Divorce Attorney: When Separate Property is Actually Community Property in Louisiana

In Louisiana we have a system of classifying property that exists between and among married couples.  There are two categories that a divorce attorney focuses on: community and separate.  Community property is property that is shared between spouses, and is divided equally.  Separate property is property that is owned solely by one spouse, and is not at all divisible.  Despite the intentions of the parties to a marriage, many times property that one spouse thinks is separate is in fact still community.  Refer to the following examples.

Let’s say Chuck works as a salesman in New Orleans.  He makes approximately one hundred and fifty thousand dollars a year.  Chuck has been married to Tammy for five years.  Tammy works as a clerk.  Together they bought a house with the money they were earning from their jobs. 

Despite the fact that their marriage is pretty good, Chuck is always looking ahead to the future.  Sometimes he thinks that it is a pretty long shot for he and Tammy to be married ten years from now.  Chuck decides that he is going to put away some money for himself.  He and Tammy have a joint bank account, where they deposit all of their paychecks from their respective jobs.  Chuck secretly opens up another bank account in his name only, and begins surreptitiously putting every fifth paycheck he earns into this new and secret account.  His plan is to keep this money for himself in the event that he ends up hiring a divorce attorney to end their marriage.

Similarly, Tammy has been plotting secretly as well.  Tammy currently does not have a car; she takes the bus to work every day.  While that suffices for work, Tammy likes to take Chuck’s car on the weekends to go shopping in Metairie.  She is worried that if Chuck gets a divorce attorney, she will be left without a car.  So she secretly takes a few dollars out of her joint bank account with Chuck every week, until she has saved up for a modestly priced vehicle.  She purchases it, and keeps it stored at her sister’s house, unbeknownst to Chuck.

Let’s fast forward three years.  Chuck hires a divorce attorney to end the marriage.  As they are arguing about how to split up their property, each reveals to the other their long hidden plots.  After disclosing this, both are satisfied that they have successfully managed to create property for themselves that the other spouse cannot touch.

Unfortunately for them, their respective divorce attorney will probably explain that there is a good likelihood that neither Tammy nor Chuck will be able to claim their property as separate.  Community property is generally property which is earned by either spouse over the course of the marriage.  Separate property is generally property earned before the marriage, or property that has been inherited, or property made separate by virtue of another exception under Louisiana law.  In our example, Chuck’s act of separating money into another account does not change the fact that he earned this money while married to Tammy.  Tammy’s purchase of the car with the money from the joint bank account does not change the fact the funds she used (and thus the car) are community property as well.

The above article is an attempt at providing more information on the law, but it is just that: information.  It is not legal advice.  Will Beaumont has an office in New Orleans, LA.