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the marriage contract was properly recorded and that it was
effective during the years in issue.
We must note, however, that the foregoing discussion, in
response to the parties’ focus, deals with the rights of third
persons, as against the spouses’ movables. However, the question
that we must ultimately rule on is not a matter of what assets
respondent may look to in order to satisfy the liabilities of
either or both petitioners, but rather whether each petitioner
has a present undivided interest in the earnings of the other
spouse, for it is that present undivided interest that is the
foundation of the community property Federal income tax rules.
United States v. Mitchell, 403 U.S. 190 (1971). In that light,
we conclude that Spaht’s and Hargrave’s analysis which closes the
cited section in their treatise (16 Spaht & Hargrave, sec. 8.5)
is particularly illuminating.
Under Civil Code Article 2332, matrimonial agreements
do not have to be recorded to be valid. It may well suit a
couple to deal with third persons as though they were under
the legal community regime, especially as to contracting
debts and alienating assets, but to have a different regime
as between themselves. Some persons may simply want to keep
such matters private. Whatever the reason, there is nothing
to require them to make such agreements public so long as
third persons are not injured in the process.21 Their
heirs, of course, would not qualify as protected third
persons because they would be successors.22 It is required,
however, that the agreement be in writing and that it be
either “made by authentic act or by an act under private
signature duly acknowledged by the spouses.”23
___________________
21 Comment, Marital Property Agreements--Being Creative
with the New Legislation, 43 La. L. Rev. 159 (1982).
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