community property and covenant marriage

Louisiana Department of Justice

Office of the Attorney General

James D. “Buddy” Caldwell

Attorney General

Louisiana Laws on

Community Property and

Covenant Marriage

Louisiana Department of Justice

Office of the Attorney General

Civil Division

P.O. Box 94005

Baton Rouge, Louisiana 70804-9095

225.326.6000

www.agbuddycaldwell.com

Statewide Lawyer Referral and Information Service

888.503.5747

Louisiana State Bar Association

www.lsba.org

Local Bar Services

Baton Rouge: 225.344.9926

Lafayette: 337.237.4700

Lake Charles: 337.436.2914

New Orleans: 504.561.8828

Shreveport: 318.222.0720

Southwest Louisiana: 337.436.3308

Louisiana Laws on Community Property and Covenant Marriage

Louisiana law, LA-R.S. 9:237, has empowered the attorney general to prepare,

for the local officers who issue marriage licenses, a summary of the community

property laws and the covenant marriage laws of this state, with the mandate to these

local officers to deliver this summary to each prospective spouse when they receive

their license to marry. This pamphlet contains the summary of these laws.

It should be understood at the outset that this pamphlet only briefly

summarizes the law so that the prospective spouses can have a general idea of what

the Louisiana law on these topics contains. This summary should provoke thought

among prospective spouses, who, before they enter into marriage, should consider

some of the options opened up by these laws, what the situation will be if the

prospective spouses do nothing, and the consequences of exercising an option or

doing nothing. For a more detailed analysis on precisely how these laws affect their

individual circumstances and what may be the best way to maneuver through this

legal pathway, prospective spouses should consult their private attorneys. If you are a

prospective spouse and do not have an attorney, this pamphlet, also contains some of

the referral programs available through the state and local bar associations.

Louisiana Department of Justice

LOUISIANA’S COMMUNITY PROPERTY LAW AND HOW TO

CHANGE ITS EFFECTS BY CONTRACT

This part of the pamphlet is designed to explain how Louisiana’s community property

law establishes the property rights of husbands and wives and how the effects of the

community property system can be altered by contract.

In Louisiana, marriage affects the property rights of both men and women. The rights

of married people to buy, sell, or control their property, to borrow money, and to get

credit are all regulated by law. “Property” includes almost everything: house, land,

bank accounts, stock, pension plans, wages and other income and things of value.

A married couple becomes subject to Louisiana’s community property law

automatically upon marrying, unless they have made a special contract providing

different rules to govern their property.

What is community property?

The community property laws provide rules on who may incur debts, how those debts

are to be paid, and how debts and assets are to be divided between the husband and

wife if their community ends.

Marriage Contracts

A couple may make a written marriage contract before the wedding which sets out

how they want their property owned and controlled. A marriage contract written

before marriage does not need court approval for its provisions that are in accordance

with Louisiana law to be enforceable. Married people from another state who move

into Louisiana, and who do not wish to have their property become community

property, have one year after they move to Louisiana to make a marriage contract to

that effect without a judge’s approval. Their contract is also governed by the Louisiana

law on separation of property, so the contract is valid if it is in accordance with

relevant Louisiana law. Of course, after the first year, they too may enter a separation

of property agreement with court approval.

Remember

• By law, marriage changes your property rights.

• The community property law will apply to you if you do not make a special

marriage contract.

• You may make this special contract before or after you are married, but some

contracts written after marriage require a judge’s approval to be legal.

Louisiana Laws on Community Property and Covenant Marriage

• If you were married outside of Louisiana, moving here has changed your property

rights. You have one year from the date you moved to make a marriage contract

without a judge’s approval.

• The contract must be signed by the man and woman in the presence of a Notary

Public and two witnesses or executed by a private signature duly acknowledged.

• You should see a lawyer so that you will know how the taxes on your property and

the inheritance of your property may be changed by your marriage.

• If you do not know a lawyer, the Lawyer Referral Service can help you find one. In

large cities, call your Legal Aid office for assistance if you cannot afford a lawyer.

• There is a list of some legal resources in the beginning of this pamphlet.

If you need further help in understanding the community property laws, or if you are

thinking about making a marriage contract, you should consult an attorney.

Louisiana Department of Justice

THE COVENANT MARRIAGE ACT

What is covenant marriage?

Legal commentaries have noted that recent developments in social and legal history

have substantially contributed to the weakening of marriage. The Louisiana Legislature

decided that it was time for the law to strengthen marriage and stabilize family life.

