Attorney at Law, Shreveport, Louisiana; Adjunct Professor, Paul M. Hebert Law Center, Louisiana State University, Baton Rouge, Louisiana, teaching Matrimonial Regimes; Member of Persons Committee and Council, Louisiana State Law Institute.
This article is a sequel to two previous law review articles of the same title. See 60 LA. L. REV. 405 (2000), and 59 LA. L. REV. 465 (1999).
The important distinction between a matrimonial agreement and other types of interspousal contracts continues to elude some attorneys and courts.
In Vogt v. Vogt, a former wife filed an action styled "Rule to Show Cause To Enforce Support Provisions of Matrimonial Agreement."1 The agreement was executed prior to marriage and stated that the parties elected to be governed by Louisiana community property law.2 It contained provisions stipulating the amount of alimony that the husband would pay to the wife in the event of divorce, provided that she had not committed adultery, as well as the husband's obligation to maintain a life insurance policy in her favor as long as the alimony obligation existed.3 The former husband contended that the agreement was not a valid matrimonial agreement under Louisiana Civil Code article 2328.4 The court correctly held that the agreement was an antenuptial contract not contemplated by that article.5 It also correctly held that, although the document was titled "Matrimonial Agreement," the title affixed to a document does not, of itself, control its character (which, instead, is determined by examining the entire writing).6 The court Page 74 then added, "However, it is a matrimonial agreement permitted under Louisiana Civil Code article 2329."7
The agreement was not a matrimonial agreement at all. A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime.8 This agreement did none of those things. Alimony is not a rule of any type of matrimonial regime, whether a legal regime, a separation of property regime, a contractual regime, or a regime that is partly legal and partly contractual.9 The agreement did not change or otherwise affect the legal regime that was to exist between the parties during their marriage. Particularly egregious is the suggestion that there are two types of matrimonial agreements, one permitted by Louisiana Civil Code article 2328 and the other by article 2329. There is only one type of interspousal contract that is classified as a matrimonial agreement, and it is defined in article 2328. Article 2329 does not create a different type of matrimonial agreement. It defines the permitted limits on the objects of a matrimonial agreement and the form requirements for a matrimonial agreement if confected during the marriage of the parties. The matrimonial agreement referred to in article 2329 is the one defined in article 2328.
Two Louisiana Third Circuit Court of Appeal decisions correctly distinguished between a matrimonial agreement and other types of interspousal contracts.10 In Pelafigue v. Sudduth, the court correctly held that an agreement entered into during marriage for the building of a house, which provided for the contributions of money and labor for its construction and its disposition upon divorce of the parties, was not a matrimonial agreement.11 The contract, although dealing with an asset to be acquired in the future, concerned only the construction of a house, options granted to the parties to purchase the house upon its completion, and its Page 75 valuation, and not the classification of that asset.12 Thus, it did not modify any of the rules of a legal regime. Hence, the agreement was not a matrimonial agreement requiring dual judicial findings under article 2329 for its validity.13
In Guidry v. Guidry, an attorney and his wife entered into a "Shareholders Agreement" and a "Subscription Agreement" with a law firm in which the husband was to become a shareholder.14
The agreements fixed the value of the shares of stock to be issued to the husband, in the event of a divorce between the parties, and the wife signed the agreements.15 In the subsequent divorce proceedings, the wife contended that these agreements were matrimonial agreements and that they were void for non- compliance with Louisiana Civil Code article 2329, and the trial court held the agreements to be matrimonial agreements subject to the dual judicial findings requirements of that article.16 Reversing, the appellate court held that the agreements were not matrimonial agreements because they did not alter the classification of the shares of stock to be acquired by the husband as community property, but simply set forth a procedure to be followed and a method of evaluation of community stock in the event of a divorce.17 The analysis and decision are correct.
A previous third circuit case, Boudreaux v. Boudreaux, incorrectly held that an agreement between spouses entered into during a pending divorce suit that provided that the wife could live in the family home as long as she remained single and which provided for contingencies of remarriage, etc., was a matrimonial agreement subject to the Louisiana Civil Code article 2329 dual judicial findings requirement.18 Neither Pelafigue nor Guidry mentions Boudreaux.
The failure to distinguish between a matrimonial agreement and other types of interspousal agreements probably is the result of Page 76 not understanding the restrictive nature of a matrimonial agreement. In one of the few commentaries that have defined "matrimonial agreement," Professors Spaht and Hargrave explain: "[A matrimonial agreement] is the kind of agreement that affects the classification and management of future acquisitions that are unique to the matrimonial agreements. Matrimonial agreements 'contemplate an ongoing regulation of property as it comes into existence.'"19
Not all agreements between spouses affecting future property are matrimonial agreements, however. As Professors Spaht and Hargrave carefully point out, it is only an agreement which affects "the classification and management of future acquisitions" that is a matrimonial agreement.20 Although an agreement may have as its object future acquisitions, unless the agreement affects the classification or management of that future property, it is not a matrimonial agreement.
The writer has defined a matrimonial agreement as follows:
All agreements entered into between married persons are not matrimonial agreements. The latter are a particular type of agreement, defined by the subject matter [object] of the agreement.
The basic characteristic that distinguishes a matrimonial agreement from other types of contracts entered into between spouses or between persons contemplating marriage is that a matrimonial agreement contracts with reference to the property regime that exists or will exist between them during the marriage. A property regime is a system of principles and rules that govern the ownership and management of the property of spouses during marriage, both as between themselves and towards third persons.
The object of a matrimonial agreement is these governing principles and rules. If the agreement modifies any of the Page 77 principles or rules of a particular regime, or one system of principles or rules is substituted for another (one regime for another) in whole or in part, the agreement is a matrimonial agreement. Spouses are at liberty, however, to enter into a myriad of other contracts or agreements between themselves before or during marriage which are not matrimonial agreements. For convenience, those agreements between spouses that are not matrimonial agreements have been denominated as "interspousal contracts." These types of contracts between spouses have no special form, court approval, or recordation requirements, as do matrimonial agreements. They are subject only to the general rules governing the proof of obligations and the special rules regulating the proof of some particular types of obligations.21
When spouses contract with respect to presently owned community property, they do not modify any of the governing rules and principles of the legal regime classifying property as community or separate.22 In the legal regime, property is classified as community or separate property (or partially community and partially separate in the case of incorporeal movables) at the moment of acquisition by application of the rules and principles governing the legal regime.23 Likewise, if the spouses contract with reference to future property in a manner that does not affect any of the classification rules, the management rules, the reimbursement rules, and other rules of their matrimonial regime, that agreement is not a matrimonial agreement.24 Page 78
Spouses may agree between themselves on the classification of a particular item of property at the time of its acquisition.25 The spouses may also change the classification after its acquisition.26
Neither act is a matrimonial agreement, as neither terminates the legal regime nor modifies any of the rules of their matrimonial regime.
The failure to distinguish between a matrimonial agreement and other types of interspousal contracts can have significant consequences. Matrimonial agreements, whether executed prior to marriage or during marriage, have special requirements not...