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

Louisiana Law Review Louisiana Law Review

Volume 75

Number 4

Summer 2015

Article 16

5-15-2015

Is a Postmarital Agreement in Your Best Interest? Why Louisiana Is a Postmarital Agreement in Your Best Interest? Why Louisiana

Civil Code Article 2329 Should Let You Decide Civil Code Article 2329 Should Let You Decide

Christopher K. Ulfers

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Christopher K. Ulfers,

Is a Postmarital Agreement in Your Best Interest? Why Louisiana Civil Code Article

2329 Should Let You Decide

, 75 La. L. Rev. (2015)

Available at: https://digitalcommons.law.lsu.edu/lalrev/vol75/iss4/16

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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

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. Stephanie Pappas, Record Number of Americans Are Unmarried,

L

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

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

4MDU.

4. Id.

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

Premarital and Marital Agreements, 46 F

AM. 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 cohabitation and parenthood

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

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

H

UFFPOST 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 A

NN. 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

W

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

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

17. L

A. 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 term 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 L

A. CIV. CODE art. 2329 (2015).

23. Id.

1402 LOUISIANA LAW REVIEW [Vol. 75

Overall, the court-approval requirement of article 2329 is

outdated and unnecessary, signaling the need for a revision in

accordance with the modern aspects of marriage and the current

landscape of the marital institution. Due to the declining marriage

rate across the nation,

24

the outdated and inconsistent legislative

justifications behind article 2329,

25

and a general trend toward

freedom of contract,

26

article 2329 should be improved to allow

flexibility and uniformity in the realm of marital contracting. In

fact, the Uniform Law Commission recently passed the Uniform

Premarital and Marital Agreements Act, legislation designed to

update and provide equality in the laws governing premarital and

postmarital agreements.

27

This piece of model legislation serves as

a useful example for the Louisiana Legislature to follow in

updating the state’s marital agreement law to allow spouses the

freedom to structure their marriages on their own terms. By

relaxing some of the more stringent requirements associated with

marriage, the institution should become more appealing to a wider

range of people. Although marital agreements likely require a

watchful eye and certain procedural safeguards, the current version

of article 2329 is not the answer.

Part I of this Comment offers a historical analysis of marriage,

marital contracting in general, and the evolution of marital

contracting laws in Louisiana, providing insight into the changing

nature of the institution and how such evolution will likely

continue. Next, Part II outlines the specific justifications for

revising article 2329, offering unique theories as to why the article

no longer makes sense in the modern landscape of marriage.

Shifting to a study of the differing approaches to the regulation of

marital agreements, Part III analyzes how marital contracting is

effectively governed in other United States jurisdictions. Lastly,

Part IV offers two alternative options that Louisiana could utilize

to revise article 2329 and effectively adapt its marital contracting

policies to the modern world. As this Comment illustrates, article

2329 is a relic of the past, inefficiently governing the ever-

changing world of marriage and subjecting its participants to

unnecessary burdens. The time is now to revise article 2329 and

position the marital institution for a thriving future.

24. See infra Part I.

25. See infra Part II.

26. See infra Part II.

27. U

NIF. PREMARITAL & MARITAL AGREEMENTS ACT (2012).

2015] COMMENT 1403

I. A HISTORICAL PERSPECTIVE: MARRIAGE THEORY

AND

ARTICLE 2329

As the institution of marriage has evolved over time, marital

agreements have slowly become more important and widespread,

and the modern-day conceptions of marriage have also morphed

into a new phenomenon.

28

Overall, marriage is a far cry from a

static institution, but the laws employed to govern marriage have

not evolved accordingly.

29

A. Marriage Theory: A History of Marriage and Marital

Agreement Philosophy

Until the 18th century, marriages commonly functioned as

products of arrangement.

30

Families and social units historically

coordinated and planned marriages for prospective couples, with

religious and social norms serving as the driving considerations.

31

In essence, marriage formerly operated as a mechanism by which

families came together for “inheritance, property control, and other

economic or political reasons.”

32

Love-based marriage is of “relatively recent vintage.”

33

Ideally,

prospective couples now engage in lasting, meaningful courtships

prior to marriage in order to discern their true feelings.

34

However,

28. Katherine Stoner, Prenuptial Agreements – An Overview, NOLO: LAW

FOR

ALL, http://www.nolo.com/legal-encyclopedia/prenuptial-agreements-over

view-29569.html, archived at http://perma.cc/Y5BE-WAJ9 (last visited Feb. 5,

2015). Today, prospective couples no longer conceptualize marriage with the

traditional ideals that once characterized the institution. Id. Rather, marriage is

ultimately viewed as means to an end, rather than an end in itself. See id.

29. See generally Atwood, supra note 10, at 17.

30. Id. at 16–17 (citing S

TEPHANIE COONTZ, MARRIAGE, A HISTORY: FROM

OBEDIENCE TO INTIMACY OR HOW LOVE CONQUERED MARRIAGE 24–31 (2005)).

See also Eric Rasmusen & Jeffrey Evans Stake, Lifting the Veil of Ignorance:

Personalizing the Marriage Contract, 73 I

ND. L.J. 453 (1998). Arranged

marriages were very common until the 18th century. Shamita Das Dasgupta,

Arranged Marriages, in 1 E

NCYCLOPEDIA OF GENDER AND SOCIETY 40–42 (Jodi

O’Brien ed., 2008).

31. See Rasmusen et al., supra note 30, at 500–01; Atwood, supra note 10,

at 16–17.

32. Atwood, supra note 10, at 16−17.

33. Id. at 17. In other words, marriage has not always been a product of love

and affection. Id. In fact, in the overall scheme of marital history, love has only

been a driving force behind marriage for a relatively short period of time. Id.

34. See Ted L. Huston & Renate M. Houts, The Psychological Infrastructure

of Courtship and Marriage: The Role of Personality and Compatibility in

Romantic Relationships, in T

HE DEVELOPMENTAL COURSE OF MARRIAGE AND

DYSFUNCTION 114–120 (Thomas N. Bradbury ed., 1998). Although this may not

be true of all marital relationships, the overwhelming majority of lasting

1404 LOUISIANA LAW REVIEW [Vol. 75

“[t]he very features that promised to make marriage such a unique

and treasured personal relationship opened the way for it to

become an optional and fragile one.”

35

The introduction of

personal love and subjective affection into the foundations of

marriage has destabilized the institution; unfortunately, love often

does not last forever in the marriages of today.

36

Also, “the

changing goals of marriage have contributed to its fragility, with

today’s couples viewing marriage as a vehicle for personal

fulfillment and self-realization rather than a commitment for life-

long sharing.”

37

Over time, marriage has become increasingly

unstable, causing many to initially disfavor marital agreements as

mechanisms by which more powerful spouses were able to take

advantage of their comparably fragile counterparts.

38

In fact, for

many years there was a widespread belief that marital agreements

encouraged divorce and manipulated weaker spouses to waive

financial and legal benefits.

39

As marital agreements have become more common, however,

the law has gradually become friendlier towards them across the

country.

40

For example, divorce rates in the United States

increased drastically around the turn of the 21st century,

41

prompting couples to begin planning their futures carefully in an

attempt to avoid the financial difficulties implicated by the division

of marital property.

42

Therefore, in the context of divorce, courts

across the country readily began to favor marital agreements as

fair, equitable mechanisms available to dissolve marriages.

43

Today, in fact, premarital agreements are generally accepted

marriages involve some period of premarital courtship and personal decision-

making. See id.

35. Atwood, supra note 10, at 17 (citing S

TEPHANIE COONTZ, MARRIAGE, A

HISTORY: FROM OBEDIENCE TO INTIMACY OR HOW LOVE CONQUERED

MARRIAGE 5 (2005)).

36. See id.

37. Id.

38. Stoner, supra note 28.

39. Id.

40. Id.

41. See William F. Fraatz, Enforcing Antenuptial Contracts in Minnesota: A

Practice in Search of a Policy Basis in the Wake of McKee-Johnson v. Johnson,

77 M

INN. L. REV. 441, 463–64 (1992).

42. See Allison A. Marston, Planning for Love: The Politics of Prenuptial

Agreements, 49 S

TAN. L. REV. 887, 891 (1997).

43. See id. at 898–99 (noting that courts no longer consider premarital

agreements to be void ab initio but rather are generally enforceable).

2015] COMMENT 1405

throughout the United States.

44

Many courts view such agreements

as “conducive to the welfare of the parties and the marriage

relationship as they tend to prevent strife, secure peace, and adjust,

settle, and generally dispose of rights in property.”

45

Despite the favorable acceptance of marital agreements today,

policymakers, courts, and scholars continue to recognize a

potential for the abuse of such agreements.

46

Such concerns are

founded upon “the intimate relationship of the parties to these

agreements, the underlying caring and nurturing union that is

presumably being contemplated, the fact that children may be

produced of the union, and the significant role the state has in

regulating this relationship and protecting the spouses and

children.”

47

In other words, with the increasingly unpredictable and

emotional nature of marriage, scholars and policymakers recognize

the need to regulate marital agreements, in general, to avoid unjust

contracting and unfair impositions of will.

48

Historically, such an

argument has been founded upon the notion that spouses are not on

a level playing field when it comes to marital bargaining power.

49

Scholars argue that “the bargaining dynamics within an intact

marriage are materially different than the dynamics of premarital

bargaining,” triggering the need for heightened restrictions on

postmarital contracting between spouses.

50

“These differences,

they claim, increase the potential for fraud and deception, often

leaving the spouse with less economic leverage (usually the wife)

with no choice but to sign an agreement presented by the wealthier

spouse (usually the husband).”

51

However, the status of

“bargaining theory” in the realm of marital contracting is largely in

flux, with other scholars beginning to question the validity and

accuracy of heightened scrutiny arguments that are founded upon

the supposed unequal bargaining power within marriages.