However, it did not decide to do so by changing the existing law on what is now the

“standard” marriage of law. Rather, it enacted a new, stronger, alternative form of

marriage, called the covenant marriage.

In short, the law describes a covenant marriage as a marriage entered into by one

male and one female who understand and agree that the marriage between them is a

lifelong relationship.

How does a couple enter into a covenant marriage?

If a couple does not take additional steps to confect other special contracts or file

special documents but merely go through the usual steps simply to get married, they

do not enter into a covenant marriage. By simply getting married, they enter into what

is now a “standard” marriage in Louisiana law. In order to enter into a covenant

marriage, the couple must take special steps and execute and record special

documents on the public record.

The law provides that a man and woman may contract a covenant marriage by

declaring their intent to do so on their application for a marriage license and executing

a declaration of intent to contract a covenant marriage and then, of course, actually

getting married accordingly. The application for a marriage license and the declaration

of intent shall be filed with the official who issues the marriage license.

The declaration of intent to contract a covenant marriage shall contain all of the

following:

• A recitation signed by both parties to the following effect:

“We do solemnly declare that marriage is a covenant between a man and a

woman who agree to live together as husband and wife for so long as they both

may live. We have chosen each other carefully and disclosed to one another

everything which could adversely affect the decision to enter into this marriage.

We have received premarital counseling on the nature, purposes, and

responsibilities of marriage. We have read the Covenant Marriage Act, and we

understand that a Covenant Marriage is for life. If we experience marital

difficulties, we commit ourselves to take all reasonable efforts to preserve our

marriage, including marital counseling.”

Louisiana Laws on Community Property and Covenant Marriage

“With full knowledge of what this commitment means, we do hereby declare

that our marriage will be bound by Louisiana law on Covenant Marriages and

we promise to love, honor, and care for one another as husband and wife.”

• An affidavit by the parties attesting they have received premarital counseling from

a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of

any religious sect, or a professional marriage counselor. The seriousness of

covenant marriage shall be included in the discussion during counseling.

• An attestation signed by the counselor and attached to or included in the parties’

affidavit, confirming that the parties were counseled as to the nature and purpose

of the marriage.

• The signature of both parties witnessed by a notary.

• If one or both of the parties are minors, the written consent or authorization of

those persons required under the Children’s Code to consent to or authorize the

marriage of minors.

Thus, the declaration shall contain two separate documents, the recitation and the

affidavit of the parties to the marriage, the latter of which shall include the attestation

of the premarital counselor, either included therein or attached thereto. The recitation

of the parties shall be prepared in duplicate originals, one of which shall be retained by

the parties and the other, together with the affidavit and attestation, shall be filed with

the official who issues the marriage license.

The law also stipulates a method by which already married couples may convert their

marriage from a “standard” marriage into a covenant marriage by designating it so.

This method is very similar to the method by which covenant marriage is entered into

in the first instance, but, in this declaration of intent, the two spouses renew their

original marriage promise to love, honor, and care for one another as husband and

wife for the rest of their lives and, of course, instead of “premarital counseling,” they

simply undergo the covenant marriage counseling prior to designating their marriage

as a covenant marriage. The declaration of intent and other documents are filed with

the state officer who issued their original marriage license and who maintains the

record of their marriage certificate. If they were originally married out of state, they

file a copy of their marriage certificate from the other state, which does not have to be

certified, together with the covenant marriage documents, with the officer who issues

marriage licenses in the parish in which they are domiciled. The officer will then make

a notation on the copy of the out-of-state marriage certificate that a declaration of

intent has been filed by the couple to designate their marriage as a covenant

marriage.

Louisiana Department of Justice

What are some of the special incidents and effects of a covenant marriage?

The law provides that the spouses to a covenant marriage owe to each other the same

legal obligations as couples in a “standard” marriage, but it also provides, in addition,

some special rules. Essentially, these special rules include the following: Spouses owe

each other love and respect and they commit to a community of living. Spouses are

bound to live together, unless there is a good cause otherwise. The spouses determine

the family residence by mutual consent, according to their requirements and those of

the family. The management of the household shall be the right and the duty of both

spouses. Spouses by mutual consent after collaboration should make decisions relating

to family life in the best interest of the family.

