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Prenuptial Agreements

Why Get One?
When 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.

Community Property
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 society.

Out-of-Control Spending
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.

Divorce
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?

Prior to Marriage
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.

After Marriage
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.


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