52

44. See Gary A. Debele & Susan C. Rhode, Prenuptial Agreements in the

United States, 1 IAML L.J. 1, 2 (2006), available at http://www.iaml.org/

cms_media/files/prenuptial_agreements_in_the_us.pdf, archived at http://perma

.cc/W3R5-8TXS.

45. 5 S

AMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW

OF

CONTRACTS § 11:8, at 553–61 (4th ed. 2009) (footnotes omitted).

46. See, e.g., Debele & Rhode, supra note 44, at 2, 12.

47. Id. at 2.

48. See id.

49. Williams, supra note 15, at 829–30.

50. Id. at 830.

51. Id.

52. See, e.g., id. at 851; see also infra Part II.B.

1406 LOUISIANA LAW REVIEW [Vol. 75

B. Marital Agreements in Louisiana

In general, the State of Louisiana “enjoys a unique historical

acceptance of marriage contracts.”

53

Marriage contracts have been

recognized and “widely accepted” in Louisiana since the 1700s, an

ode to the combined French and Spanish heritage upon which the

Louisiana legal system was founded.

54

When Louisiana eventually

became an independent entity free from European control, it

continued to view premarital contracts favorably and specifically

endorsed such agreements in both the 1808 and the 1870 Civil

Codes.

55

Marital contracts have been expressly approved and

accepted in Louisiana for nearly three centuries, “reflecting a

tenacious legal folkway that stood the test of time, persevered in

adversity, and prevailed over challenge.”

56

1. Pre-Civil Code Article 2329

Enacted in 1979, Civil Code article 2329 currently serves as

the chief marital contracting law in Louisiana; however, the law

was not always detailed and explicit. Historically, Louisiana

allowed parties to enter into premarital agreements but not

postmarital agreements.

57

For example, in January 1879, the

Louisiana Supreme Court offered a glimpse into the application of

pre-article 2329 marital contracting law in Hanley v. Drumm.

58

The Court, faced with a dispute between a decedent’s widow and

the decedent’s estate, considered the validity and effectiveness of a

marital agreement executed prior to marriage.

59

In approving the

marital agreement, the Court recognized that the parties were free to

stipulate as they pleased with respect to property rights, provided

that such stipulations were “not contrary to good morals.”

60

In

addition, the Court addressed the potential modification of an

existing postmarital agreement, noting that “matrimonial agreements

may be altered by consent before, but not after, the marriage.”

61

53. Carter, supra note 12, at 2.

54. Id. (citing Hans W. Baade, Marriage Contracts in French and Spanish

Louisiana: A Study in “Notarial” Jurisprudence, 53 T

UL. L. REV. 1, 92 (1979)).

55. Id.

56. Hans W. Baade, Marriage Contracts in French and Spanish Louisiana:

A Study in “Notarial” Jurisprudence, 53 T

UL. L. REV. 1, 92 (1979).

57. See Hanley v. Drumm, 31 La. Ann. 106, 109 (1879).

58. Id.

59. Id.

60. Id.

61. Id. at 109–10 (“Prior to the marriage, the law treats the intended wife as

sui juris, as a free agent; but after it, it treats her as subject to the power and

authority of the husband, and as no longer able to protect herself. Hence it

2015] COMMENT 1407

Therefore, as the Hanley Court recognized in the late 1870s,

parties were generally free to contract marital agreements prior to

marriage; however, parties were not able to modify such

agreements after their marriages became effective.

62

The Hanley Court’s stance on the modification of marital

agreements serves as a vivid illustration of the historical view that

marriage was once an inherently one-sided relationship.

63

Prior to

the enactment of article 2329, postmarital agreements were

prohibited altogether in Louisiana in an attempt to protect weaker

spouses and guard against spousal overreaching.

64

In fact, Louisiana

has consistently attempted to protect the weaker spouse in

marriages, from its complete bar on postmarital agreements and

modifications in Hanley to the somewhat more lenient restrictions

of the current version of article 2329.

65

2. The Policy and Application of Civil Code Article 2329

Over a century after the Hanley decision, the Louisiana

Legislature passed and enacted Louisiana Civil Code article 2329—

legislation that appears to, at least somewhat, carry on the Hanley

tradition of protecting the weaker spouse. As did the prior law,

article 2329 distinguishes between premarital agreements, on the

one hand, and postmarital agreements, on the other.

66

However,

article 2329 makes a noteworthy change to the law under Hanley

by allowing parties to enter into or modify marital agreements after

marriage, subject to some questionable restrictions.

67

interposes to shield her from impositions and wrong.”). Therefore, the policies

offered by the Hanley court appear to be in line with the legislative goals cited

in support of article 2329. However, these policies and goals are outdated, no

longer warranting the distinctions employed in Hanley and codified in article

2329. See infra Part II.B.

62. See Hanley, 31 La. Ann. at 109.

63. See id. at 108–10. The law reflected an understanding that men were the

more powerful, dominant players in marital relationships. See id.

64. Id. at 109–10 (explaining that the wife is “no longer able to protect

herself” from “the power and authority of the husband” during marriage).

65. Id.; L

A. CIV. CODE art. 2329 (2015).

66. Compare Hanley, 31 La. Ann. at 109–10, with L

A. CIV. CODE art. 2329

(2015).

67. Id. Although parties are able to modify marital agreements after

marriage, the second paragraph of article 2329 imposes strict requirements on

such agreements. For example, article 2329 requires that such an agreement be

in the parties’ best interests. Id. Altering the Louisiana Supreme Court’s prior

determination that marital agreements could not be altered post-marriage

whatsoever, the Legislature made a concise determination to adapt the law to

changing times and allow for such modifications.

1408 LOUISIANA LAW REVIEW [Vol. 75

At its core, Louisiana Civil Code article 2329 is an inconsistent

piece of legislation in the realm of marital contracting.

68

Although

article 2329 allows spouses to contract postmaritally, it does not

treat premarital and postmarital agreements equally. Rather, article

2329 imposes heightened restrictions on marital agreements entered

into or modified during marriage, whereas marital agreements

entered into or modified prior to marriage are not burdened with

such restrictions.

69

Specifically, under article 2329, a married couple

in Louisiana is allowed to enter into a marital agreement that alters

or modifies an existing matrimonial regime only after a “joint

petition and a finding by the court that [the agreement] serves their

best interests and that they understand the governing principles and

rules.”

70

However, if executed prior to marriage, the only statutory

restrictions on marital agreements are that they must not

undermine public policy and must be executed in the appropriate

form.

71

In addition, the Legislature codified, in article 2329, that

spouses are able to “subject themselves to the legal regime by a

matrimonial agreement at anytime without court approval.”

72

Article

2329 also exempts new Louisiana domiciliaries from obtaining court

approval altogether if the postmarital agreement is executed within

the first year after relocating to the state.

73

With specific policy concerns in mind, the Louisiana Legislature

enacted article 2329 in 1979 with the goal “of protecting the less-

worldly spouse and preventing that spouse from entering into

68. See Katherine S. Spaht & Cynthia Samuel, Equal Management

Revisited: 1979 Legislative Modifications of the 1978 Matrimonial Regimes

Law, 40 L

A. L. REV. 83, 91 (1979).

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

70. Id.

71. Id. In general, contracts must be executed within the confines of public

policy. See L

A. CIV. CODE art. 7 (2015). As a noteworthy Louisiana decision

explained, the chief public policy concern in the realm of marital contracting is

the notion that “a husband should support and assist his wife during the

existence of the marriage,” and any contracts providing otherwise will be

deemed null and void. Barber v. Barber, 38 So. 3d 1046, 1049 (La. Ct. App.

2010).

72. L

A. CIV. CODE art. 2329 (2015). In effect, this aspect of article 2329

illustrates the Legislature’s preference for the legal regime of community

property in Louisiana. Spouses wishing to utilize a community property regime

do not need judicial approval, as the Legislature has presumably decided that the

legal regime of community property is naturally in the best interests of the

parties. See id.; Spaht & Samuel, supra note 68, at 91.

73. L

A. CIV. CODE art. 2329 (2015). Although the purpose of this aspect of

article 2329 is not entirely clear, the Legislature appears to desire leniency with

couples unfamiliar to the laws of Louisiana, allowing them to act as if they are

starting anew in the marital agreement realm unbounded by the court-approval

requirement.

2015] COMMENT 1409

disadvantageous agreements that were not fully understood.”

74

Article

2329 functions as a compromise to the strict bar on postmarital

agreements under Hanley, adapting the policy justification of

protecting weaker spouses into a somewhat more lenient

framework.

75

Specifically, through Act 709 of the 1979 session, the

Legislature purported to place “procedural limitations upon the

making or the modification of a matrimonial regime contract during

marriage and [add] limitations on the content of these agreements,

whether executed prior to or during marriage.”

76

As such, the

Legislature defined specific distinctions between premarital and

postmarital contracting requirements in an attempt to satisfy its

concerns and protect women from their historically more powerful

male counterparts.

77

The substantive suggestions and procedural limitations

embodied in article 2329 were recommended to the Legislature by

the Louisiana State Law Institute.

78

Initially, the Law Institute’s

proposal did not include the court-approval requirement, drawing

the ire of some legal observers.

79

For example, the Law Institute was

urged to reconsider its original proposal by Mr. Frank P.

Simoneaux, a concerned member of the Institute, who believed that

“modification of the legal community by a matrimonial agreement

[would] result in many nonworking spouses having little or no

ownership interest in assets or income that would form part of the

community under the legal regime.”

80

Essentially, Mr. Simoneaux

argued that the Law Institute’s original proposal was deficient, as it

did not incorporate adequate procedural protections for disadvantaged

74. Lee Hargrave, Matrimonial Regimes, 54 LA. L. REV. 733, 741 (1994)

(discussing Boyer v. Boyer, 616 So. 2d 730 (La. Ct. App. 1993)).

