Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all-inclusive discussion of the law of separation agreements in Louisiana,
but does include basic and other provisions.
General Summary: The parties may enter into a community
property or other matrimonial agreement before or during marriage as to
all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or
terminates a matrimonial regime during marriage only upon joint petition
and a finding by the court that this serves their best interests and that
they understand the governing principles and rules. They may, however,
subject themselves to the legal regime by a matrimonial agreement at any
time without court approval.
During the first year after moving into and acquiring a domicile
in this state, spouses may enter into a matrimonial agreement without court
approval.
A marital agreement shall be made by authentic act or by an act
under private signature duly acknowledged by the spouses.
Louisiana Revised Statutes
TITLE 9 CIVIL CODE ANCILLARIES
CHAPTER 1. DIVORCE
PART V. INJUNCTIONS AND INCIDENTAL ORDERS
Possession and use of the family residence or community movables
or immovables:
A. When the family residence is the separate property of
either spouse, after the filing of a petition for divorce or in conjunction
therewith, the spouse who has physical custody or has been awarded temporary
custody of the minor children of the marriage may petition for, and a court
may award to that spouse, after a contradictory hearing, the use and occupancy
of the family residence and use of community movables or immovables pending
the partition of the community property or one hundred eighty days after
termination of the marriage, whichever occurs first. In these cases, the
court shall inquire into the relative economic status of the spouses, including
both community and separate property, and the needs of the children, if
any, and shall award the use and occupancy of the family residence and
the use of any community movables or immovables to the spouse in accordance
with the best interest of the family. The court shall consider the granting
of the occupancy of the family home and the use of community movables or
immovables in awarding alimony or child support.
B. When the family residence is community property, after the filing
of a petition for divorce or in conjunction therewith or after filing a
petition for separation of property in accordance with Civil Code Article
2374 or in conjunction spouses, after a contradictory hearing, the use
and occupancy of the family residence and use of community movables or
immovables to either of the spouses pending further order of the court. In
these cases, the court shall inquire into the relative economic status
of the spouses, including both community and separate property, and the
needs of the children, if any, and shall award the use and occupancy of
the family residence and the use of any community movables or immovables
to the spouse in accordance with the best interest of the family. If applicable,
the court shall consider the granting of the occupancy of the family home
and the use of community movables or immovables in awarding spousal support
or child support.
C. A spouse who uses and occupies or is awarded by the court the
use and occupancy of the family residence pending either the termination
of the marriage or the partition of the community property in accordance
with the provisions of R.S. 9:374 (A) or (B) shall not be liable to the
other spouse for rental for the use and occupancy, unless otherwise agreed
by the spouses or ordered by the court.
D. The court may determine whether the family home is separate
or community property in the contradictory hearing authorized under the
provisions of this Section. Section 9:374.
Louisisana Civil Code
TITLE III. OBLIGATIONS IN GENERAL
CHAPTER 5. PROOF OF OBLIGATIONS
Authentic act:
An authentic act is a writing executed before a notary public or
other officer authorized to perform that function, in the presence of two
witnesses, and signed by each party who executed it, by each witness, and
by each notary public before whom it was executed.
To be an authentic act, the writing need not be executed at one
time or place, or before the same notary public or in the presence of the
same witnesses, provided that each party who executes it does so before
a notary public or other officer authorized to perform that function, and
in the presence of two witnesses and each party, each witness, and each
notary public signs it.
If a party is unable or does not know how to sign his name, the
notary public must cause him to affix his mark to the writing. Art.
1833.
Authentic act constitutes full proof between parties and heirs:
An authentic act constitutes full proof of the agreement it contains,
as against the parties, their heirs, and successors by universal or particular
title. Art. 1835.
TITLE IV. CONVENTIONAL OBLIGATIONS OR CONTRACTS
CHAPTER 4. VICES OF CONSENT
SECTION 1. ERROR
Testimonial or other evidence not admitted to disprove a writing:
Testimonial or other evidence may not be admitted to negate or
vary the contents of an authentic act or an act under private signature.
Nevertheless, in the interest of justice, that evidence may be admitted
to prove such circumstances as a vice of consent, or a simulation, or to
prove that the written act was modified by a subsequent and valid oral
agreement. Art. 1848.
Vitiated consent:
Consent may be vitiated by error, fraud, or duress. Art.
1948.
SECTION 4. LESION
Lesion:
A contract may be annulled on grounds of lesion only in those cases
provided by law. Art. 1965.
TITLE VI. MATRIMONIAL REGIMES
CHAPTER 1. GENERAL PRINCIPLES
Matrimonial regime;
A matrimonial regime is a system of principles and rules governing
the ownership and management of the property of married persons as between
themselves and toward third persons. Art. 2325.
