Divorce Lawyer Answers Louisiana Community Property Questions

One thing many spouses who are about to end their marriage ask their divorce lawyer: what happens to our property? Obviously a married couple can accumulate quite a good deal of stuff over the course of the marriage. Typically, states provide specific laws that deal with how the property should be distributed in the event that the couple cannot agree. Here in Louisiana, we use what is called a "community property regime" framework. This is a tradition that arguably has its base in old Spanish law; and it is also used by present day states that were once under the dominion of Spain like Texas, Arizona, New Mexico, and California.

The basic gist of a community property regime framework is pretty straightforward. Everything that is owned by the parties to a marriage can be classified generally as two different types of property: community property and separate property. A divorce lawyer may look to Louisiana Civil Code article 2338 to define community property as "property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse." This basically means that things acquired by a spouse while married are part of the community property regime. In fact, the Louisiana Civil Code says that there is a "presumption" that things acquired during the course of the marriage are community property. The distinction of community property is important because the spouses share equally the community property fifty-fifty.

Separate property may also be acquired during the course of the marriage, but a divorce lawyer generally looks to the method of acquisition to determine if it is specifically excepted from making it community property. For example, an inheritance granted to one spouse alone is classified as separate property. Also, generally property acquired before the ratification of the marriage is separate property. Separate property is typically not split evenly fifty-fifty by a divorce lawyer. It remains totally and one hundred percent the property of the spouse to whom it belongs.

Something which is community property can be transformed into separate property during the marriage. This is called a "voluntary partition." If the spouses agree, and in doing so they comply with the form and procedural requirements for a voluntary partition, a piece of community property can be separated.

Most times, there are more than a few questions about whether a given piece property is separate or community in a particular situation. Although the laws here in Louisiana make an effort to have the process be a simple one, it not always is. For example, let's say Jim and Jen buy a house after they get married. The house is purchased by both of them, using money that they were making at the time from their jobs. This is probably a clear example of community property. However, let's say that after they buy the house, they decide to build an addition. The addition to the house is approximately forty percent of the size of the previous size of the house. In order to pay for the addition, Jim uses money that he inherited from his deceased parents. This is perfect example of how an injection of separate property into community property can make labeling that property much more difficult for a divorce lawyer.

This article is written to be general information only; it should not be taken as legal advice. Will Beaumont. New Orleans.