Louisiana Prenuptial Agreement
What do crawfish, po’boys, beignets, and unyielding prenuptial agreement formalities all have in common? Louisiana! In 2017, Louisiana’s Supreme Court carved out greater hurdles for prenuptial agreement requirements. You can read all about Louisiana’s strict approach to prenup procedures below. Just make sure before you go celebrating your bachelor(ette) party on Bourbon Street, you get that prenup squared away.
Louisiana Prenuptial Agreements
The Louisiana courts refer to prenuptial agreements as either “matrimonial agreements” or “prenuptial agreements.” A prenuptial agreement is a legal contract executed between two parties before getting married. Louisiana has tricky formalities that you need to pay close attention to, and if you don’t follow the procedure correctly, the court will invalidate your prenup. A Louisiana prenup is only valid if signed by both spouses, two witnesses, a notary, and filed with the local parish office(s). Alternatively, if you don’t want to have two witnesses and a notary, you can privately sign, but you still must “acknowledge” your signatures later with a notary, court, or another authorized official. Regardless of the method of execution, all signatures and acknowledgments must occur before the marriage takes place.
Louisiana’s Prenuptial Agreement statute and case law govern the laws in Louisiana pertaining to prenups and outline the rules and requirements for a valid agreement. The terms of a Louisiana prenup may include certain alimony limitations, property division, assets, debt, and more. On the other hand, a prenup in Louisiana cannot contract around child support, child custody, temporary alimony during a divorce proceeding, and non-financial matters (i.e., sexual activity).
The 2017 case that changed Louisiana prenups for-ev-er
A landmark Louisiana Supreme Court case known as Acurio v. Acurio laid the new framework for prenuptial formalities in Louisiana. This case came about in recent years (2017), and the court had to decide whether parties must duly acknowledge their signatures prior to the marriage for a prenup to be valid. Note, to properly execute a Louisiana prenup, you must either: (a) sign the prenup with two witnesses and a notary or (b) privately sign the prenup, and later you must both “acknowledge” your signatures before a court, notary, or another authorized officer. Thus, the question the Acurio court had to answer was: can you privately sign and have the prenup duly acknowledged after the marriage takes place? (Hint: the answer is no).
Husband and Wife married and got divorced. Then, they got married again and then divorced…again. No judgment, though; love works in mysterious ways! However, before marrying for the second time, they decided to execute a prenup. In executing the prenup, they both signed it, along with only one witness and a notary (Louisiana law requires two witnesses). They had to duly acknowledge their signatures since they didn’t meet the two-witness requirement. So, Husband and Wife later duly acknowledged the signatures during the divorce proceedings. The key piece of information here: they duly acknowledged their signatures during the second divorce.
Wife argued, which the Court ultimately agreed with, that the agreement did not follow the Louisiana statutory formalities. The couple did not duly authenticate the signatures on the prenup before the marriage. Thus, the court threw out the prenup.
What can we learn from the Acurios? If you don’t properly execute the prenup formalities of Louisiana law, your prenup will not stand. You must both sign the contract, along with two witnesses and a notary (or under private signature duly acknowledged by the spouses) before the wedding takes place. I repeat: the prenup must be signed, sealed, delivered in all aspects before the marriage.
Finally, don’t forget that you must file the prenup in the local parish, maybe even more than one! If the prenup discusses real estate, you must also file in the parish that the real estate is located. If you both live in different parishes, you should file in both locations.
Acurio v. Acurio, 224 So.3d 935 (2017)
What to include in a valid Louisiana Prenup
For a Louisiana prenup to be considered valid, you should consider the following:
- The contract must be in writing
- The terms must be lawful and not violate public policy
- Must be signed voluntarily by both parties (without being under duress, fraud, or misrepresentation)
- Must have a notary and two witnesses sign (must be done before the wedding)
- Must give full disclosure of all financial assets and income *Do not skimp on this*
- Filing/recording of a prenuptial agreement is only needed to make the agreement effective as to third parties.
What to exclude from your Louisiana prenup
To make sure that your prenup comports with Louisiana law, make sure not to include…
- Terms regarding child support
- Terms regarding child custody
- Terms restricting temporary spousal support (a.k.a., alimony) during the divorce proceeding
- Terms requiring spousal support regardless of fault (i.e., adultery).
- Non-financial terms, such as sexual activity or relationships with in-laws
- Terms violating public policy
Do out-of-state prenups remain valid in Louisiana?
The short answer is most likely yes. As you’ve probably read by now, Louisiana has strict procedural requirements for validating a prenup, such as the requirement of two witnesses and a notary and filing the prenup in each relevant local parish. But what happens if you create a prenup in another state, then move to Louisiana and get a divorce there? Does your prenup now become invalid because you didn’t follow the prenup procedures of Louisiana? The answer is no; your prenup will still be valid if it was created in another state, as long as it doesn’t violate any Louisiana policy.