Kinds of matrimonial regimes;
A matrimonial regime may be legal, contractual, or partly legal
and partly contractual. Art. 2326.
Legal regime:
The legal regime is the community of acquets and gains established
in Chapter 2 of this Title. Art. 2327.
Contractual regime; matrimonial agreement:
A matrimonial agreement is a contract establishing a regime of
separation of property or modifying or terminating the legal regime. Spouses
are free to establish by matrimonial agreement a regime of separation of
property or modify the legal regime as provided by law. The provisions
of the legal regime that have not been excluded or modified by agreement
retain their force and effect. Art. 2328.
Exclusion or modification of matrimonial regime:
Spouses may enter into a matrimonial agreement before or during
marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or
terminates a matrimonial regime during marriage only upon joint petition
and a finding by the court that this serves their best interests and that
they understand the governing principles and rules. They may, however,
subject themselves to the legal regime by a matrimonial agreement at any
time without court approval.
During the first year after moving into and acquiring a domicile
in this state, spouses may enter into a matrimonial agreement without court
approval. Art. 2329.
Limits of contractual freedom:
Spouses may not by agreement before or during marriage, renounce
or alter the marital portion or the established order of succession. Nor
may the spouses limit with respect to third persons the right that one
spouse alone has under the legal regime to obligate the community or to
alienate, encumber, or lease community property. Art. 2330.
Form of matrimonial agreement: A matrimonial agreement may
be executed by the spouses before or during marriage. It shall be made
by authentic act or by an act under private signature duly acknowledged
by the spouses. Art. 2331.
Effect toward third persons:
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. Art.
2332.
Minors: Unless fully emancipated, a minor may not enter into
a matrimonial agreement without the written concurrence of his father and
mother, or of the parent having his legal custody, or of the tutor of his
person. Art. 2333.
CHAPTER 2. THE LEGAL REGIME OF COMMUNITY OF ACQUETS AND GAINS
SECTION 1. GENERAL DISPOSITIONS
Persons; scope of application of the legal regime.
The legal regime of community of acquets and gains applies to spouses
domiciled in this state, regardless of their domicile at the time of marriage
or the place of celebration of the marriage. Art. 2334.
Classification of property:
Property of married persons is either community or separate, except
as provided in Article 2341.1. Art. 2335.
Ownership of community property:
Each spouse owns a present undivided one-half interest in the community
property. Nevertheless, neither the community nor things of the community
may be judicially partitioned prior to the termination of the regime.
During the existence of the community property regime, the spouses
may, without court approval, voluntarily partition the community property
in whole or in part. In such a case, the things that each spouse acquires
are separate property. The partition is effective toward third persons
when filed for registry in the manner provided by Article 2332. Art.
2336.
Disposition of undivided interest:
A spouse may not alienate, encumber, or lease to a third person
his undivided interest in the community or in particular things of the
community prior to the termination of the regime. Art. 2337.
Community property:
The community property comprises: property acquired during the
existence of the legal regime through the effort, skill, or industry of
either spouse; property acquired with community things or with community
and separate things, unless classified as separate property under Article
2341; property donated to the spouses jointly; natural and civil fruits
of community property; damages awarded for loss or injury to a thing belonging
to the community; and all other property not classified by law as separate
property. Art. 2338.
Separate property:
The separate property of a spouse is his exclusively. It comprises:
property acquired by a spouse prior to the establishment of a community
property regime; property acquired by a spouse with separate things or
with separate and community things when the value of the community things
is inconsequential in comparison with the value of the separate things
used; property acquired by a spouse by inheritance or donation to him individually;
damages awarded to a spouse in an action for breach of contract against
the other spouse or for the loss sustained as a result of fraud or bad
faith in the management of community property by the other spouse; damages
or other indemnity awarded to a spouse in connection with the management
of his separate property; and things acquired by a spouse as a result of
a voluntary partition of the community during the existence of a community
property regime. Art. 2341.
Acquisition of undivided interests; separate and community property:
A. A spouse's undivided interest in property otherwise
classified as separate property under Article 2341 remains his separate
property regardless of the acquisition of other undivided interests in
the property during the existence of the legal regime, the source of improvements
thereto, or by whom the property was managed, used, or enjoyed.
B. In property in which an undivided interest is held as community
property and an undivided interest is held as separate property, each spouse
owns a present undivided one-half interest in that portion of the undivided
interest which is community and a spouse owns a present undivided interest
in that portion of the undivided interest which is separate. Art.
2341.1.
SECTION 3. TERMINATION OF THE COMMUNITY
Causes of termination:
The legal regime of community property is terminated by the death
or judgment of declaration of death of a spouse, declaration of the nullity
of the marriage, judgment of divorce or separation of property, or matrimonial
agreement that terminates the community. Art. 2356.
