Code I (Community Property) Flashcards
Legal Regime
default regime in Louisiana
Contractual Regime
through matrimonial agreement (prenuptial or other)
Ownership of Community Property
each spouse owns a present one-half undivided interest
Real Subrogation
thing forming part of the separate property or community property is converted into another thing, the mass of the property is not diminished
New thing takes place of old
Commingling
mixing of sep and comm funds does not result in ownership change UNLESS indiscriminate mingling rendering untraceable
Community Assets Classification Scheme
all property acquired during the existence of the legal regime through:
effort, skill, or industry of either spouse
acquired w/community things or w/community & sep things
donated to spouses jointly
natural and civil fruits of comm prop
damages awarded for comm prop
Separate Assets Classification Scheme
acquired prior to regime
acquired by spouse with sep and comm when comm value is inconsequential
inheritance to spouse individually or donation
damages to spouse individually
other
Earnings
through effort, skill or industry of either is comm prop
Fruits and revenues of separate prop
community unless spouse reserves as separate by recording reservation and providing spouse with copy of reservation PRIOR to filing
Credit Acquisitions
down payment consisting entirely of separate funds and title and ownership transfer to buyer IMMEDIATELY is separate property
Double Declaration
acquisition with separate funds as separate property may be controverted by other spouse unless concurred in act
If it was false (comm prop used) an alienation or encumbrance or lease of thing by ONEROUS title will not be set aside
Defined Contribution Plans
Employee spouse’s contributions during regime determine share of comm property
Defined benefit plan
Sims Formula
nonemployee’s interest in the pension is one-half of the community fraction
numerator of community fraction is portion attributable during regime and denominator is pension attributable to total service
Life Insurance
separate property of named beneficiary
Intellectual Property
revenue generated during regime = comm
outside of regime = separate
Goodwill of Business
reputation, patronage, intangibles
community except to extend it is attributable to personal quality of spouse
Alienation of Comm Prop
concurrence is required for alienation, encumbrance, or lease of community immovables
standing, cut or fallen timber; furniture or furnishing located in family home; all or sub all assets of community enterprise; and movables issued or registered in both names
Donation of Comm Prop
to third party required concurrence of the spouses
usual or customary gift in economic position of spouse at time of donation is OKAY
Ratification
spouse may ratify alienation, encumbrance, or lease by other spouse when not expressly renounced the right to concur
Renunciation of right to concur
spouse may expressly renounce right to concur or participate in mgmt of comm prop enterprise
may be irrevocable for 3 years
Judicial Authorization to Act
act without concurrence of other upon showing action is in best interest of family, spouse arbitrarily refuses to concur, or incapacity or absence of other spouse
Exclusive right to Manage by sole spouse
alienation of movable of business (sole manager)
Registered movables (registered in name)
Mgmt and dispostion of partnership or LLC interest
Contractual Rights
Termination of Legal Regime
- death of spouse
- declaration of nullity of marriage
- matrimonial agreement
- divorce of spouse
- judgment of separation of property
Separate Prop used for other Spouses Separate Property
spouse whose property was used is entitled to reimbursement
constructions permanently attached to land of spouse belong to owner of ground
Separate Property Used for Community
satisfy comm obligation or comm benefit spouse entitled to reimbursement for 1/2 the amount
Reimbursement Rules For Family Home
community funds used to repay purchase loan of spouses separate prop limit reimbursement to 1/2 funds to reduce principal INTEREST is not reimbursed
Comm Prop used for Sep Prop
spouse entitled to reimbursement for 1/2 value
Uncompensated Comm Labor Expended on Separate Prop
entitled to 1/2 increase in value
LOOK are there things outside labor that caused increase
Voluntary Partition
whole or in part changes classification of things they partition does not change matrimonial regime
Judicial Partition
AFTER termination of regime if spouses cant agree on the partition may demand judicial partition
Judicial Partition Procedure
- court classify all assets and obligations
- spouses file sworn list of community assets and obligations w/in 45 days of service
- 60 days to agree or disagree with list
- at trial court values assets and allocates
- if unequal judge awards equalizing payment
Separate Obligations
acquired prior to regime OR during but neither for common interest or interest of other spouse
Creditor’s rights DURING regime
separate or comm obligation may be satisfied from comm and separate property of spouse who incurred obligation
if comm prop used other may have claim for reimbursement
Creditor’s Rights After Termination of Regime
obligation incurred by a spouse during or before regime may be satisfied by former comm and from separate prop of spouse who incurred obligation
Revocatory Action by Creditor (partition)
creditor may bring action to annul voluntary partition of it causes or increases spouse-obligor’s insolvency
Form Requirement of Matrimonial Agreement
authentic act or private signature duly acknowledged BEFORE marriage freely AFTER marriage w/ court approval
Limits on Matrimonial Agreement
- renounce or alter marital portion
- renounce or alter established order of succession
- limit 3ps right that one spouse alone has under to obligate community or alienate, encumber, or lease comm prop
Grounds for Judgment of Separation of Property
- mismanaging spouse (fraud, neglect, incompetence)
- Absent person spouse
- Divorcing spouse (separate and apart 30 days after filing)
- physically separated spouses (6 months)
Reconciliation Affect on Separate Prop
filing petition for divorce or 6 months apart reconciliation reinstates comm prop retroactively
Marital Portion
spouse dies rich in comparison (5:1 or more) surviving spouse entitled to claim
- no children = 1/4
- three or fewer = 1/4 usufruct for life
- 4 or more = usufruct of child’s share for life
never exceed $1m
legacy and payments due as a result of death (life insurance, SS, pension) are deduction from marital portion