75. Compare Hanley v. Drumm, 31 La. Ann. 106 (1879), with L

A. CIV.

CODE art. 2329 (2015).

76. Spaht & Samuel, supra note 68, at 90.

77. See supra Part I.B.2. Namely, the Legislature implemented distinctions

between premarital and postmarital contracting requirements by requiring

spouses to obtain judicial approval when attempting to alter marital agreements

after the marriage has taken effect. Spaht & Samuel, supra note 68, at 91; L

A.

C

IV. CODE art. 2329 (2015).

78. Spaht & Samuel, supra note 68, at 90.

79. Id. at 90−91.

80. Id. at 91 (citing Written Motion to Reconsider Previous Council Action

at 2, Submitted by Frank P. Simoneaux; seconded by A.N. Yiannopoulos and

Jack Caldwell (on file with author)). Furthermore, Mr. Simoneaux’s motion

“made clear that [his] concern in allowing spouses to enter into matrimonial

agreements was solely for the welfare of the spouse whose contributions to the

marriage were largely non-economic, and not for the interest of creditors or

forced heirs.” Id. Thus, Mr. Simoneaux’s concern was grounded upon the need

to protect against spousal overreaching. See id.

1410 LOUISIANA LAW REVIEW [Vol. 75

spouses.

81

Despite these concerns, the Law Institute “adhered to its

previous position, the original position of the Law Institute, that

contractual changes in a matrimonial regime during marriage

required no special procedural safeguard.”

82

Thus, the original proposal of the Law Institute was submitted to

the Legislature without any requirement of court approval.

83

However, Mr. Simoneaux’s plea was not forgotten. The court-

approval requirement for spouses entering into or modifying marital

agreements during marriage was added into the legislative bill at the

last minute on the floor of the House of Representatives, and this

version of the bill eventually became law after Senate amendment

and concurrence.

84

Faced with the diverse goals and principles of article 2329, the

following subsections serve to illustrate specific jurisprudential

applications of article 2329 by Louisiana courts. In effect, these

decisions shed some light on how courts apply the complicated

provisions of article 2329, with most courts opting to closely

follow the article’s language and impose the heightened approval

requirements on parties contracting postmaritally.

a. A Basic Jurisprudential Application of Article 2329

As one of the preeminent judicial decisions involving marital

agreements in Louisiana, Boyer v. Boyer offers a noteworthy

illustration of the intricacies and distinctions embodied in article

2329 and how its requirements are applied in real-world

situations.

85

In Boyer, the Louisiana First Circuit Court of Appeal

was tasked with determining whether a marital agreement, entered

into by two spouses during marriage in an attempt to terminate the

legal regime of community property, was valid in accordance with

article 2329.

86

The husband and wife in Boyer executed a “joint

petition for [the] establishment of a separate property regime” as

well as an affidavit stating that they read the agreement,

understood the rules involved, and believed that the agreement was

in their best interests.

87

81. Id.

82. Id. This quote illustrates that the court-approval requirement of article

2329 was not an original aspect of the law from the Law Institute but a late

addition by the Legislature. Id. In fact, the Law Institute initially opted to treat

premarital and postmarital agreements identically. Id.

83. Id.

84. Id.

85. Boyer v. Boyer, 616 So. 2d 730 (La. Ct. App. 1993).

86. Id. at 731.

87. Id. at 731.

2015] COMMENT 1411

In considering this marital agreement, the court noted that the

Boyer agreement satisfied article 2329’s requirements, as the

spouses executed an effective document and a valid affidavit

purporting to understand and agree to the changes.

88

However, in

Boyer, the spouses did not request a hearing in front of the court

regarding their new marital agreement.

89

Nevertheless, the court

applied article 2329 and recognized that its plain language does not

require a physical hearing to take place.

90

The Boyer court

explained that it found “no requirement in article 2329 for a

hearing before the court can grant approval. Certain statutory laws

in Louisiana do require a full hearing before a trial court can make

a decision, but article 2329 is not one of them.”

91

Rather, “it is

within the discretion of the trial court to order a hearing and the

parties may ask for a hearing,” but one is not required.

92

The Boyer decision provides a model benchmark for what is

and is not required to alter or implement a postmarital agreement.

The spouses are not required to actually appear before a court,

although such an option is certainly available.

93

Rather, the

spouses must execute an agreement and convince the court that it

is in their best interests to modify or implement an effective

postmarital regime.

94

Whereas the Boyer decision contemplates article 2329’s

application to the realm of postmarital agreements, the Louisiana

Fifth Circuit Court of Appeal in Muller v. Muller considered its

application to premarital agreements.

95

In Muller, the parties

executed a premarital agreement one day prior to their wedding;

however, a notary did not witness the parties actually sign the

document as required by law.

96

At trial, the wife acknowledged

that the signature on the document was hers, thus bringing into

question whether such an acknowledgement could satisfy the form

requirements that were not fulfilled prior to marriage.

97

Responding

88. Id. at 732–33.

89. Id. at 731.

90. Id. at 733.

91. Id.

92. Id.

93. Id.

94. Id. at 365. See also L

A. CIV. CODE art. 2329 (2015).

95. Muller v. Muller, 72 So. 3d 364, 368 (La. Ct. App. 2011).

96. Id. at 365–66. Louisiana Civil Code article 2331 requires that a

premarital agreement be “made by authentic act or by an act under private

signature duly acknowledged by the spouses.” L

A. CIV. CODE art. 2331 (2015).

In Muller, the wife claimed that the agreement was invalid as it was not

witnessed by anyone and should be set aside for lack of form. Muller, 72 So. 3d

at 365.

97. Muller, 72 So. 3d at 366.

1412 LOUISIANA LAW REVIEW [Vol. 75

in the negative, the court ruled that postmarital acknowledgements of

premarital agreements are bound by the judicial approval dictates of

article 2329 and not the more lenient premarital standards:

98

We hold that a post-nuptial acknowledgement cannot vitiate

the mandate of [Civil Code article 2329] that any matrimonial

agreement entered into during the marriage to modify or

terminate a matrimonial regime must be by joint petition, and

after a finding by the court that the agreement serves the best

interests of the parties.

99

Thus, the Muller decision further emphasizes the sharp line

drawn between the contracting requirements of premarital

agreements and those of postmarital agreements. Despite the fact

that the parties intended to execute a premarital agreement, the

Muller court subjected a postmarital acknowledgment of that

agreement to the heightened restrictions applicable to postmarital

contracts under article 2329.

100

The Muller court did not take

article 2329’s dictates lightly, opting instead to closely mirror its

language and apply its restrictions literally. Essentially, the court

decided that a postmarital recognition of a defective premarital

agreement rendered the entire agreement subject to the postmarital

restrictions embodied in article 2329.

101

Such an application is

harsh for litigants, as they are required to follow article 2329’s

rigorous postmarital regulations even though they did not intend to

implement a postmarital agreement.

b. Article 2329’s Legal Regime Exemption

In Weinstein v. Weinstein, the Louisiana Third Circuit Court of

Appeal discussed a different aspect of article 2329, providing a

glimpse into one of the more controversial aspects of the article.

102

Specifically at issue in Weinstein was the nature of a postmarital

agreement and whether the spouses wished to establish a community

property regime through that agreement.

103

Although the court did

not reach a final decision as to the effectiveness of the agreement,

104

98. Id. at 368.

99. Id.

100. Id.

101. Id.

102. Weinstein v. Weinstein, 62 So. 3d 878, 883–84 (La. Ct. App. 2011).

103. Id. at 883–84.

104. In Weinstein, the Third Circuit considered a postmarital agreement and

the procedural history behind that agreement; however, the court did not rule as

to its effectiveness. Id. at 884. Rather, the court simply ruled on a dismissal

order that a judge had previously issued, finding that order was invalid. Id. at

2015] COMMENT 1413

it did recognize that the spouses intended to implement a community

property regime through their postmarital agreement.

105

In addition,

the court acknowledged that “the law does not require that an

agreement establishing a community property regime be authorized

by a judge, nor does it prohibit its being approved by or

acknowledged in front of a judge.”

106

Therefore, the Weinstein agreement did not require court

approval in order to become effective and binding, an exemption

that seems puzzling to many Louisiana scholars as inconsistent

with the stated goals of article 2329.

107

Scholars argue that spousal

overreaching is just as likely to occur when contracting the

community property regime as it is when attempting to implement

a separate marital property regime.

108

In fact, the more powerful

spouse is just as able to take advantage of the weaker spouse

regardless of the type of regime being implemented.

109

The legal regime exemption evidenced in Weinstein illustrates

how article 2329 presupposes that community property is in the best

interests of the spouses.

110

However, it is easy to imagine a situation

in which community property may not be beneficial or in the best

interests of the spouses;

111

Louisiana even seems to recognize such a

conclusion in the overall scheme of its matrimonial regime law by

884–85. Nevertheless, the Third Circuit did opine on the nature of the agreement

and the applicable aspects of article 2329 that were controlling. Id. at 883–84.

105. Id. at 884.

106. Id.

107. Spaht & Samuel, supra note 68, at 91–92.

108. Regardless of whether or not the parties have married yet, the more

powerful party will have significantly more chips to bargain with when

considering a premarital or postmarital agreement. Id. The establishment of a

marital relationship does little to change the weakened position of a

downtrodden spouse. Id. If one spouse is inherently weaker for whatever reason,

that spouse will remain weaker after the marriage. See id.

109. See id.

110. See A

NDREA CARROLL & RICHARD D. MORENO, MATRIMONIAL

REGIMES § 8.6, in 16 LOUISIANA CIVIL LAW TREATISE 848 (4th ed. 2013). In

other words, by not requiring spouses to obtain court approval when

implementing the legal regime of community property, the law seems to

recognize that the legal regime is naturally in the best interests of Louisiana’s

couples, rendering judicial insight and approval unnecessary. See id.

