Building Enforceable Post-Nuptial Agreements After Marriage
Sept. 15, 2025
A post-nuptial agreement is a legal contract entered into by spouses after marriage to define the division of assets, debts, and other financial matters in the event of separation, divorce, or death.
Unlike prenuptial agreements, which are signed before marriage, post-nuptial agreements are created during the marriage, often to address changing circumstances such as financial shifts, business ventures, or evolving personal priorities.
Louisiana’s unique legal system, rooted in civil law traditions and the Napoleonic Code, imposes specific requirements for post-nuptial agreements to be enforceable.
At Ivy L Graham Attorney at Law L.L.C., we can help explain the legal structure, requirements, considerations, and practical steps for building enforceable post-nuptial agreements in Louisiana, providing a comprehensive guide for couples seeking to protect their interests.
Louisiana’s Laws for a Post-Nuptial Agreement
Louisiana operates under a community property regime, which fundamentally shapes the enforceability of post-nuptial agreements. Under this system, most property acquired during marriage is presumed to be community property, owned equally by both spouses, regardless of who earned or purchased it.
Exceptions include separate property, such as assets acquired before marriage, inheritances, or gifts designated to one spouse. Post-nuptial agreements in Louisiana often aim to modify this default community property regime, allowing spouses to redefine property as separate or allocate financial responsibilities differently.
The Louisiana Civil Code governs post-nuptial agreements, specifically under provisions related to matrimonial regimes (Articles 2325–2376). A matrimonial agreement, which includes post-nuptial agreements, is defined as a contract that establishes or modifies a matrimonial regime. Louisiana recognizes three primary matrimonial regimes:
Community property regime: The default regime where assets and debts acquired during marriage are shared equally.
Separate property regime: Spouses agree to keep their property and debts separate, with no community property.
Hybrid regime: A combination of community and separate property rules tailored to the spouses’ preferences.
Post-nuptial agreements typically seek to establish a separate property regime or modify the community property regime to address specific assets or obligations. However, Louisiana law imposes strict requirements to assure these agreements are enforceable, balancing individual autonomy with protections against coercion or unfairness.
Legal Requirements for Enforceable Post-Nuptial Agreements
To create an enforceable post-nuptial agreement in Louisiana, couples must adhere to the following legal requirements, as outlined in the Louisiana Civil Code and relevant case law:
Judicial Approval or Termination of Community Property Regime
Unlike prenuptial agreements, which can be executed without court involvement before marriage, post-nuptial agreements in Louisiana require either judicial approval or the termination of the community property regime. According to Louisiana Civil Code Article 2329, spouses may enter into a matrimonial agreement during marriage only if:
Judicial approval: The spouses jointly petition the court to approve the agreement. The court will review the agreement to assure it's not contrary to public policy or prejudicial to either party.
Termination of community property: The spouses terminate the community property regime entirely, either through a judicially approved agreement or a complete separation of property.
This requirement reflects Louisiana’s protective stance toward the community property system, making sure that modifications are deliberate and fair.
Voluntary Execution
Both spouses must enter the agreement voluntarily, free from duress, coercion, or undue influence. Courts closely scrutinize the circumstances surrounding the agreement’s execution to confirm that both parties acted willingly. For example, a spouse who signs under threat of divorce or financial ruin may later challenge the agreement’s validity.
Full Financial Disclosure
Transparency is critical. Both spouses must fully disclose their assets, liabilities, and financial circumstances before signing the agreement. Failure to provide complete and accurate financial information can render the agreement unenforceable, as it undermines informed consent. Courts may invalidate an agreement if one spouse concealed significant assets or debts.
Fairness and Equity
The agreement must be fair and not unconscionable. While Louisiana law allows spouses to customize their financial arrangements, courts may reject agreements that are grossly one-sided or leave one spouse in financial distress.
For instance, an agreement that allocates all marital assets to one spouse while leaving the other with significant debts may be deemed inequitable.
Written Form and Notarization
A post-nuptial agreement must be in writing and signed by both spouses. It must also be notarized and executed in the presence of two witnesses, as required for authentic acts under Louisiana law (Civil Code Article 1835). This formality assures the agreement’s authenticity and reduces the risk of disputes over its validity.
Compliance with Public Policy
The agreement mustn’t violate Louisiana’s public policy. For example, provisions that waive child support obligations or attempt to regulate personal behavior (e.g., fidelity clauses) are generally unenforceable, as they conflict with the state’s interest in protecting children and individual autonomy.
Practical Steps for Creating a Post-Nuptial Agreement
Crafting an enforceable post-nuptial agreement in Louisiana requires careful planning and adherence to legal protocols. Below are practical steps to guide couples through the process:
Step 1: Define the Purpose and Scope
Couples should clearly articulate the purpose of the post-nuptial agreement. Common reasons include:
Protecting separate property: Designating certain assets (e.g., a family business, inheritance, or pre-marital property) as separate to exclude them from community property.
