Is a Postmarital Agreement in Your Best Interest? Why Louisiana Civil Code Article 2329 Should Let You Decide

• Author: Christopher Kirt Ulfers
• Position: J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1399-1435

Is a Postmarital Agreement in Your Best Interest?

Why Louisiana Civil Code Article 2329 Should Let

You Decide

INTRODUCTION

The institution of marriage is changing. Over the last few

decades, the United States has witnessed a persistent decrease in

the number of individuals who choose to get married.1 In fact, the

marriage rate has been in “steady decline since the 1970s,” and

researchers currently report that the marriage rate has dropped to

an all-time low.2 The public opinion of marriage has likewise taken

a significant downturn.3 Studies show that Americans from all

social and educational circles hold a generally unfavorable view of

marriage as an institution.4 Overall, there seems to be a growing

sentiment across the country that marriage is a hassle and is simply

unnecessary.5

Multiple factors are likely responsible for the evolution of

marriage into a perceived voluntary, unnecessary institution in the

eyes of modern day society.

6 For example, alternative living

arrangements are more socially acceptable today than they were in

the past.7 Now more than ever, individuals feel comfortable living

with a partner before marriage or even living as a single parent.8

Therefore, couples may feel as if they have more habitational

Copyright 2015, by CHRISTOPHER K. ULFERS.

1. Megan Gannon, US Marriage Rate Drops to New Low, LIVESCIENCE

(July 19, 2013, 12:57 PM), http://www.livescience.com/38308-us-marriage-rate-

new-low.html, archived at http://perma.cc/H2BH-WNHX.

2. Id.

3. Step hanie Pappas, Re cord Number of Americans Are Unmarried,

LIVESCIENCE (Dec. 14, 2011, 8:11 AM), http://www.livescience.com/17462-re

cord-number-americans-unmarried.html, archived at http://per ma.cc/NS5S-

4MDU.

4. Id.

5. See Barbara A. Atwood & Brian H. Bix, A New Uniform Law for

Premarital and Marital Agreements, 46 FAM. L.Q. 313, 317 (2012) [hereinafter

Bix et al.].

6. Some scholars suggest that several factors are responsible for the demise

of marriage, “including a delay in marriage because of economic concerns and

educational pursuits, greater social acceptance of co habitation and parenthood

outside of marriage, and arguably a growing sense that marriage is unnecessary.”

Id. See also Stephanie Hallett, Marriage Rate in America Drop s Drastically,

HUFFPOST WEDDINGS (Dec. 14, 2011, 5:19 PM), http://www.huffingtonpost

.com/2011/12/14/marriage-rates-in-america_n_1147290.html, archived at http://per

ma.cc/6TD4-ZE44.

7. See Hallett, supra note 6; see also Bix et al., supra note 5, at 317.

8. See Hallett, supra note 6; see also Bix et al., supra note 5, at 317.

1400 LOUISIANA LAW REVIEW [Vol. 75

options than were available in the past, causing beliefs that

marriage is required before cohabitation to essentially fall by the

wayside. Another factor is that some individuals postpone

marriage until they complete their education and establish a

career.9 Understanding potential economic concerns, many

Americans believe that it is important to be financially stable

before entering into a matrimonial union.10 For example, couples

often choose to postpone marital vows until they are better able to

support families and afford the inevitable, inherent costs of

marriage.11

Furthermore, husbands and wives are much more equal to one

another in today’s world than they were in the past.12 For example,

the gender roles that once defined marriages have largely

disappeared.13 Wives are no longer expected to function as

homemakers, and it is now increasingly common to find dual-

income households and wives with full-time jobs.14 However, the

law governing marital relationships has not exhibited a similar

equality-driven trend.15 Rather, the legal institution continues to

administer marriage with outdated policies and antiquated

perceptions, contributing to the general distaste for the institution

among prospective couples.16

In Louisiana, Civil Code article 2329 is a prime example of

marital law that has failed to adapt to the changing reality of

marriage.17 As the preeminent marital contracting law in Louisiana,

article 2329 governs the implementation and modification of marital

agreements both prior to and during marriage.18 However, article

9. See Hallett, supra note 6; see also Bix et al., supra note 5, at 317.

10. See generally Barbara A. Atwood, Marital Contracts and the Meaning

of Marriage, 54 ARIZ. L. REV. 11, 17–19 (2012).

11. See Hallett, supra note 6; see also Bix et al., supra note 5, at 317.

12. See Lucy A. Hawke, Gender Roles within American Marriage: Are

They Really Changing?, 5 ESSAI 70, 74 (2007), available at http://dc

.cod.edu/cgi/viewcontent.cgi?article=1023&context=essai, archived at http://per

ma.cc/6DTM-YL4X; Elizabeth R. Carter, Louisiana Prenuptial Agreements:

Issues for Contemporary Spouses, 42 ANN. EST. PLAN. SEMINAR 1, 5 (2012),

available at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=2169991, archived

at https://perma.cc/456Z-LWWX?type=pdf; Bix et al., supra note 5, at 316.

13. See generally Hawke, supra note 12.

14. See id. at 73–74.

15. See generally Sean Hannon Williams, Postnuptial Agreements, 2007

WIS. L. REV. 827, 833 (2007).

16. See id. at 829–31; see generally Hawke, supra note 12.

17. LA. CIV. CODE art. 2329 (2015).

18. For the purposes of this Comment, marital agreements executed prior to

marriage are referred to as “premarital agreements,” and marital agreements

executed or modified during marriage are referred to as “postmarital agreements.”

If discussing the agreements in general, the author uses the ter m marital

2015] COMMENT 1401

2329 proves to be rather complicated for spouses attempting to

execute or modify postmarital agreements during marriage.19

Before instituting or altering such an agreement, the parties must

petition a court and ask a judge to determine whether the parties

understand the proposed change and whether it is truly in their best

interests to make such a change.20 Therefore, the decision is

effectively taken out of the hands of the parties and given to a

judge, allowing an outsider to determine what is in the best

interests of the married couple.21 Consequently, spouses are unable

to easily and efficiently alter their marital agreement during

marriage, having to go to court to ask a judge for permission

instead. Although a judge may agree with the spouses that a

modification is in order, not every case is that simple. Married

couples in Louisiana are being forced to submit to the outside

judgment of third parties when contracting postmaritally, yet

today’s couples are more than capable of making the unique

determination as to what is in their best interests.

Moreover, article 2329 employs several exemptions to the

court-approval requirement, introducing inconsistency and

confusion into the marital agreement arena. For example, if

spouses were to modify their premarital agreement during their

marriage in an attempt to switch from a separate property regime

to the default community property regime, they would not be

required to fulfill the court-approval requirement.22 In addition, if

spouses had married outside of Louisiana and subsequently moved

into the state, they could implement a postmarital agreement within

one year of relocating without having to obtain court approval.23

These exemptions, along with a few others, illustrate the

inconsistent and arbitrary nature of article 2329’s court-approval

requirement, calling into question the article’s effectiveness as a

whole.

agreements. Some jurisdictions, however, refer to these agreements as prenuptial

agreements and postnuptial agreements, respectively. The terms prenuptial and

postnuptial are largely foreign to Louisiana matrimonial regime law, with the

Legislature and courts opting to refer to such agreements simply as marital

agreements. See id.

19. See generally id.

20. Id.

21. Despite article 2329’s use of an outsider’s decision-making in the

marital contracting process, marriage is generally intended to be a private

contractual matter between the involved parties. See Williams, supra note 15, at

833.

22. See LA. CIV. CODE art. 2329 (2015).

23. Id.