111. For example, in marriages involving substantial wealth and

wherewithal, community property may not be the best option for the spouses.

See Charlotte K. Goldberg, Opting In, Opting Out: Autonomy in the Community

Property States, 72 L

A. L. REV. 1, 1–2 (2011). Rather, an agreement maintaining

the individual wealth of each party may better meet the needs of the spouses by

allowing them to retain control over their individual patrimony. Id.

1414 LOUISIANA LAW REVIEW [Vol. 75

allowing the parties to establish a separate property regime to

avoid community property altogether.

112

c. Article 2329’s Out-of-State Exemption

The final sentence of article 2329 incorporates another

exemption to the article’s general terms, noting that “[d]uring the

first year after moving into and acquiring a domicile in this state,

spouses may enter into a matrimonial agreement without court

approval.”

113

While considering a broad range of marital legal

issues, the Louisiana Supreme Court interpreted this aspect of

article 2329 in Hand v. Hand.

114

Specifically, the couple in Hand

married in South Carolina, after which one of the spouses relocated

to Morgan City, Louisiana.

115

A divorce followed soon

thereafter.

116

Although the Hand couple did not attempt to execute

a premarital or postmarital agreement,

117

the Court opined on

article 2329 and its exemption from obtaining court approval for

spouses moving into Louisiana.

118

Particularly, the Court

recognized that when both spouses acquire domicile in Louisiana

within the first year after relocating to the state, the spouses do not

need to petition a court to determine whether a postmarital

agreement is in their best interests.

119

Rather, the spouses may

simply execute such an agreement on their own, defining the terms

and conditions of their postmarital agreement without any help or

input from the legal system.

120

Similar to the legal regime exemption explored in Muller, the

out-of-state exemption evidenced in Hand does little to further the

legislative goals behind article 2329.

121

In fact, spousal

overreaching is just as likely to occur in marriages that commence

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

113. Id.

114. Hand v. Hand, 802 So. 2d 560, 561–62 (La. 2001).

115. Id. at 561.

116. Id.

117. The dispute in Hand involved the applicability and availability of the

regime of community property to a married couple when only one spouse was a

Louisiana domiciliary. Id. In reaching the conclusion that both spouses must be

domiciled in Louisiana to obtain community property status, the court

interpreted the use of the terms “spouse” and “spouses” in the various

matrimonial regime Civil Code articles. Id. at 562–63. In fact, the court

determined that article 2329, along with a few others, requires both parties to be

domiciled in the state before the provisions of the law apply. Id. at 566.

118. Id. at 562.

119. Id.

120. Id.

121. Spaht & Samuel, supra note 68, at 91–92.

2015] COMMENT 1415

in other states as it is in those that begin in Louisiana.

122

It is difficult

to imagine why spousal overreaching would be a phenomenon

experienced only in Louisiana, yet this exemption seems to recognize

such a notion by relaxing the marital contracting standards for

marriages instituted elsewhere.

II. A CALL FOR CHANGE: THE JUSTIFICATIONS FOR REVISING

ARTICLE 2329

The marital institution is largely in need of an overhaul.

Prospective spouses are abstaining from marriage like never

before, generating significant consequences for themselves and

society as a whole.

123

In an attempt to right the floundering ship of

marriage, affirmative action should be taken to restore and

modernize the marital institution in accordance with our evolving

society. In Louisiana specifically, Civil Code article 2329 provides

a promising opportunity to begin updating and improving the

status and reputation of marriage within the state. The principles

and theories embodied in article 2329 are problematic as applied to

today’s society, injecting unnecessary inconvenience and

inconsistency into the marital agreement arena. The premarital and

postmarital distinctions within the article make little sense today,

and the potential for abuse of the court-approval requirement is

high.

124

As a whole, Louisiana spouses should have the freedom

and flexibility to structure their marriages on their own terms,

which is not entirely possible under the current version of article

2329. Thus, article 2329 should be revised with an eye on the

future, adapting its outdated provisions to the needs of a changing

world.

A. The Changing Perception of Marriage: A Motivation for

Revision

In the State of Louisiana, as well as in several other states

around the country, flexibility is needed and warranted in the realm

122. See id. at 92.

123. See generally Hallett, supra note 6; see, e.g., Ron Haskins, Marriage on the

Rocks: Economic and Social Consequences for Kids, BROOKINGS (June 26,

2013), http://www.brookings.edu/research/opinions/2013/06/26-marriage-economic-

social-consequences-haskins, archived at http://perma.cc/M4QN-B25M (discussing

the effects of the changing role of marriage on children).

124. See infra Part II.C.

1416 LOUISIANA LAW REVIEW [Vol. 75

of marital contracting.

125

In the words of one scholar, “the law of

marital agreements should be compatible with evolving

understandings of the meaning of marriage, including the rise of

individualized marriage.”

126

Currently, Louisiana Civil Code article

2329 embodies legislative goals that are a product of outdated

reasoning and antiquated perceptions of reality, illustrating the

incompatibility of article 2329 with modern marital principles.

127

With the state of marriage in the United States currently in flux,

outdated laws such as article 2329 serve as inviting opportunities to

begin correcting the flaws and misconceptions soiling the institution

of marriage and its reputation.

As such, the rules and distinctions of article 2329 serve as

unwarranted obstacles to a positive marriage rate for at least two

reasons. First, standards that govern marital agreements and hinder

a couple’s ability to alter the default rules undoubtedly work

against the current trend of private ordering and individualized

marriage structuring.

128

Additionally, marriage standards that are

“heavily laden with mandatory terms may not attract adherents.”

129

For these reasons, as well as several others,

130

the Legislature

should revise article 2329 to better conform to the modern needs

and understandings of marriage. Given the decreasing marriage

rate across the nation, the uniformity and flexibility of marital

contracting laws would serve society well as a step in the right

direction toward encouraging and fostering the institution of

marriage. Scholars have long debated the appropriateness of

distinguishing between premarital and postmarital agreements, and

the inherent distinctions embodied in article 2329 do little to

125. Louisiana is one of several states that imposes heightened restrictions on

postmarital agreements while premarital agreements remain largely unregulated.

See Williams, supra note 15, at 881; see also discussion supra Part I.

126. Atwood, supra note 10, at 16.

127. Louisiana Civil Code article 2329 was enacted to protect weaker

spouses from their more dominant counterparts within the marital relationship, a

goal that is no longer necessary due to the changing landscape of marital life.

See Spaht & Samuel, supra note 68, at 91–92; see discussion supra Part I.

128. Bix et al., supra note 5, at 317. The complexities of modern society and

the growing financial and economic intricacies of relationships have led to an

increase in the use of privately structured marriages. See discussion supra Part

I.A. In other words, marital agreements are more prevalent than ever, and the

outdated requirements of article 2329 are an unnecessary obstacle for couples

opting to marry on their own terms. See discussion supra Part I.A.

129. Atwood, supra note 10, at 16.

130. In addition to the declining marriage rate and the need for flexibility in

the marital institution, article 2329 proves ineffective and inefficient in itself.

See Spaht & Samuel, supra note 68, at 92. Article 2329 is highly inconsistent in

attempting to accomplish its policy objectives, and its requirements are better

suited for a time long ago. See id. at 91–92.

2015] COMMENT 1417

promote the legislative goals cited in support of the law.

131

Therefore, given the unpopularity of marriage in today’s society,

along with the inconsistencies and outdated requirements of article

2329, the marital agreement law in Louisiana is ripe for change.

B. The Shifting Socioeconomic Times: Court Approval Is Outdated

and Unnecessary

Similarly, the policies supporting article 2329’s heightened,

restrictive governance of postmarital agreements are also outdated.

The policy justifications behind article 2329’s enactment are

grounded in the notion that marriages inherently involve disparate

bargaining power and require oversight to guard against spousal

overreaching.

132

However, although the marriages of yesteryear

may have involved spouses with unequal bargaining power and

diverse educational and societal backgrounds,

133

today’s marriage

statistics suggest that such disparity is no longer prevalent.

134

Individuals who enter into marital contracts today are much

more sophisticated and educated, and women consistently find

themselves less disadvantaged as compared to their male

counterparts.

135

This theme of marital equality also holds true in

Louisiana, where women are becoming more involved in the

workforce and are contributing substantially to the financial

stability of their households.

136

In addition to boosting the marital

equality between spouses, these trends suggest that marital

contracts may actually provide women with more “leverage” in the

marital context, a proposition that is entirely different from the

inferior marital standing that was once ascribed to women.

137

Accordingly, “a new era of marriage has arrived—an individual’s

autonomy and right to contract supersede the theory that marriage is

a partnership wherein contracting would require greater

131. See id. at 92.

132. See discussion supra Part I.A.

133. Hawke, supra note 12.

134. See id.; see also Carter, supra note 12.

135. Bix et al., supra note 5, at 316.

136. Steven Ward, Divorce Rate in La. Above Nation’s, T

HE ADVOCATE

(Sept. 6, 2011), http://theadvocate.com/home/771554-79/divorce-rate-in-la.-

above, archived at http://perma.cc/N89B-659J.

137. Bix et al., supra note 5, at 316. As such, women are no longer reliant

upon the protection of favorable marital agreements. See generally id. Rather,

the naturally heightened bargaining power that women, as a whole, possess

today provides adequate protection. See generally id. Therefore, the increased

protection guaranteed by article 2329’s court-approval requirement is no longer

necessary.

1418 LOUISIANA LAW REVIEW [Vol. 75

accountability.”

138

Therefore, the Legislature’s goal of protecting

the less-worldly spouse has essentially been accomplished by the

natural evolution of society, a process through which the less-

worldly spouse has become virtually nonexistent.

