Louisiana standard of review for post nuptial agreements

NEW ORLEANS — The Louisiana Supreme Court has determined that there is a time-related element involved in the ratification of prenuptial agreements.

In a decision filed on May 3, Justice Marcus Clark ruled that under Louisiana Civil Code Article 2331, proper acknowledgment of the parties’ signatures on the prenuptial agreement is required and the failure to make such acknowledgments prior to the marriage invalidates the agreement.

The plaintiff in the case, Danielle Deon Dickerson Acurio married Dr. Michael Thomas Acurio in 1998, but the couple divorced in 2000. Two years later, in 2002, the couple married again, but this time entered into a prenuptial agreement.

“The document was signed by the parties before one witness and a notary,” Clark said in the decision. “It is undisputed that the agreement was not executed by authentic act. Also, the agreement did not contain an acknowledgment of the signature of either party.”

When the couple filed for divorce a second time, Cage sought to exclude the agreement “for failure to comply with the form requirements of La. Civ. Code Art. 2331,” according to the decision.

“The dispute here arises because Louisiana law erects greater procedural hurdles for marital agreements undertaken during a marriage than before a marriage,” David D. Meyer, law professor and dean of Tulane University Law School, told the Louisiana Record. “Agreements undertaken during a marriage require court review to ensure that the terms are consistent with the spouses’ ‘best interests,’ a safeguard not required of pre-marital agreements.”

According to Clark’s written decision, the defendant argued “that acknowledgment has no temporal requirement and can occur at any time.”

The plaintiff argued, however, that “If spouses fail to enter into a prenuptial agreement before the marriage, La. Civ. Code Art. 2329 requires them to jointly petition the court and obtain court approval to enter into a matrimonial agreement during marriage.

“According to the plaintiff’s view, if the acknowledgment does not occur prior to the marriage, the agreement is not fully perfected and is, therefore, invalid,” the high court said in its decision. “Thus, court approval would be required to enter into a matrimonial agreement post-nuptially. Reading these two articles jointly, as argued by the plaintiff, creates a temporal requirement for the acknowledgment to occur prior to the marriage.”

Meyer, the law professor, lays this out a little simpler.

“Pre-marital agreements may be validly executed by ‘private signature duly acknowledged by the spouses,’” he said. “The issue in this case is whether an agreement signed before the marriage—but not acknowledged until after the marriage is already underway—should be treated as pre-marital or instead as an agreement made during the marriage, triggering the special protections requiring court review and approval.”

The district court that originally heard the case granted the plaintiff’s motion, having found that the agreement failed to comply with the form requirements, but the appellate court overturned the decision. The Louisiana Supreme Court, however, agreed with the district court, finding that “any acknowledgment that occurred post-nuptially cannot be relied upon to cure a defect in form… An act under private signature must be duly acknowledged prior to the marriage to be fully perfected and given legal effect.”

In reaching its decision, the high court agreed with the plaintiff’s interpretation of the Louisiana Civil Code, but there was more to it.

“The decision explains the outcome, in part, by reference to a public policy disfavoring departures from the community property regime,” Meyer said. “Public policy in other states also reflects wariness toward waivers of marital property rights made during a marriage, but is generally more favorable to premarital contracting.”