Satisfaction of obligation after termination of regime:
An obligation incurred by a spouse before or during the community
property regime may be satisfied after termination of the regime from the
property of the former community and from the separate property of the
spouse who incurred the obligation. The same rule applies to an obligation
for attorney's fees and costs in an action for divorce incurred by a spouse
between the date the petition for divorce was filed and the date of the
judgment of divorce that terminates the community regime.
If a spouse disposes of property of the former community for a purpose
other than the satisfaction of community obligations, he is liable for
all obligations incurred by the other spouse up to the value of that community
property.
A spouse may by written act assume responsibility for one-half of
each community obligation incurred by the other spouse. In such case, the
assuming spouse may dispose of community property without incurring further
responsibility for the obligations incurred by the other spouse.
Art. 2357.
CHAPTER 3--SEPARATION OF PROPERTY REGIME
Separation of property regime:
A regime of separation of property is established by a matrimonial
agreement that excludes the legal regime of community of acquets and gains
or by a judgment decreeing separation of property. Art. 2370.
Expenses of the marriage:
Each spouse contributes to the expenses of the marriage as provided
in the matrimonial agreement. In the absence of such a provision, each
spouse contributes in proportion to his means. Art. 2373.
Effect of judgment:
A. Except as provided in Paragraph C of this Article, a
judgment decreeing separation of property terminates the regime of community
property retroactively to the day of the filing of the petition or motion
therefor, without prejudice to rights validly acquired in the interim between
filing of the petition or motion and rendition of judgment.
B. If a judgment has been rendered on the ground that the spouses
have lived separate and apart either after the filing of a petition for
divorce without having reconciled or for six months, a reconciliation reestablishes
the regime of community property between the spouses retroactively to the
day of the filing of the motion or petition therefor, unless prior to the
reconciliation the spouses execute a matrimonial agreement to the contrary.
This agreement need not be approved by the court and is effective toward
third persons when filed for registry in the manner provided by Article
2332. The reestablishment of the community is effective toward third persons
when a notice thereof is filed for registry in the same manner.
C. If a judgment is rendered on the ground that the spouses were
living separate and apart after the filing of a petition for divorce without
having reconciled, the judgment shall be effective retroactively to the
date the original petition for divorce was filed, without prejudice to
rights validly acquired in the interim between filing of the petition or
motion and rendition of judgment. All subsequent pleadings or motions involving
matters incidental to the divorce must be filed in the first filed suit.
Art. 2375.
Case Law:
The community property settlement agreement is in authentic form
when it has been executed before a notary public and two witnesses in conformity
with La.Civ. Code art. 1833. Therefore, under La.Civ. Code art. 1835 the
document is full proof of the agreement between the contracting parties.
Courts are bound to give legal effect to such written contracts according
to the true intent of the parties, and this intent is to be determined
by the words of the contract when they are clear, explicit, and lead to
no absurd consequences. Oberfell v. Oberfell, 516 So.2d 424 (La.App.
1st Cir. 1987). The meaning and intent of the parties to a written contract
must be sought within the four corners of the instrument and cannot be
explained or contradicted by parol evidence. La.Civ. Code art. 1848; Oberfell
v. Oberfell, 516 So.2d 424 (La.App. 1st Cir. 1987). However,
when the terms of a contract are susceptible to more than one meaning,
or there is uncertainty or ambiguity as to its provisions, or the intent
of the parties cannot be ascertained from the language, parol evidence
is admissible to clarify the ambiguity or show the intention of the parties.
Hebert
v. Neyrey, 432 So.2d 396 (La.App. 1st Cir. 1983), modified, 445 So.2d
1165 (La. 1984).
BUT, in cases where the terms of the community property settlement
agreement do not itemize the specific property to be partitioned, this
uncertainty regarding the inclusion of items, the trial judge may properly
admitt parol evidence to determine whatitems the parties intended to divide.
McCARROLL
v. McCARROLL, 95 1972 (La.App. 1 Cir. 6/28/96); 680 So.2d 681
Lousiana, being a community property state, has rules and obligations
which may be used to rescinf a voluntary community property settlement
agreement where the shares are legally sufficiently disproportionate to
trigger the law of "lesion" and give the party receiving the smaller share
a right of action to reform the agreement. This right hinges on the
"fair market value" of the "immovable" property (real estate, etc) at the
time the agreement was reached between the parties. King v. King,
493 So.2d 679 (La.App. 2d Cir.), writ denied, 497 So.2d 316 (La. 1986).
A party seeking to rescind a community partition [property agreement]
for lesion must prove "by strong and convincing evidence" the value of
the community estate at the time of the settlement; and the value actually
received from any conversion or transfer of community assets. Ozane
v. Ozane, 392 So.2d 774 (La.App. 3rd Cir. 1980)