139

Thus, article

2329’s postmarital contracting requirements mandating court

approval are currently unnecessary.

Adding to the general ineffectiveness of article 2329’s court-

approval requirement, article 2329 plainly delegates the

determination of whether a postmarital agreement serves a married

couple’s best interests to an impartial, disinterested judge.

140

In

making the best-interest determination, the judge is, ideally,

supposed to consider whether the spouses “understand the

principles and rules governing the matrimonial regime and whether

such a regime serves their best interests.”

141

However, faced with

the personal, unique circumstances of each married couple, a judge

is largely unable to pronounce whether that couple understands the

agreement or whether it fits the couple’s aspirations and

lifestyle.

142

In order to make such a determination, a judge can do

nothing “short of administering an exam to them on the subject.”

143

Overall, a disinterested judge is generally unable to determine

the true best interests of a married couple in an effective manner.

144

Although judges presumably operated as helpful mediators

guarding against spousal abuse in the past, these judicial services

are no longer a necessary component of marital contracting.

Today, statistics indicate that married individuals are more than

able to stand up for themselves within the confines of marriage,

having achieved near-equal levels of education and marital

equality.

145

As such, today’s married couples should have the

freedom to structure their marital agreements as they wish.

138. Stephanie A. Bruno, Note, Insuring the Knot: The Massachusetts

Approach to Postnuptial Agreements, 45 S

UFFOLK U. L. REV. 397, 421 (2012).

139. Although one spouse may have more financial stability than the other,

statistics suggest that spouses are generally on an equal playing field today in

terms of bargaining power and marital control. See Williams, supra note 15, at

851.

140. L

A. CIV. CODE art. 2329 (2015).

141. Spaht & Samuel, supra note 68, at 94.

142. The nature of the best-interest determination is undoubtedly an involved

process, substantially hindering the decision-making abilities of judges and

making an accurate determination that much more difficult to render. See

generally id. at 94–95.

143. Id. at 94.

144. See id. To make an effective determination, a judge must employ

considerable resources and truly understand the spouses’ predicaments and

lifestyles, a feat that is no easy task. See generally id.

145. Hawke, supra note 12. See also Carter, supra note 12.

2015] COMMENT 1419

Although article 2329 is outdated and unnecessary as applied

to the spouses involved in a marital agreement, some may argue

that article 2329 is still needed to protect the spouses’ creditors.

146

However, such an argument is largely unwarranted. The original

proposal of article 2329 offered by the Law Institute in 1979

“made clear that the concern in allowing spouses to enter into

matrimonial agreements was solely for the welfare of the spouse

whose contributions to the marriage were largely non-economic,

and not for the interest of creditors or forced heirs”:

147

Since the judicial inquiry must focus on the best interests of

the spouses, they should not have to prove that no harm

will accrue to their creditors as a result of the proposed

agreement. Creditors, like forced heirs, are protected in

other areas of the law. Available to the creditors are the

same remedies they have against any contract of the debtor,

in particular, the revocatory action, the action in declaration

of simulation, and the oblique action.

148

Therefore, a revision of article 2329 would not significantly

affect the position or status of creditors, as they have a sufficient

number of alternative remedies at their disposal to protect

themselves under the law.

149

Not only are article 2329’s arbitrary

requirements unnecessary as applied to the spouses and

prospective spouses opting to contract marital agreements in

Louisiana, the article’s protections are also immaterial from the

perspective of creditors, and the article should be revised to reflect

this new economic reality of marriage.

C. Problems of Inconsistency: Article 2329’s Exemptions Make

Little Sense

In addition to its outdated reasoning and antiquated policy

rationales, article 2329 is also a highly inconsistent piece of

legislation. Despite the Legislature’s desire to prevent spousal

overreaching by requiring spouses to obtain judicial approval when

contracting postmaritally, the language of article 2329 incorporates

several exemptions from its otherwise strict court-approval

146. See, e.g., Spaht & Samuel, supra note 68, at 91.

147. Id. The quoted language demonstrates that the security of creditors was

not a primary motive in allowing spouses to engage in marital contracts. Thus,

this suggests that abolishing the distinction codified in article 2329 would not be

unfair to creditors. See id.

148. Id. at 98 (citations omitted).

149. Id. at 91, 98.

1420 LOUISIANA LAW REVIEW [Vol. 75

requirement.

150

Specifically, the following individuals are

exempted from obtaining court approval: prospective spouses;

spouses who marry out of state and enter into a marital agreement

within one year of moving to Louisiana; spouses who married and

established the legal regime prior to January 1, 1980; and spouses

who change to the legal regime by marital agreement.

151

However, the legislative goal for which article 2329 was

created, protection of the less-worldly spouse, is hardly served or

advanced by these exemptions. The justification for the enhanced

scrutiny of postmarital agreements is the protection of the less-

worldly spouse, but less-worldly spouses and potential spouses

also engage in the agreements encompassed by the exemptions

without procedural protections.

152

Criticizing the inconsistencies of

article 2329, Professor Katherine Spaht explained why its

exemptions make little sense:

In the situations encompassed by the exemptions,

overreaching by one of the parties is as great a possibility

as in those situations not exempted. The less-worldly party

is not necessarily any better able to defend himself or

herself from a disastrous matrimonial agreement before

getting married than after the ceremony, before having

lived in Louisiana one year than after this period of

residency, or before January 1, 1980 than after that date.

Likewise, a change to the legal regime, which does not

require court approval, may not always be in the interest of

the less-worldly spouse, as when an antenuptial agreement,

carefully planned with the aid of the parents to protect the

less-worldly spouse, is upset by a change to the legal

regime.

153

Thus, one is hard pressed to find a “coherent rationale” for the

court-approval requirement of article 2329 due to its various

exemptions.

154

The exemptions effectively weaken the policy

objectives of article 2329, doing little to prevent spousal overreaching

and failing to fully protect the less-worldly spouse.

155

Article 2329 is

inherently “inconsistent in its attitude toward spousal overreaching,”

150. Id. See supra Part I.B.2; LA. CIV. CODE art. 2329 (2015).

151. L

A. CIV. CODE art. 2329 (2015). The legal regime in Louisiana is one of

community property. See LA. CIV. CODE art. 2327 (2015).

152. See Spaht & Samuel, supra note 68, at 92. Marital agreements have

traditionally been subjected to heightened regulations to equalize the contractual

aptitudes of spouses in marital relationships. Id.

153. Id.

154. C

ARROLL & MORENO, supra note 110.

155. Id.

2015] COMMENT 1421

which is not surprising given the haste with which the requirement

was added into the article during the 1979 legislative session.

156

Furthermore, the plain language of article 2329 does not

require a married couple to seek a full-fledged judicial hearing in

order to obtain court approval of a postmarital agreement,

evidencing another inefficiency in article 2329’s application.

157

In

fact, the couple does not even need to personally appear before the

judge.

158

Conceivably, if the Legislature intended to protect weaker

spouses and prevent spousal overreaching, a mandatory hearing

would have been an appropriate procedural protection to

implement. Without such a hearing, the more powerful spouse is in

a position to execute a forged agreement or impose his will on the

other spouse to sign an unfavorable affidavit, ultimately negating

the stated goals of article 2329.

Although spousal overreaching is not a significant concern in

today’s society, the judiciary has nevertheless dropped the

figurative ball in interpreting article 2329 by not requiring spouses

to appear before the court. As such, spouses have the opportunity

to “overreach” article 2329’s protections aimed at preventing that

very activity. Today, the potential for spousal overreaching is not

as amplified as it was in the past, yet the lack of a mandatory

hearing in article 2329 calls the reasoning of the Legislature into

question and reveals yet another problem with article 2329’s

procedural protections.

In addition, spouses are able to circumvent the court-approval

requirements of article 2329 with some creative contracting

techniques. “Spouses who believe that the requirement of judicial

approval of all postnuptial matrimonial agreements is an

undesirable intrusion into their private affairs may attempt to

minimize judicial involvement by initially contracting a regime

containing a mechanism to change it.”

159

For example, spouses

could “include in their original agreement a ‘termination’ provision

and an alternate regime to be adopted upon the lapse of the original

regime.”

160

Legally justified as either a conditional obligation or an

156. Spaht & Samuel, supra note 68, at 91 (“Since the requirement of court

approval went in and out of the bill as if caught in a revolving door, it is not

surprising that the new legislation is inconsistent in its attitude toward spousal

overreaching.”).

157. L

A. CIV. CODE art. 2329 (2015). See also Boyer v. Boyer, 616 So. 2d

730, 734 (La. Ct. App. 1993).

158. L

A. CIV. CODE art. 2329 (2015). See also Hargrave, supra note 74, at

741; Boyer, 616 So. 2d at 731.

159. Laura Schofield Bailey, Note, Marital Property Agreements—Being

Creative With The New Legislation, 43 L

A. L. REV. 159, 164 (1982).

160. Id.

1422 LOUISIANA LAW REVIEW [Vol. 75

optional, alternative regime,

161

these contractual mechanisms and

spouses’ use of these mechanisms are ultimately subverting the

goals and requirements of article 2329. Therefore, the holes in

article 2329’s proverbial net extend far and wide, providing several

opportunities for willing and eager spouses to avoid the legislative

protections embodied within the article. The current version of

article 2329 is largely unnecessary in today’s society, a conclusion

that is furthered by the ineffectiveness of the article and fueled by

the potentials for abuse detailed above.

The majority of article 2329’s intricacies may even overshadow

the legislature’s admirable goals, creating more inconvenience than

value. Article 2329 essentially relegates postmarital agreements to

the discretionary regulation of a court, requiring individuals

contracting postmaritally to comply with a strict court-approval

requirement in order to do so.