An extremely important and special incident and effect of a covenant marriage is that

each of the parties to the covenant marriage has voluntarily declared, “If we

experience marital difficulties, we commit ourselves to take all reasonable efforts to

preserve our marriage, including marriage counseling”. According to legal

commentaries, this declaration is a legally binding obligation to which they have

stipulated. It should be noted that not only formal marital counseling, if needed, be

undertaken by the spouses in times of marital difficulties but also all other reasonable

steps as well be observed. These steps could include a myriad of other religious and

non-religious assistance to the preservation of the marriage. Whether any one step or

effort is “reasonable” will depend on all the circumstances. If the circumstances

warrant, counseling programs may be undertaken for each spouse separately, or

separate counseling programs be given to each spouse separately.

How does a covenant marriage strengthen marriage through new and

different divorce/separation laws?

As one legal commentary explained, “the covenant marriage legislation represents the

first time, as a general trend, in two hundred years in any Western country that

divorce has become more difficult rather than easier”. In a “standard” marriage,

eventhough there are two spouses to a marriage, one of those acting alone can

effectively abandon the other spouse with a divorce in six (6) months or twelve (12)

months if there are minor children; even when the other spouse would like to try

reasonable efforts, including marital counseling, to preserve their marriage. In a

covenant marriage, both spouses have voluntarily stipulated that when marital

difficulties arise, they will make all reasonable efforts to preserve the marriage,

including marital counseling. The law provides that the counseling or other such

reasonable steps taken by the spouses to preserve the marriage, as required by the

Declaration of Intent signed by the spouses, shall occur once the parties experience

marital difficulties and, further, that if the spouses begin living separate and apart, the

counseling or other intervention should continue until the rendition of a judgment of

divorce.

Louisiana Laws on Community Property and Covenant Marriage

What are the grounds for a covenant marriage divorce?

• The other spouse has committed adultery.

• The other spouse has committed a felony and has been sentenced to death or

imprisonment at hard labor.

• The other spouse has abandoned the matrimonial domicile for a period of one year

and constantly refuses to return.

• The other spouse has physically or sexually abused the spouse seeking the divorce

or a child of one of the spouses.

• The spouses have been living separate and apart continuously without

reconciliation for a period of two years.

• The spouses have been living separate and apart continuously without

reconciliation for a period of one year from the date of the judgment of separation

from bed and board was signed.

• If there is a minor child or children of the marriage, the spouses have been living

separate and apart continuously without reconciliation for a period of one year and

six months from the date the judgment of separation from bed and board was

signed; however, if abuse of a child of the marriage or a child of one of the

spouses is the basis for which the judgment of separation from bed and board was

obtained, then a judgment of divorce may be obtained if the spouses have been

living separate and apart continuously without reconciliation for a period of one

year from the date the judgment of separation from bed and board was signed.

Instead of an immediate divorce, a separation from bed and board may be

obtained. The grounds for a judgment of separation from bed and board are

as follows:

• The other spouse has committed adultery.

• The other spouse has committed a felony and has been sentenced to death or

imprisonment at hard labor.

• The other spouse has abandoned the matrimonial domicile for a period of one year

and constantly refuses to return.

• The other spouse has physically or sexually abused the spouse seeking the divorce

or a child of one of the spouses.

Louisiana Department of Justice

• The spouses have been living separate and apart continuously without

reconciliation for a period of two years.

• On account of habitual intemperance of the other spouse, or excesses, cruel

treatment, or outrages of the other spouse, if such habitual intemperance, or such

ill-treatment is of such a nature as to render their living together insupportable.

Sample covenant marriage forms

The law suggests some sample forms for couples about to enter into a covenant

marriage. The law says that the Declaration of Intent shall consist of two documents-

namely, the recitation and the affidavit, the latter of which shall include the attestation

of the premarital counselor either included therein or attached thereto. The recitation

shall be prepared in duplicate originals, one of which shall be retained by the parties

and the other, together with the affidavit and attestation, shall be filed with the officer

who issues marriage licenses, and the marriage license itself should reflect the intent

to contract a covenant marriage.

(a) Recitation

Declaration of Intent

“We do solemnly declare that marriage is a covenant between a man and

woman who agree to live together as husband and wife for so long as they both

may live. We have chosen each other carefully and disclosed to one another

everything which could adversely affect the decision to enter this marriage. We

have received premarital counseling on the nature, purposes, and

responsibilities of marriage. We have read the Covenant Marriage Act, and we

understand that a Covenant Marriage is for life. If we experience marital

difficulties, we commit ourselves to take all reasonable efforts to preserve our

marriage, including marital counseling.”