Debt allocation: Specifying responsibility for debts, particularly if one spouse has incurred significant liabilities.
Financial planning: Addressing changes in financial circumstances, such as a new business venture, inheritance, or career change.
Estate planning: Clarifying asset distribution in the event of death, especially in blended families with children from prior relationships.
Defining the scope confirms the agreement addresses specific needs without overreaching into unenforceable areas.
Step 2: Consult Separate Attorneys
Each spouse should retain independent legal counsel to assure their interests are protected. An attorney familiar with Louisiana family law can:
Explain the legal implications of modifying the matrimonial regime.
Draft the agreement to comply with state requirements.
Advise on potential challenges to enforceability.
A separate attorney also reduces the risk of coercion claims, as each spouse receives impartial guidance. Ivy L Graham Attorney at Law can assist with your case.
Step 3: Compile Financial Information
Both spouses must gather and disclose comprehensive financial information, including:
Assets (e.g., real estate, bank accounts, investments, retirement accounts).
Liabilities (e.g., mortgages, credit card debt, loans).
Income sources and projections.
Business interests or intellectual property.
This information should be documented and shared with each attorney to assure transparency.
Step 4: Draft the Agreement
The agreement should include the following key provisions:
Identification of parties: Full names and acknowledgment of the marriage.
Purpose statement: A brief explanation of the agreement’s intent.
Property division: Clear designation of assets and debts as community or separate property.
Spousal support: Terms for alimony or spousal support, if applicable, in the event of divorce.
Estate planning provisions: Instructions for asset distribution upon death, if desired.
Termination clause: Conditions under which the agreement may be modified or terminated.
Governing law: Confirmation that Louisiana law governs the agreement.
The agreement should be written in clear, unambiguous language to minimize disputes.
Step 5: Obtain Judicial Approval
If the agreement modifies the community property regime without terminating it, the spouses must file a joint petition with the appropriate Louisiana district court. The petition should include:
A copy of the proposed post-nuptial agreement.
A statement explaining why the agreement serves the best interests of both parties.
Evidence of full financial disclosure.
The court will review the agreement for fairness and compliance with public policy before granting approval.
Step 6: Execute and Notarize
Once drafted (and approved by the court, if required), the agreement must be signed by both spouses in the presence of a notary public and two witnesses. This step formalizes the document as an authentic act under Louisiana law.
Step 7: Record the Agreement
To assure enforceability, particularly for real estate transactions, the agreement should be recorded in the public records of the parish where the spouses reside or own property. Recording provides notice to third parties, such as creditors or title companies, of the modified matrimonial regime.
Common Challenges and Pitfalls
Creating an enforceable post-nuptial agreement in Louisiana isn't without challenges. Below are common issues and strategies to avoid them:
Lack of Judicial Approval
Failing to obtain court approval for agreements that modify the community property regime is a frequent cause of unenforceability. Couples should work with their attorney to file the necessary petitions and assure compliance with Article 2329.
Coercion or Duress
If one spouse feels pressured to sign, the agreement may be challenged. To mitigate this risk, both spouses should have independent legal representation and ample time to review the agreement before signing.
Incomplete Disclosure
Concealing assets or debts can invalidate the agreement. Couples should provide detailed financial documentation and consider attaching schedules of assets and liabilities to the agreement.
Unfair Provisions
Agreements that disproportionately favor one spouse may be struck down as unconscionable. The attorney should review the agreement to assure it balances both parties’ interests.
Ambiguous Language
Vague or poorly drafted provisions can lead to disputes. The agreement should use precise language and clearly define terms, such as which assets are considered separate or community property.
Contact a Marital Agreement Lawyer Today
Building an enforceable post-nuptial agreement in Louisiana requires careful adherence to the state’s civil law structure, particularly its community property rules and judicial oversight requirements.
By making sure of voluntary execution, full financial disclosure, fairness, and proper formalities, couples can create agreements that protect their financial interests and provide clarity in their marriage.
Consulting an experienced family law attorney, obtaining judicial approval when necessary, and recording the agreement are critical steps to assure enforceability. While post-nuptial agreements offer significant benefits, couples must approach the process with transparency and mutual respect to achieve their intended outcomes without undermining their relationship.
By following these guidelines, spouses in Louisiana can craft robust post-nuptial agreements tailored to their unique circumstances. We serve residents in Livingston, Colyell, Holden, and Albany. When you’re creating a marital agreement, reach out to our staff at Ivy L Graham Attorney at Law L.L.C., in Denham Springs, Louisiana, for legal assistance today.