162

On the other hand, premarital

agreements and those agreements encompassed by article 2329’s

exemptions are not governed by similarly strict requirements.

163

In

essence, article 2329 makes agreements that are established or

altered during marriage more onerous than their premarital

counterparts, a result that is inconsistent with sound policy given

the modern landscape of marriage.

164

These discrepancies suggest

that article 2329 is largely a disappointment as applied to modern

day society. Although admittedly some safeguards may be

necessary, article 2329 goes too far by imposing arbitrary

distinctions and restrictions on postmarital agreements.

D. The Obligatory Nature of Article 2329 Is Questionable

The argument for revising article 2329 is enhanced by the

possibility that the Louisiana Legislature may not have intended

article 2329’s marital contracting requirements to be mandatory.

165

In fact, article 2329 is potentially a suppletive requirement that

may be “derogated from conventionally.”

166

“Neither the text nor

161. Id.

162. L

A. CIV. CODE art. 2329 (2015).

163. Spaht & Samuel, supra note 68, at 91.

164. By imposing additional requirements and hurdles on individuals

attempting to contract during marriage, the institution is hardly furthered or

promoted. Atwood, supra note 10, at 16. Recognizing that marriage is a favorable

public policy objective, difficulty in marital contracting is not desirable nor does it

encourage individuals to enter into the institution. Daniel T. Lichter, Marriage as

Public Policy, P

ROGRESSIVE POL’Y INST. (Sept. 2001), http://www.human.cornell

.edu/pam/outreach/upload/marriage_lichter.pdf, archived at http://perma.cc/52SH-

Y8LG.

165. Bailey, supra note 159, at 162.

166. Id. at 166.

2015] COMMENT 1423

the comments to the 1979 revision impose any sanctions for the

failure to obtain judicial approval,” suggesting that Louisiana

couples may not need to abide by the dictates of article 2329:

167

Article 2329 arguably falls under the general category of

supplemental law since it contains neither a commentative nor

textual directive of absolute nullity when the parties fail to

obtain judicial approval. Another factor supporting the

supplemental character of this requirement is the general trend

of increasing spousal contractual freedom. The legislature

dropped the historical bars to interspousal contracting

168

on the

assumption that modern spouses have equal bargaining

strength and can rely on general contractual enforcement and

protective devices to prevent overreaching. Requiring

mandatory judicial approval is inconsistent with this

assumption; article 2329 should not be considered mandatory

absent an express directive.

169

At the very least, the obligatory nature of article 2329 is

questionable.

170

Although Louisiana courts generally nullify

postmarital agreements that do not fulfill the court-approval

requirement,

171

such action is not traceable to a legislative directive.

Thus, despite courts nullifying agreements that do not comply with

article 2329, one is left to wonder whether such nullification is truly

what the Legislature intended when it enacted the court approval

provisions of article 2329. Therefore, a revision of the article would

help clarify its intended application, as the confusion surrounding

the obligatory nature of article 2329 supports the idea that it should

be revised to resolve the issue.

E. Freedom of Contract and Bargaining Theory

On a broader note, Louisiana has witnessed a “general trend of

increasing spousal contractual freedom” over the last few

decades.

172

In fact, this trend is not unique to Louisiana, as many

community property states have witnessed similar movements

167. Id. at 167.

168. Recognizing that the Legislature “dropped the historical bars to

interspousal contracting,” Bailey is referring to the fact that the Legislature

eliminated interspousal contractual incapacity when it implemented Louisiana

Civil Code article 1790 during the 1978 legislative session. Id.

169. Id. at 167–68 (citations omitted).

170. Id. at 168.

171. See, e.g., Muller v. Muller, 72 So. 3d 364, 368 (La. Ct. App. 2011).

172. Bailey, supra note 159, at 167.

1424 LOUISIANA LAW REVIEW [Vol. 75

toward contractual freedom among spouses.

173

Recognizing such

freedom as “advantageous,” one legal commentator offered the

following insight into the significance of postmarital contracting in

Louisiana:

Allowing modification of the regime during marriage can be

advantageous for a number of reasons—to utilize as an estate

planning tool, to replace what has become an unfavorable

system, to reflect changes resulting from the birth and growth

of children, to reflect changes in wealth, etc.

174

It appears that Louisiana generally favors contractual freedom

in the realm of marital contracting.

175

However, article 2329 does

not accord with this general view. Rather, article 2329 continues to

embody strict postmarital contracting requirements, a testament to

its outdated legislative reasoning and nonconformity with modern

trends.

Freedom-of-contract theory also provides a helpful response to

some supporters of article 2329’s court-approval requirement. For

example, advocates of article 2329 often rely on the presence of a

similar prerequisite in an old French Code Civil article as

justification for retaining the requirement in Louisiana.

176

In fact,

French Code Civil article 1397 also requires spouses to obtain

court approval in order to change or implement a marital

agreement during marriage.

177

However, the incorporation of the

court-approval requirement into the law of Louisiana is not as

seamless as its advocates believe. A prominent Louisiana scholar

noted that “the French legal system may be better suited for this

kind of judicial inquiry than Louisiana’s.”

178

European countries,

such as France, are historically “less deferential to freedom of

contract” principles than are American jurisdictions,

179

lending

support to the notion that article 2329’s court-approval requirement

is misplaced. In the United States, where freedom of contract is a

popular concept,

180

the court-approval requirement seems rather

173. Id. at 163.

174. Id. (citations omitted).

175. Id. at 167.

176. Spaht & Samuel, supra note 68, at 94−95 n.82.

177. Id.

178. Id. (citing P. H

ERZOG, CIVIL PROCEDURE IN FRANCE §§ 3.11–3.21,

7.51(c) (1967)).

179. Atwood, supra note 10, at 34.

180. See 5 W

ILLISTON ON CONTRACTS § 12.3 (4th ed.) (“[P]ublic policy . . .

requires that parties of full age and competent understanding must have the

greatest freedom of contracting, and contracts, when entered into freely and

voluntarily, must be upheld and enforced by the courts.”).

2015] COMMENT 1425

contradictory. Therefore, requiring court approval before

implementing or changing a marital agreement seems to make much

more sense in the French legal environment than it does in

Louisiana.

On a different note, a likely counterargument to freedom-of-

contract theory in the marital context lies in the inherently unstable

nature of the marital institution.

181

Specifically, this counterargument

is founded upon the notion “that the bargaining dynamics within an

intact marriage are materially different than the dynamics of

premarital bargaining.”

182

However, marital instability has been

exaggerated in this regard, leading many to the unwarranted

conclusion that spouses are unable to bargain on an equal playing

field.

183

In fact, “[b]argaining theory suggests that courts and

commentators have overstated the likely disparity in bargaining

power between richer and poorer spouses.”

184

Moreover, even

single-income families, in which the wife serves as a homemaker

while the husband functions as the primary breadwinner, do not

present concerns of contractual instability.

185

Although unbridled marital contracting will not always produce

fair outcomes, “any injustice is likely to be the result of the spouses’

default entitlements and not any defect in the bargaining process

itself.”

186

Rather than flowing from disproportionate bargaining

power, injustices in postmarital contracting will occur to the extent

that the default marital contracting rules of the state are unjust.

187

Therefore, if the state has established an effective set of default rules

to govern marital relationships and the separation of property upon

the dissolution of those relationships, spouses will not find

themselves contracting with one another on an unequal playing

field. Any injustices that are prevented solely by imposing

amplified restrictions on postmarital contracting are minimal.

188

As a leading family law scholar recognized, the availability of

postmarital agreements leaves both spouses better off than they

would be without such an option.

189

Bluffing and trickery generally

181. See generally Williams, supra note 15, at 830 (explaining that some

scholars continue to believe that bargaining dynamics in the marital realm are

materially different from bargaining in other contexts).

182. Id.

183. Id. at 851.

184. Id.

185. “[E]ven in a traditional family where the husband works for wages and

the wife works in the home, the husband’s bargaining power will not be

significantly greater than his wife’s.” Id.

186. Id. at 879.

187. See id.

188. See id.

189. See id.

1426 LOUISIANA LAW REVIEW [Vol. 75

do not influence the marital contracting process, as women likely

have sufficient information to recognize any inopportune agreements

presented to them by their husbands.

190

Overall, “[t]he results of any

bargain will benefit both spouses compared to their option to divorce

under the state’s default rules.”

191

F. Privacy Concerns: Marital Agreements Are Intended To Be

Private

Furthermore, some scholars seem to respect the increasing

marital equality and contractual capabilities of spouses by

recognizing those spouses’ privacy to execute their agreements.

192

In fact, all postmarital agreements are intended to be private and

solely a matter for consideration between the spouses.

193

Moreover,

“[n]o state requires that spouses register their [postmarital]

agreements in any formal way.”

194

Nevertheless, Louisiana seems to

reject this notion of privacy altogether, forcing spouses to seek the

input and approval of an outside official before implementing a

postmarital agreement.

195

Although marital agreements must be

recorded in the public records in certain circumstances,

196

such

recordation of the agreement does not rise to the level of injecting an

outsider’s input into the substance of the agreement.

197

If marital agreements are truly intended to be private, injecting

the disinterested opinions of a third-party judge into the postmarital

contracting process does little to further privacy-oriented objectives.

As a whole, postmarital agreements are intended to be a private

matter for a reason. Particularly in today’s society in which the

marital playing field has largely been equalized, spouses know how

they want to structure their marriages, and they are educated and

worthy enough to make those decisions in private by themselves.

190. Id.

191. Id.

192. See generally id. at 833.

193. Id.

194. Id.

195. L

A. CIV. CODE art. 2329 (2015).

196. In Louisiana, a marital agreement must be recorded in the public records

in order to affect third persons. L

A. CIV. CODE art. 2332 (2015).

197. Arguably, the recordation of a marital agreement is much less of an

intrusion into privacy than allowing a third party to dictate substantive terms of

that agreement.

