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Marriage Is A Contract That Creates Community Property

Under Louisiana law, LA-R.S. 9:237, when domestic partners marry, any property owned by the individual parties will become subject to the state’s community property laws, unless the couple signs a prenuptial agreement or post-nuptial (after date of marriage) specifying which property will remain separate and in the control of the individual spouse. Even a prenuptial agreement, however, may not prevent the property as being classified as community property if the spouses commingle (join) the assets and realize a gain on their investment or take on increased debt as a result.

What Is Required To Make A Prenuptial Or Post-Nuptial Contract Valid?

Under Louisiana community property law, a marital property contract must meet the following criteria in order to be considered valid when determining whether property and debt will remain classified as separate property:

1. The contract cannot be signed by either party under financial duress or physical threat

2. Each party must act as his or her own legal counsel or retain separate legal counsel. The couple cannot retain the services of a single lawyer

3. The agreement must be drafted and signed far enough in advance of the marriage (usually six months) to give the courts confidence that both parties had sufficient time to review and revise the provisions of the contract prior to the marriage

4. The property protected by the contract must be specified and can include no hidden assets

5. The contract cannot result in an undue financial advantage for one spouse at the expense of disregarding the other spouses security

Marital property agreements can also be used to specify particulars such as:

  • How community debt will be divided among the spouses
  • Which spouse will retain ownership of the primary residence
  • Which spouse will retain ownership of a family-owned business
  • Custody and parenting rights over children from the marriage and step-children

The courts do not need to approve of the contract prior to date of marriage. It is important to make sure you receive sound legal counsel and have the contract language drafted to meet every foreseeable contingency regarding a possible dissolution of the marriage and litigation over property and financial assets.

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