Liquidated Damages as Community Property – The New Rule in Orgeron v. Orgeron

Introduction

On 27 June 2025, the Supreme Court of Louisiana delivered a landmark decision in Kelly O. Orgeron v. Edward J. Orgeron, Jr., No. 2024-C-00676. The dispute arose from a $16.949 million “golden-parachute” payment LSU made to its former head football coach, Edward “Ed” Orgeron, after his 2021 termination without cause. Ed filed for divorce 43 days after LSU and he signed an initial Binding Term Sheet that promised this payout upon termination. Both the trial court and the First Circuit Court of Appeal had classified the post-divorce payout as Ed’s separate property. The Supreme Court reversed, holding that the right to receive the liquidated-damages payment became a community asset the moment the Binding Term Sheet took effect during the marriage, notwithstanding that the money itself was received years later, after termination of the matrimonial regime.

By so doing, the Court announced a significant new rule for community-property law in Louisiana: contractual severance or liquidated-damages rights that vest during the community belong to the community—even if the sums are paid after the community ends.

Summary of the Judgment

Writing for the majority, Justice Hughes concluded:

The January 14, 2020 Binding Term Sheet was, by its own language, “legally binding,” not merely an “agreement to agree.”
The subsequent long-form Employment Agreement (executed in April 2020 but also effective 14 January 2020) incorporated and ratified the Term Sheet’s termination-without-cause clause.
Because both contracts took effect before Ed filed for divorce, the contractual right to liquidated damages was acquired during the regime of community of acquêts and gains and is therefore presumptively community property under La. C.C. art. 2340.
Liquidated damages are not “wages for future work”; rather, they function as an insurance-type asset triggered by termination. Consequently, they are divisible community property, in the same manner as other contingent contractual rights.
The Court awarded Kelly one-half of the net payout: $8,134,500.

Two justices dissented (McCallum, joined by Cole) arguing that the payout is merely deferred salary for post-community services and therefore separate property. Justice Bleich, ad hoc, concurred, emphasizing the fiduciary duties of a managing spouse.

Analysis

1. Precedents and Authorities Cited

Lambert v. Maryland Casualty Co., 418 So.2d 553 (La. 1982) – guiding principles for contract interpretation: every clause must be given effect.
Louisiana Civil Code Articles – 1983 (contracts have the effect of law), 2045–2050 (interpretation rules), 2340 (community-property presumption), 2354 & 2369.3 (spousal fiduciary duties).
Cosman v. Cosman, 360 So.3d 892 (La. App. 1 Cir. 2023) – deference to trial courts on factual classification; invoked in dissent.
Comparative cases on compensation classification: Due v. Due (contingent-fee contracts), Lanza v. Lanza (insurance renewals), Ross v. Ross, Kees v. Kees (severance pay), Statham v. Statham (post-community wages).

The majority relied less on specific Louisiana precedents and more on Civil Code first principles: if a right is acquired during the community, it is part of the community unless expressly separate.

2. The Court’s Legal Reasoning

Binding Nature of the Term Sheet – The Court held the Term Sheet’s express language (“legally binding,” “enforceable in a court”) eliminates any doubt that it created immediate, vested obligations. The need for a later “long-form” agreement did not suspend enforceability.
Effectiveness During the Community – Because the Term Sheet and Employment Agreement were both effective 14 Jan 2020 and LSU’s Board ratified them before the divorce petition, the contractual right was “acquired” while the community existed.
Nature of the Right – The Court distinguished liquidated damages from wages: (a) they are owed even if the coach never works another day; (b) they compensate for LSU’s early termination, functioning like insurance; (c) payout is formulaic but not contingent on future labor.
Community-Property Presumption – Under art. 2340, anything in a spouse’s possession during the community is presumed community; Ed failed to rebut that presumption as to the contractual right.
Fiduciary Considerations – Concurring opinion stressed that Ed, as managing spouse, owed Kelly a fiduciary duty not to undermine community assets; his agent’s attempt to back-date or relocate the effective date underscored that duty.

3. Impact of the Decision

Severance & Golden-Parachute Clauses – Contractual severance rights negotiated during marriage will likely be treated as community assets, even when payable years later.
Executive Compensation & Stock-Option Plans – Options, restricted stock, and other contingent rights may be swept into the community if the right vests during marriage, regardless of the vesting schedule for payment.
Incentive for Prenuptial Planning – Employers and high-income employees may seek explicit separate-property clauses or matrimonial agreements to avoid future disputes.
Trial Strategy – Litigants will focus heavily on the effective date and language of employment and separation agreements.
Possible Legislative Response – The legislature may clarify Articles 2338-2339 to address post-community severance or to adopt bright-line rules distinguishing deferred wages from newly created contract rights.

Complex Concepts Simplified

Community of acquêts and gains – Louisiana’s default marital property regime: most property acquired during marriage is co-owned 50-50.
Binding Term Sheet vs. “agreement to agree” – An “agreement to agree” is generally unenforceable because essential terms are missing, but a document that declares itself “legally binding,” sets essential terms, and contemplates later formalization is enforceable.
Liquidated damages – A sum fixed in advance by contract to compensate one party if the other breaches; takes the place of proving actual damages.
Termination without cause – Employer ends employment for convenience (not for misconduct). Contract often spells out severance/penalties.
Fiduciary duty of spouses – After divorce, the managing spouse must still protect former community assets under La. C.C. art. 2369.3; breaches can trigger damages.

Conclusion

Orgeron v. Orgeron redraws the line between community and separate property in Louisiana by focusing on when the underlying contractual right arises, not when cash is ultimately received. The decision harmonizes contract-law principles with the community presumption, affording spouses an undivided interest in golden parachutes, severance packages, and similar contractual protections negotiated during marriage. While dissents warn of “result-oriented” reasoning and predict administrative complexity, the majority’s rule prioritizes certainty in matrimonial regimes: a vested right is community unless clearly excluded. Practitioners must now scrutinize employment contracts more closely, and spouses may wish to negotiate matrimonial agreements that expressly allocate such contingent rights.