2015] COMMENT 1427

III. A SURVEY OF DIFFERING JURISDICTIONAL APPROACHES

With premarital and postmarital agreements finding widespread

acceptance and utilization throughout the United States,

198

it should

not come as a surprise that many states and regulatory bodies differ

in their approaches as to how such agreements should be regulated.

For example, the Uniform Law Commission recently approved the

Uniform Premarital and Marital Agreements Act, model legislation

that serves as a prime example for states to follow in updating their

laws governing marital agreements.

199

To date, Colorado and North

Dakota have adopted the Act in their jurisdictions, while legislators

in Mississippi and the District of Columbia have introduced the

Act to their colleagues for approval.

200

Another popular regulatory approach involves a careful-scrutiny

framework in which a judge is to consider a marital agreement with

“careful scrutiny” only if the agreement is challenged or

contested.

201

Massachusetts employs such a framework in an

effective manner.

202

Yet another approach focuses on the notion that spouses must

employ independent counsel when formulating their agreements,

an approach grounded in principles of substantive fairness, which

has been adopted by the state of Minnesota.

203

Lastly, other states opt to treat premarital and postmarital

agreements under an identical set of standards, citing a general

freedom-of-contract theory as justification for doing so.

204

Utah

and Wisconsin govern marital agreements in this manner, yet both

operate slightly differently in regulating premarital and postmarital

agreements on a level playing field.

A. Uniform Premarital and Marital Agreements Act

On a national stage, the law governing marital agreements has

undergone significant modifications in accordance with the ever-

changing world of marriage. The Uniform Law Commission

(ULC) recently approved the Uniform Premarital and Marital

Agreements Act, a new piece of model legislation calling for states

198. Stoner, supra note 28.

199. U

NIF. PREMARITAL & MARITAL AGREEMENTS ACT (2012).

200. Premarital and Marital Agreements Act, UNIFORM LAW COMM’N,

http://www.uniformlaws.org/Act.aspx?title=Premarital+and+Marital+Agreements

+Act, archived at http://perma.cc/NA2F-6Y3N (last visited Feb. 5, 2015).

201. See infra Part III.B.

202. See infra Part III.B.

203. See infra Part III.C.

204. See infra Part III.D.

1428 LOUISIANA LAW REVIEW [Vol. 75

“to treat premarital agreements and marital agreements under the

same set of principles and requirements.”

205

Approved in July

2012, the Act suggests that “parties should be free, within broad

limits, to choose the financial terms of their marriage,” with due

process and substantive fairness benchmarks serving as the only

limitations.

206

As its name suggests, the Uniform Premarital and Marital

Agreements Act covers agreements executed both prior and

subsequent to the beginning of a marital relationship.

207

After

considerable debate, the Drafting Committee of the Act determined

that premarital and postmarital agreements should be judged under

the same set of standards, arguing that postmarital agreements do

not deserve the heightened scrutiny that many states currently

employ.

208

The Drafting Committee recognized that postmarital

agreements are characterized by a different set of risks than are

premarital agreements, namely risks of unfairness, duress and

undue influence, and changing circumstances.

209

In response, the

Drafting Committee concluded that the resources available in the

new Uniform Premarital and Marital Agreements Act, along with

various common law principles, are “sufficient to deal with the

likely problems related to either type of transaction.”

210

The requirement that the spouse presented with a proposed

agreement have access to independent legal representation before

executing the agreement is arguably the most important feature of

the new Uniform Premarital and Marital Agreements Act.

211

Such

access “necessarily means both the money to hire a lawyer and the

time to find one, get advice, and consider that advice.”

212

This

requirement of separate legal representation applies to both

premarital and postmarital agreements, ensuring that spouses in

both circumstances have enough time and resources to fully

consider any proposed changes to the terms of their marital

relationships.

213

At the end of the day, requiring access to

205. UNIF. PREMARITAL & MARITAL AGREEMENTS ACT (2012).

206. Id.

207. Id.

208. Bix et al., supra note 5, at 315.

209. U

NIF. PREMARITAL & MARITAL AGREEMENTS ACT (2012).

210. Id.

211. Linda J. Ravdin, The New Uniform Premarital and Marital Agreement

Act, P

ASTERNAK & FIDIS (Apr. 1, 2013), http://www.pasternakfidis.com/divorce

_family_law/new-uniform-premarital-marital-agreements-act, archived at http:

//perma.cc/3N8D-8Y7S.

212. Id.

213. See id.

2015] COMMENT 1429

independent legal counsel will cut down on spousal overreaching

and unfairness in marital contracting.

214

The objective of the Drafting Committee in the Uniform

Premarital and Marital Agreements Act was to produce an act that

“promote[d] informed decision-making and procedural fairness

without undermining interests in contractual autonomy, predictability,

and reliance.”

215

Importantly, the Drafting Committee was motivated

by the “changing socioeconomic reality” taking place in the United

States, citing the notion that men and women are no longer inherently

unequal creatures in marital relationships:

216

The Committee was also aware of our changing

socioeconomic reality. Notwithstanding the persistence of

economic inequality along gender lines, the relative value

of marriage for men and women has been shifting since the

original UPAA was enacted. Women have exceeded men in

education and income growth over the last four decades

and have almost reached parity as a percentage of the

workforce. In almost a quarter of marriages, wives are now

the higher wage earners, and in a majority of marriages,

wives have an equal or higher education level than their

husbands.

217

Providing a national perspective on the inconsistencies in

marital contracting that are prevalent in Louisiana, the Uniform

Premarital and Marital Agreements Act serves as a welcoming

opportunity to revise article 2329 to conform to today’s society.

The Council of State Governments approved the Act as “Suggested

State Legislation” in September 2013, further demonstrating that

the Act is ripe for adoption across the country.

218

214. One should recognize, however, that requiring access to independent

counsel will create barriers to freedom of contract. Nevertheless, such a

requirement may be necessary to govern the marital relationship effectively

without mandating that spouses obtain court approval of their marital

agreements. Essentially, one may be faced with a battle of two evils in the

marital context due to the inherent instability that remains a part of the

institution. See supra Part II.

215. Bix et al., supra note 5, at 315.

216. Id. at 316.

217. Id. (citations omitted).

218. CSG Includes Uniform Premarital and Marital Agreements Act as

“Suggested State Legislation”, U

NIF. LAW COMM’N (Sept. 19, 2013), available at

http://www.uniformlaws.org/NewsDetail.aspx?title=CSG%20Includes%20Uniform

%20Premarital%20and%20Marital%20Agreements%20Act%20as%20%22Suggest

ed%20State%20Legislation%22, archived at http://perma.cc/S2K5-6A9F.

1430 LOUISIANA LAW REVIEW [Vol. 75

B. Modified Careful-Scrutiny Framework

Massachusetts employs a careful-scrutiny test that effectively

addresses and adapts to the concerns surrounding marital

agreements in an appropriate, efficient, and modern framework.

219

First, postmarital agreements are not subject to a court-approval

requirement in Massachusetts as they are in Louisiana.

220

Rather,

Massachusetts respects the wishes of contracting spouses and

allows them to contract postmarital agreements without imposing

any restrictions at the time of agreement.

221

The only restrictions

on postmarital agreements in Massachusetts are imposed much

later in the process, if and when the agreement is challenged or

contested in court.

222

“In general, Massachusetts courts prefer to

respect the right of [the] parties to freely enter into contracts.

Postnuptial agreements are, however, subject to careful

scrutiny.”

223

If presented with a disputed marital agreement, Massachusetts

courts require that agreement to be “fair and reasonable both at the

time of its execution and the time of its enforcement.”

224

Although

these principles are not legislatively codified, the Massachusetts

Supreme Court has set forth a five-factor test with which to

determine the enforceability of marital agreements:

225

Before a marital agreement is sanctioned by a court, careful

scrutiny by the judge should determine at a minimum

whether (1) each party has had an opportunity to obtain

separate legal counsel of each party’s own choosing; (2)

there was fraud or coercion in obtaining the agreement; (3)

all assets were fully disclosed by both parties before the

agreement was executed; (4) each spouse knowingly and

explicitly agreed in writing to waive the right to a judicial

equitable division of assets and all marital rights in the

event of a divorce; and (5) the terms of the agreement are

fair and reasonable at the time of execution and at the time

of divorce. Where one spouse challenges the enforceability

219. See generally Bruno, supra note 138; Ansin v. Craven-Ansin, 929

N.E.2d 955 (Mass. 2010).

220. See Bruno, supra note 138.

221. Id.

222. Id.

223. Mary H. Schmidt & Christopher H. Suh, A Practical Guide to Estate

Planning in Massachusetts, M

ASS. CONTINUING LEGAL EDUC., INC., EPII MA-

CLE 12-1 (Vol. II, ch. 12) (2011) (citing DeCristofaro v. DeCristofaro, 508

N.E.2d 104 (Mass. App. Ct. 1987); Ansin, 929 N.E.2d at 963–64 (Mass. 2010)).

224. See Schmidt & Suh, supra note 223.

225. See Ansin, 929 N.E.2d at 963–64.

2015] COMMENT 1431

of the agreement, the spouse seeking to enforce the

agreement shall bear the burden of satisfying these

criteria.

226

Massachusetts does not impose heightened restrictions on

postmarital agreements from the outset.

227

Rather, all marital

agreements in Massachusetts are simply viewed with “careful

scrutiny” if challenged to guard against any possible mistreatment or

unfair dealing.

228

Therefore, Massachusetts couples are not burdened

with having to obtain court approval of their postmarital agreements,

as they are able to effectively structure the terms of their marriages

themselves.

C. Substantive Fairness and Independent Counsel Framework

Similar to Louisiana, Minnesota imposes restrictions on

postmarital agreements that do not apply to premarital agreements.

