The topic of this article is matrimonial agreements. Many people use the term “prenuptial agreement” to refer to what the Louisiana Civil Code terms a “matrimonial agreement.” I will avoid using the term “prenuptial agreement” because doing so creates confusion since a matrimonial agreement can actually be entered into before or after a couple exchanges nuptial vows.
In order to more fully understand matrimonial agreements, it is first necessary to define the legal term “matrimonial regime.” The Louisiana Civil Code provides that “[a] matrimonial regime is a system of principles governing the ownership and management of the property of married persons as between themselves and towards third persons.” La. C.C. art. 2325. “A matrimonial regime may be legal, contractual, or partly legal and partly contractual.” La. C.C. art. 2326.
The default matrimonial regime for couples married in Louisiana or who reside in Louisiana is the legal regime (commonly called the community property regime). The legal regime applies to the majority of couples residing in Louisiana.
“A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime.” La. C.C. art. 2328. Thus, a matrimonial agreement can be utilized by a couple to opt out of the legal regime before marriage, modify the legal regime before or during marriage, or even terminate the legal regime during the marriage. Court approval is required for spouses to terminate or modify the legal regime during the marriage
During the first year after moving into and acquiring a domicile in Louisiana, however, spouses may enter into a matrimonial agreement without court approval.
The Louisiana Civil Code provides specific form requirements for matrimonial agreements. As contracts, matrimonial agreements are also governed by the general rules of conventional obligations. Matrimonial agreements that do not comply with the general principles for matrimonial agreements and rules of conventional obligations outlined in the Civil Code can be null and void. Much care must be taken when drafting and entering into matrimonial agreements to ensure that they are effective.
In summary, a matrimonial agreement is a mechanism that can be used to opt out of, alter or terminate the default community property regime. I hope this article has not served to confuse anyone. The legal terms and concepts contained herein are complicated and an attorney should be consulted before entering into a matrimonial agreement or if one has questions about the validity of a matrimonial agreement.
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