The case law that deals with this issue went as follows. A couple executed a prenup in Tennessee with a notary but without two witnesses and later married in Guatemala. The prenup stated that the laws of Tennessee would govern the contract. The couple then moved to New Orleans for a few years before filing for divorce. The husband asked to throw out the prenup in the divorce proceedings because it did not meet all of Louisiana’s procedural requirements. He argued that they should have executed a new prenup in Louisiana or filed the Tennessee prenup into the Louisiana public records.
The court disagreed with the husband and held the prenup valid. The court reasoned:
- The court stated that it would be pointless to reconstruct the same agreement in another state when the prenup clearly intended to apply in all states.
- Louisiana law prefers to uphold out-of-state prenuptial agreements.
- The couple properly constructed the prenup under Tennessee law. Tennessee does not require two witnesses, only a notary. Therefore, since the prenup stated the laws of Tennessee should govern, the prenup should be interpreted under Tennessee law.
Filing & Notification of Third Persons
Filing/recording of a prenuptial agreement is only needed to make the agreement effective as to third parties.
A matrimonial agreement, or a judgment establishing a regime of separation of property is effective toward third persons as to immovable property, when filed for registry in the conveyance records of the parish in which the property is situated and as to movables when filed for registry in the parish or parishes in which the spouses are domiciled. La. Civ. Code Ann. art. 2332. Neivens v. Estrada-Belli, 228 So.3d 238 (La.App. 4 Cir. 2017)
Statutes & terms to understand for a Louisiana Prenup
*Before diving into the deep end, let’s go through some terminology and phrases that will be used in your prenup – that way, you don’t go cross-eyed trying to decipher the legal jargon and miss something.
Official term for Divorce in Louisiana
A divorce occurs when two people, who have been legally married, begin the court process to end the marriage. Louisiana is one of the few states that still recognizes “fault” as a reason for divorce. Meaning you can file for divorce based on the claim that one spouse “did something wrong.” You can also file for a “no-fault” divorce in Louisiana, meaning that no one is to blame; it simply isn’t working out anymore.
How to end a marriage in Louisiana
To file for a “no-fault” divorce in Louisiana, you must live separate and apart, continuously, for at least six months, if no children. If there are children of the marriage, you must live apart for one year before you can file for a “no-fault” divorce.
There are only certain grounds for filing a “fault” divorce in Louisiana. These grounds include:
- Your spouse committed adultery
- Your spouse committed a felony
- Your spouse physically or sexually abused you or your kids
- You received a protective order against your spouse from abuse
If your spouse has not committed a felony, adultery, or abuse, then you should start by living separately and apart. You cannot file for divorce without either showing fault or living separately and apart for a certain amount of time.
Each state has residency requirements that must be fulfilled before you can divorce in that state. In Louisiana, the spouse initiating the divorce must live in the state for at least six months prior to filing for divorce.
Official term for property not considered part of the marital estate
Separate property means property that does not get divided in the divorce. Louisiana is one of the few states that adhere to a community property regime, meaning that property is divided 50/50. Louisiana courts consider separate property to be property acquired before marriage, property acquired with separate assets, individual inheritances, or gifts made out specifically to one person. If this is not to your liking, you’ll need to specify how you want your property divided in a prenuptial agreement.
Spousal Support (also commonly known as Alimony)
Term used for Spousal Support: “Alimony”
There are two types of spousal support in Louisiana: temporary support (paid only during the divorce proceedings) and permanent support. In Louisiana, you may include provisions restricting permanent spousal support in your prenuptial agreement. However, you cannot include a provision prohibiting temporary spousal support during the divorce proceedings.
A spouse may only pay permanent support when the receiving spouse has not been at fault for adultery, felony, or abuse. There are various factors that the court considers when determining the amount and duration of permanent support. You may waive or limit permanent support in your prenup. Temporary support, also known as interim support, is money paid to one spouse while pending divorce proceedings. You may not waive temporary support in your prenup.
Temporary spousal support and prenups
Louisiana law does not allow couples to waive or limit spousal support during divorce proceedings. The Louisiana legislature created temporary support to reinforce the policy that spouses must support each other during the marriage. The disadvantaged spouse should receive support throughout the duration of the marriage, including the divorce proceedings, since the divorce is not final yet.
On the other hand, there is no restriction on limiting permanent spousal support in your prenup. Louisiana courts reason that permanent spousal support, unlike temporary spousal support, is not a law enacted for the public interest but rather to protect individuals. Individuals may contract as they please when they are not in a marriage. In other words, once the divorce is final, there is no longer a policy requiring you to support your ex-spouse.
The case that led to this decision is Barber v. Barber, 38 So.3d 1046 (La.App. 1 Cir 2010). Husband and Wife were married in 1999, and two days before the wedding, they executed a prenuptial agreement. The prenup stated that Husband would not provide temporary or permanent spousal support to Wife, among other property division clauses. Husband filed for divorce in 2006 and sought to enforce their prenup. Wife sought to have the prenup held as valid because she wanted to receive temporary and permanent spousal support. The court stated that the clause eliminating her right to temporary support is invalid, but the part that eliminates her right to receive permanent spousal support was valid.
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