229

Specifically, Minnesota “requires that each spouse be represented by

counsel when forming a postnuptial agreement, but requires merely

the opportunity to obtain independent counsel when forming a

prenuptial agreement.”

230

In the realm of postmarital agreements,

Minnesota also “require[s] that the agreement meet standards of

substantive fairness both at the time it is signed and at the time it is

ultimately enforced, even though [Minnesota] reject[s] this

requirement for prenuptial agreements.”

231

Overall, postmarital agreements in Minnesota are not effective

unless the spouses are represented by independent counsel and the

agreement is substantively fair at the time it is signed and the time

it is enforced.

232

However, Minnesota does not require spouses to

seek judicial approval of their postmarital agreements, but instead

leaves it up to the spouses to decide what the terms of their

marriage should be.

233

Thus, Minnesota’s landscape of postmarital

and premarital agreements is characterized by heightened

restrictions on the former, but unlike Louisiana, it does not require

an outside determination by a disinterested third party.

226. Id. (footnotes omitted).

227. See Schmidt & Suh, supra note 223.

228. See id.; Ansin, 929 N.E.2d at 963–64.

229. M

INN. STAT. ANN. § 519.11 (West 2015).

230. Williams, supra note 15, at 838–39. See also M

INN. STAT. ANN. §

519.11 (West 2015).

231. Williams, supra note 15, at 839.

232. Id. at 838–39. See also M

INN. STAT. ANN. § 519.11 (West 2013).

233. Williams, supra note 15, at 838–39.

1432 LOUISIANA LAW REVIEW [Vol. 75

D. General Freedom-of-Contract Framework

In Utah, premarital and postmarital agreements are treated

under a common set of standards, and postmarital agreements are

not subject to any heightened restrictions or requirements.

234

In

fact, a postmarital agreement in Utah is enforceable “absent fraud,

coercion, or material nondisclosure.”

235

According to prominent

Utah family law attorney Eric Johnson, “[p]ostmarital and

premarital agreements are generally subject to ordinary contract

principles.”

236

Essentially, postmarital agreements and premarital

agreements are in no way different from any other type of contract

in Utah. Overall, the state seems to completely ignore the marital

aspect of spousal contracting, bypassing the fact that the

bargaining parties may potentially be at less than arm’s length.

In Wisconsin, premarital and postmarital agreements are

treated identically by statute.

237

Specifically, Wisconsin previously

adopted the Uniform Premarital Agreements Act, a 1986 Uniform

Law Commission proposal that the Uniform Premarital and Marital

Agreements Act is designed to replace, for both premarital and

postmarital agreements.

238

Therefore, in Wisconsin, premarital and

postmarital agreements are generally enforceable, unless a spouse

proves satisfaction of one of a host of factors delineated by the

Wisconsin legislature.

239

Unlike Louisiana, Wisconsin does not

require spouses to obtain court approval if they attempt to execute

a postmarital agreement, nor does Wisconsin subject such

agreements to heighted restrictions.

IV. HOW LOUISIANA SHOULD ADDRESS THE DEFICIENCIES OF

ARTICLE 2329: ALTERNATIVES TO PURSUE IN REVISION

The Louisiana Legislature could pursue a few different avenues

in revising article 2329, all of which have the potential to be

effective in updating Louisiana’s marital agreement laws and

philosophies. Two of the more promising solutions are incorporated

in the following subsections. One such approach embraces the

forethought and reasoning of the Uniform Law Commission, as

Louisiana could adopt the Uniform Premarital and Marital

234. See Eric K. Johnson, Utah Family Law, in 2 UTAH PRACTICE SERIES § 30-

8-6 (2014 ed.).

235. D’Aston v. D’Aston, 808 P.2d 111, 113 (Utah Ct. App. 1990).

236. Johnson, supra note 234.

237. W

IS. STAT. ANN § 766.58 (West 2015).

238. Id.

239. Id. See generally Katherine W. Lambert, Death in Wisconsin, in 16

W

ISCONSIN PRACTICE SERIES § 12:15 (9th ed. West 2014).

2015] COMMENT 1433

Agreements Act to reform the current version of article 2329.

240

This approach would help to align Louisiana with the national

trends, which have begun to shift toward the equal treatment of

premarital and postmarital agreements.

241

As such, Louisiana

spouses and prospective spouses would realize and experience the

freedom and flexibility that is needed to equate marital contracting

laws with the current landscape of the marital institution, making it

that much easier to enter into and modify marital relationships.

Alternatively, Louisiana could employ a careful-scrutiny framework

very similar to the one currently utilized by Massachusetts.

242

This

approach would help Louisiana adapt to the changing landscape of

marriage by providing spouses with more freedom to execute

marital agreements on their own terms while retaining an aspect of

judicial oversight to prevent abuse if the agreements are ever

challenged or contested.

243

A. Louisiana Should Adopt the Uniform Premarital and Marital

Agreements Act

First, a promising solution that the Louisiana Legislature should

pursue in correcting the inefficiencies and shortcomings of article

2329 is to adopt the Uniform Premarital and Marital Agreements Act

in Louisiana. The Act treats premarital and postmarital agreements

under the same set of standards, dealing with any risks inherent in

postmarital agreements in a more flexible and appropriate

manner.

244

By requiring spouses to obtain independent counsel and

implementing other procedural mechanisms such as due process

requirements in the formation of marital agreements as well as

principles of substantive fairness,

245

the Uniform Premarital and

Marital Agreements Act effectively governs postmarital agreements

without imposing unreasonable restrictions or undue distinctions.

240. See infra Part IV.A.

241. See infra Part IV.A.

242. See infra Part IV.B.

243. See infra Part IV.B.

244. U

NIF. PREMARITAL & MARITAL AGREEMENTS ACT (2012).

245. The Uniform Premarital and Marital Agreements Act requires that

spouses have independent legal representation when executing premarital and

postmarital agreements. Id. In addition, the Act delineates several enforcement

standards, noting that agreements may be deemed unenforceable under

circumstances involving duress, inadequate representation, and an insufficient

explanation of the rights and obligations being altered. Id. Furthermore, the Act

requires that consideration be given “to the need to promote uniformity of the

law,” and it also incorporates a list of unenforceable terms that will not be given

effect in premarital and marital agreements. Id.

1434 LOUISIANA LAW REVIEW [Vol. 75

Under the Act, spouses in Louisiana would no longer be forced

to submit to the determinations of a judge in executing their

marital agreements, as they would have the freedom to contract on

their own terms. As such, Louisiana would begin to respect the

contractual capacity of its married citizens while maintaining

sufficient regulation through alternative procedures. By adopting

the Act, Louisiana’s law would be much more in line with the

modern conceptions of marriage and the needs of today’s spouses,

unlike the arbitrary court-approval requirement that remains in

force through Louisiana Civil Code article 2329.

B. Louisiana Should Implement a Legislative Solution Employing

the Massachusetts Framework

Another viable solution is to revise the article to incorporate

principles similar to those employed in Massachusetts.

246

Although

Massachusetts does not currently distinguish between premarital

and postmarital agreements by statute, the state supreme court

recently handed down a landmark decision in the marital-

agreement context that calls for the unique treatment of such

agreements.

247

Specifically, the court in Ansin v. Craven-Ansin

delineated a list of factors that a court should consider before

“sanctioning” a marital agreement.

248

Massachusetts does not

require postmarital agreements to be approved or ratified by a

court, nor does it mandate the involvement of a disinterested third

party.

249

Rather, the parties are free to contract a postmarital

agreement with the terms and principles of their choosing; the

court system only becomes involved if the agreement is

subsequently challenged.

250

If challenged, a Massachusetts court

will then employ the Ansin factors to ensure that the postmarital

agreement was executed and formed properly.

251

This solution is also much more appropriate and in line with

the marital traditions of today than is article 2329, providing both

the flexibility and uniformity that will help attract more individuals

to the institution of marriage. The marital agreement law of

Massachusetts serves as a helpful example of marital agreement

policies being adapted to the changing marital landscape of today’s

246.

247.

See Ansin v. Craven-Ansin, 929 N.E.2d 955 (Mass. 2010).

See id.

248. Id. at 963–64.

249.

250.

251.

See id.; Bruno, supra note 138; Schmidt & Suh, supra note 223.

Schmidt & Suh, supra note 223.

Id.

2015] COMMENT 1435

world, and Louisiana would be well served to adopt a similar

approach.

CONCLUSION

The complicated world of premarital and postmarital contracting is

characterized by historically rooted, competing views as to how much

regulation these agreements truly warrant. Although postmarital

agreements may have deserved heightened restrictions and detailed

approval requirements in the past, the day has come for a change.

Premarital and postmarital agreements are a large part of the marital

landscape in today’s society, serving as efficient mechanisms through

which couples can manage the increasingly unstable institution of

marriage. Therefore, the law governing such agreements should not

retain relics of the past—adjustment is vital. Marriage is in a

downward spiral across the country, and the Louisiana Legislature has

the ability to begin correcting this spiral in Louisiana for the better. By

offering flexibility and uniformity to married couples to structure their

marriages, more individuals are likely to favor the institution and begin

to reclaim its noted benefits. The Louisiana Legislature must revise

Louisiana Civil Code article 2329 and rid the article of its arbitrary and

unwarranted court-approval requirement.

Christopher Kirt Ulfers

*

 J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.

The author would like to thank Professors Elizabeth Carter and Andrea Carroll

for their thoughtful comments and unwavering support during the writing and

editing process. In addition, the author thanks Minia Bremenstul and McClain

Schonekas for their guidance in preparing this Comment for publication. This

Comment would not have been possible without the constant support,

encouragement, and inspiration of the author’s family, particularly his fiancé,

Shannon Naccari.