LEGAL CORNER: If our self-typed premarital contract isn’t the proper form, is the entire contract void?

KPLC 7News at Noon - LEGAL CORNER Sept. 25, 2019

LAKE CHARLES, La. (KPLC) - Submit your questions to news@kplctv.com. Civil matters only, please.

Question #1: After I found out that my husband was having an affair, I moved out of the community home and later filed a petition for divorce and requested rent for his exclusive use of the home. We agreed that I would be reimbursed when the community property is divided and he changed the locks on the doors. Now, he refuses to pay because I was not denied use of the home. I want my money!

ANSWER: And you are entitled to be reimbursed. Retro-active awards of rent, that has been deferred to the trial of the community property partition, is allowed. Also, the law does not require that you demand use of the home first and then be denied in order to preserve a rental reimbursement claim, especially when the other spouse was aware of your claim and agreed to pay upon the settlement of the community property.

THE LAW: Averill v. Averill, 18-0299 (La. App. 1 Cir. 9/21/18), ____ So.3d ____, 2018 WL 4520246. After Ms. Averill found that Mr. Averill was having an affair, she moved out of the community home and later filed a petition for divorce, wherein she requested rent for his exclusive use of the home. He subse-quently filed an answer and reconvention-al demand and sought use and occupancy of the home, or alternatively rent. The parties entered into a consent judgment granting Mr. Averill use and occupancy of the home and deferring Ms. Averill’s re-imbursement claim for rent until the parti-tion. Following the partition and an award of rent to her, Mr. Averill appealed, argu-ing that the trial court erred in awarding her rent since she had not requested use of the home and been denied. The appellate court held that La. R.S. 9:374(C) has been amended since McCarroll v. McCarroll, allowing retro-active awards of rent when that issue has been deferred to the partition trial. Further, the court found that the present version of La. R.S. 9:374(C) does not require that a party demand use and be denied in or-der to preserve a rental reimbursement claim. Further, Mr. Averill was aware of her claim and that it was deferred. Finally, he had changed the locks and moved his girlfriend into the home, and the court found that under such circumstances she did not need to request use and occupancy in order to preserve her rental claim, as he had denied her use of the home by such actions.

Question #2: Before we married, my fiance’ and I typed up a premarital contract and we both signed it. We thought we covered all our bases, but now we are being told that it is invalid because it is not in proper form. Does this mean that the entire contract is just void?

ANSWER: In Louisiana, both are required to sign the agreement before a notary, and two witnesses. It may not be entirely void if you included what is legally known as a severability clause. This simply states that the invalid provisions are ignored, and the remainder of the agreement remained enforceable. However, you may not have known to do this, therefore, an Attorney would need to review the contract to determine if the entire agreement or only a part of the agreement is enforceable.

THE LAW: In Louisiana, the couple must put its prenuptial agreement in writing, and both spouses must sign the contract. The spouses are required to sign the agreement before a notary, and two witnesses must also sign it. The couple must collect all signatures before the marriage.

Brady v. Pirner, 18-0556 (La. App. 4 Cir. 12/5/18), 261 So.3d 867.Although the parties’ premarital contract was invalid as a matrimonial agreement because it was in an improper form, it was nevertheless a valid and enforceable contract, in proper form for a contract, regarding certain matters contained within the agreement. Because there was a severability clause, the invalid provisions were ignored, and the remainder of the agreement remained enforceable as the agreement was not dependent on the invalid portion, which provided for a separate property regime. The court stated, “[T]he couple had distinct causes and multiple principal objects for consenting to the Agreement other than the establishment of a separate property regime.”

QUESTION #3: As the father, me and the grandmother of my children were in trial court about the custody of my children. We were both named as joint custodial domiciliary parents. As the father, I should have the authority over my children. But the court order does not allocate the legal authority and responsibility between us in its joint custody order. Does she have equal authority as I do as their Father?

ANSWER: Joint custody obligates each to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority. An appeals’ court decided that there can be only one domiciliary parent. Whomever is determined to be the domiciliary parent, that person has the authority to make all major decisions. Major decisions “normally include decisions concerning major surgery or medical treatment, elective surgery, and schools attended, but not the day to day decisions involved in rearing a child, e.g., bed-times, curfews, household chores, and the like.” You should consult with your Attorney.

THE LAW: Melton v. Johnson, 18-0403 (La. App. 1 Cir. 12/12/18), 2018 WL 6571044 (un-published). The court of appeal stated: “The heightened standard stated in Bergeron is applicable to both changes in legal and physical custody.” Id. at *5. Notably, the appellate court distinguished between “visitation” and “physical custody,” stating that the proper term when parties have joint custody is “‘physical custody,’ not ‘visitation.’” Id. at *6, note 14. Bernard v. Bernard, 18-1149 (La. App. 1 Cir. 2/12/19), 2019 WL 546530.The appellate court reversed the trial court and granted the father and grand-mother joint custody, with the grandmother designated as the domiciliary parent. The court remanded to the trial court “to establish a joint custody visitation schedule.” Id. at *1. (Note that the same appellate panel in Melton in an opinion written by Judge Whipple took careful time in footnote 14 to distin-guish between “physical custody” and “visitation” when parties’ shared joint custody.)J.P. v. A.D., 18-0555 (La. App. 3 Cir. 2/20/19), 265 So.3d 860.The court of appeal reversed the trial court, which had named both parties as joint custodial domiciliary parents, citing the ruling in Hodges v. Hodges, 15-0585 (La. 11/23/15), 181 So.3d 700, that there can be only one domiciliary parent. The trial court also failed to adequately allocate the legal authority and responsibility between the parents in its joint custody implementation order, as also required by Hodges. The court determined that it had a sufficient record before it to render a de novo review and ruling and designated the mother as the domiciliary parent, with authority to make all major decisions stating in a footnote: Louisiana Revised Statutes 9:336 also provides that “[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority.” Major decisions “normally include decisions concerning major surgery or medical treatment, elective surgery, and schools attended, but not the day to day decisions involved in rearing a child, e.g., bed-times, curfews, household chores, and the like.”

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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