Can I Get One?
Why Get One?
We've all heard it, from both men and
women. If a man asks a woman to sign a prenuptial agreement
or marriage contract then he must not love her, right? Historically,
marriage contracts are generally viewed as an insult to the
spouse that has less income and assets than the spouse who
is trying to protect assets.
That may be true in some circumstances.
It is suggested, however, that the benefits of prenuptial
agreements can far outweigh any injury to romantic notions.
Louisiana is a community property state. That means that all
of the assets of both spouses are considered to be available
to satisfy the debt of either spouse. Think about that. If
one of the spouses has an accident or causes the severe injury
or death of another, then all of the parties' assets are available
to satisfy that wrongful act by just one of the spouses.
If a prenuptial agreement has been entered
into, then the spouses each have what is in effect their own
separate estates that cannot be attacked by a creditor of
the other spouse. Thus, if both spouses have income and assets,
it could be beneficial to have separate estates to protect
themselves from being "wiped out" in today's litigious
Although no one likes to talk about it, many, many couples
suffer from having to put up with one spouse's inability to
control the use of credit cards and spending. One spouse simply
cannot control his or her spending and continues to obligate
the entire family with credit cards, all while the other spouse
works his or herself to death trying to pay for all of the
things that they could not afford.
An alternative to divorcing the "out
of control spender" may be to simply enter into a contract
of separate property so that the person who continues to incur
the debt will no longer cause the other spouse to be liable
as well. It will not take long for the spouse with the spending
and credit problem to lose all the credit cards, have no credit,
and not be able to continue to impact the marriage with such
misery. His or her credit will be ruined and no further credit
will be extended to that person, ending the problem.
Finally, and although no one would like to think about it
when they are entering into a marriage, many, many marriages
end in divorce these days. The statistics are dismal compared
to fifty years ago, and like it or not, there's a significant
risk of divorce in every marriage today. And, based on years
of experience in family law, no couple ever thinks it will
happen to them. Then one day they find themselves in a lawyer's
office in the middle of divorce proceedings.
That said, prenuptial agreements can
significantly reduce the amount of attorney's fees expended
at the termination of a marriage, because oftentimes fierce
litigation ensues over assets that must be divided at the
termination of the marriage.
As one might expect, one party has usually
worked very hard to provide the family with income, a nice
home and automobiles, etc., and the other spouse has stayed
home keeping the house and all of those automobiles clean,
the children fed and clothed, etc. Without fail, the husband
or wife who has been the bread winner perceives that it will
be "giving money away" to the person who didn't
earn anything if the assets are split 50/50. The person who
is not the bread winner will feel like they sacrificed their
ability to pursue a career and obtain a high paying job in
order to stay home and take care of the house and kids such
that they ought to be compensated as a full partner.
There is no way to avoid the diametrically
opposed viewpoints of couples when they divorce, and the only
way that it can be eradicated from the start is to enter into
a binding prenuptial contract that sets out what the parties'
rights will be to various property at the time of a divorce.
Certainly, this is a complicated area
of law that requires much more discussion than is set forth
here. In order to discuss all of the facts and circumstances
regarding separate property agreements, marriage contracts,
prenuptial agreements, and the like, you should come in for
a free consultation.
When Can I Get One?
There are different requirements for obtaining separate property
arrangements and marriage contracts depending on when it is
entered into in relation to when the parties are married.
For example, parties are free to enter into a prenuptial agreement
and marriage contract of separate property prior to being
married, and they can do so simply by consulting an attorney
to draft the agreement and properly record it in the public
records. There is no need for Court approval of such agreements
prior to marriage and the parties can do so at their own desire.
Once the parties are married, however, they cannot end the
community property laws that are binding upon them without
Court approval. To do so requires that pleadings be filed
with the Court to demonstrate why the parties now desire to
be under a separate property agreement. There must be a division
of all the community property they have accumulated so far,
and the judge has to render a judgment ending the prior community
property and placing the parties upon new legal ground as
separate property owners. Furthermore, the documents must
be handled in a certain way and filed and recorded so as to
be binding upon third parties, etc.
Again, these issues require much closer
scrutiny and are more complicated than set forth herein, and
you should make an appointment for a free consultation to
discuss your situation and needs.