights like inheritance or the marital portion through this agreement.
- Support Obligations: You also can’t waive responsibilities like child support or temporary spousal support.
- Making It Official: To make sure everyone knows about your agreement, especially if it involves real estate, you need to file it with the local parish’s conveyance records where the property is located. This step protects your property from potential claims by your spouse’s creditors.
In simple terms, a Matrimonial Agreement lets you and your spouse customize how you handle your assets and finances, rather than sticking strictly to the state’s default rules. It’s a way to plan ahead and ensure that both of you are on the same page regarding your property and financial matters.
In Louisiana, a Matrimonial Agreement—commonly referred to as a prenuptial (before) or postnuptial (after) agreement—is a legally binding contract that allows spouses to establish a specific property regime, either before or during marriage. This agreement enables couples to define the ownership and management of their assets, tailoring their financial relationship to their unique circumstances.
Framework
According to Louisiana Civil Code Article 2328, a matrimonial agreement is defined 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.”
This provision grants couples the autonomy to opt out of the default community property regime, known as the legal regime, and create a customized arrangement that suits their needs.
Some Types of Matrimonial Regimes
- Legal Regime (Community Property): By default, Louisiana law classifies property acquired during marriage as community property, jointly owned by both spouses.
- Contractual Regime (Separate Property): Through a matrimonial agreement, spouses can establish a regime of separation of property, designating assets as separate rather than communal.
- Partly Legal and Partly Contractual Regime: Couples may modify certain aspects of the legal regime while retaining others, creating a hybrid arrangement.
Execution and Formalities
- Before Marriage: Spouses may enter into a matrimonial agreement without court approval. The agreement must be in writing and executed before a notary public, with two witnesses signing the document alongside the spouses and the notary.
- During Marriage: To establish or modify a matrimonial agreement after marriage, spouses must obtain court approval. This process involves filing a joint petition explaining why the agreement serves the best interests of both parties.
Some Limitations
Certain provisions cannot be altered through a matrimonial agreement:
- Marital Portion and Order of Succession: Spouses cannot renounce or modify the marital portion or the established order of succession, as these are matters of public policy.
- Obligations to Third Parties: The agreement cannot limit the right of one spouse to obligate the community or to alienate, encumber, or lease community property concerning third parties.
- Support Obligations: Spouses cannot contract out of obligations such as child support or interim spousal support.
Recording Requirements
For the matrimonial agreement to be effective against third parties, it must be recorded in the conveyance records of the parish where any immovable property is located. This recording provides public notice of the property’s separate status, protecting it from claims by creditors of the other spouse.
Note: This explanation is for informational purposes only and does not constitute legal advice. For specific legal concerns, consult with a qualified attorney.
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