Divorce Lawyer: Donating a Community Interest to the Other Spouse

When a spouse hires a divorce lawyer, there are often property issues to divide. Sometimes, the inter-workings of their shared ownership interests can be quite complex. That said, in Louisiana we have two ways of looking at property that a spouse may own while married. One way is "community property." This is typically property that is earned by the spouses while they are married. The other way is "separate property." This might be property that is earned by one spouse before the marriage, or property that is obtained in a manner that makes it separate by virtue of Louisiana law. Please remember that the above description of community and separate property is very general and not all-inclusive. We are speaking in generalities for the purpose of this articles topic: from the perspective of a divorce lawyer, what happens when one spouse donates his or her ownership interest in a community property right to the other spouse of the marriage.

Let's say that Seth and Samantha get married. After they have been married for roughly two years, Samantha's grandmother dies of old age. After the funeral is over, it is revealed that Samantha's grandmother died with a will. As the family looks to the testament's decree's, they are all surprised to find that the incredibly opulent and large mansion that Samantha's grandmother inhabited has been left to Samantha and Seth. The will specifically says that the house goes to "Samantha and Seth to share equally in their marriage and community regime."

This transfer of property has caused quite a bit of acrimony amongst Samantha's family. They are upset because Samantha's grandmother hardly knew Seth. In fact, he had only met her twice, and the second time happened to be the day before she drew up her will. Many people in the family think that the house should be more fairly divided.

Because of the language in the will, a divorce lawyer might find that there is a high likelihood that the house will be considered community property. Although an inheritance to one spouse is normally separate property (under Louisiana Civil Code article 2341), in this case Samantha's grandmother specifically devised the house to both Seth and Samantha.

Let's say that Seth is not happy with having an ownership interest in the old grandmother's house either. He has seen how much drama it is causing between Samantha and her family. Also, Seth does not think he really deserves, or even desires, to have an ownership interest in the house. One thing Seth can do is make a legal act of donation of his community share of the house to Samantha. If effective, this could convert the house from community property to separate property, residing solely in the control of Samantha. (For a divorce lawyer, one other way is to have a matrimonial agreement.) The relevant Louisiana Civil Code article is 2343 "Donation by Spouse of Interest in Community."

Article 2343 clearly states that "The donation by a spouse to the other spouse of his undivided interest in a thing forming part of the community transforms that interest into separate property of the donee."

Will Beaumont is a divorce lawyer in New Orleans. This article is purely informational and not legal advice. If you have a question, contact an attorney for more information.