“With full knowledge of what this commitment means, we do hereby declare

that our marriage will be bound by Louisiana law on Covenant Marriages and

we promise to love, honor, and care for one another as husband and wife for

the rest of our lives. “

Signed:

(Name of Prospective Spouse)

Louisiana Laws on Community Property and Covenant Marriage

(b) Affidavit

STATE OF LOUISIANA

PARISH OF

BE IT KNOWN THAT on this day of ,

before me the undersigned notary, personally came and appeared:

and

(Insert names of prospective spouses)

Who after being duly sworn by me, Notary, deposed and stated that:

Affiants acknowledge that they have received premarital counseling from a

priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman

of any religious sect, or a professional marriage counselor, which marriage

counseling included:

A discussion of the seriousness of Covenant Marriage;

Communication of the fact that a Covenant Marriage is a commitment for

for life;

The Obligation of a Covenant Marriage to take reasonable efforts to

preserve the marriage if martial difficulties arise, and

That the affiants both read the pamphlet entitled “The Covenant

Marriage Act” developed and promulgated by the office of the attorney

general, which provides a full explanation of a Covenant Marriage,

including the obligation to seek marital counseling in times of marital

difficulties and the exclusive grounds for legally terminating a Covenant

Marriage by divorce or divorce after a judgment of separation from bed

or board.

Louisiana Department of Justice

(Name of prospective spouse)

SWORN TO AND SUBSCRIBED, before me, this day of ,

_____.

NOTARY PUBLIC

Attestation

The undersigned does hereby attest that the affiants did receive counseling

from me as to the nature and purpose of marriage, which included a discussion

of the seriousness of Covenant Marriage, communication of the fact that a

Covenant Marriage is for life, and the obligation of a Covenant Marriage to take

reasonable efforts to preserve the marriage if marital difficulties arise.

COUNSELOR

Sample covenant marriage forms for couples already married

(a) Recitation

Declaration of Intent

“We do solemnly declare that marriage is a covenant between a man and a

woman who agree to live together as husband and wife for so long as they both

may live. We understand the nature, purpose, and responsibilities of marriage.

We have read the Covenant Marriage Act, and we understand that a Covenant

Marriage is for life. If we experience marital difficulties, we commit ourselves to

take reasonable efforts to preserve our marriage, including marital counseling.”

“With full knowledge of what this commitment means, we do hereby declare

that our marriage will be bound by Louisiana law on Covenant Marriage, and we

renew our promise to love, honor, and care for one another as husband and

wife for the rest of our lives.”

Louisiana Laws on Community Property and Covenant Marriage

Signed:

(Name of Spouse)

(b) Affidavit

STATE OF LOUISIANA

PARISH OF _______________

BE IT KNOWN THAT on this ____day of __________, _____, before me the

undersigned notary, personally came and appeared:

and

(Insert names of spouses)

Who after being sworn by me, Notary, deposed and stated that:

Affiants acknowledge that they have received counseling from a priest, minister,

rabbi, clerk of the Religious Society of Friends, and clergymen of any religious

sect, or a professional marriage counselor, which counseling included:

A discussion of the seriousness of Covenant Marriage;

Communication of the fact that a Covenant Marriage is a commitment for

life;

The obligation of a Covenant Marriage to take reasonable efforts to

preserve the marriage if martial difficulties arise, and

That the affiants both read the pamphlet entitled “The Covenant

Marriage Act” developed and promulgated by the office of the attorney

general, which provides a full explanation of a Covenant Marriage,

including the obligation to seek marital counseling in times of marital

Louisiana Department of Justice

difficulties and the exclusive grounds for legally terminating a Covenant

Marriage by divorce or divorce after a judgment of separation from bed

or board.

(Name of Spouse)

SWORN TO AND SUBSCRIBED, before me, this day of ,

NOTARY PUBLIC

Attestation

The undersigned does hereby attest that the affiants did receive counseling

from me as to the nature and purpose of marriage, which included a discussion

of the seriousness of Covenant Marriage, communication of the fact that a

Covenant Marriage is for life, and the obligation of a Covenant Marriage to take

reasonable efforts to preserve the marriage if marital difficulties arise.

COUNSELOR

Louisiana Laws on Community Property and Covenant Marriage

NOTES

This public document was published at a total cost of $1,202.65. 2,000 copies of this

public document were published in this first printing at a cost of $1,083.65. The total

cost of all printings of this document, including reprints is $1,202.65. This document

was published by Office of State Printing, 950 Brickyard Lane, Baton Rouge, Louisiana

70802 for the Louisiana Department of Justice to educate citizens on the laws

regarding community property and covenant marriage under the authority of LA R.S.

9:237. This material was printed in accordance with the standards for printing by

state agencies established pursuant to R.S. 43:31.