Code I - Community Property Flashcards
What is a matrimonial regime?
A system of principles and rules governing the wonership and management of the property of married persons as between themselves and toward third persons.
What are the types of matrimonial regimes?
- Legal regime (default); 2. Contractual regime; 3. Modified legal regime (part legal/part contractual)
What is the form of a matrimonial agreement?
Made by authentic act or by an act under private signature duly acknowledged by the spouses. An act under private signature duly acknowledged by the spouses is one signed by the parties who thereafter acknowledge their signatures in the presence of a notary and two witnesses.
May a minor enter into a matrimonial agreement?
Unless fully emancipated, a minor may not enter into a matrimonial agreement without the written concurrence of his father and mother, or of the parent having legal custody.
When can a matriominal agreement be entered into?
May be executed by the spouses before or duing marriage.
What about matrimonial agreements before marriage?
Prior to marriage, spouses may freely enter into a matrimonial agreement without court approval.
When can spouses enter into a matrimonial agreement during marriage?
Spouses may enter into a matrimonial agreement that modifies or terminates the legal regime (or modificed legal regime) only upon joint petition and a finding by the court that this serves their best interests and they they understand the governing principles and rules.
When can spouses moving to Louisiana enter into a matrimonial agreement?
During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement wihtout court approval.
When can spouses subject themselves to a legal regime?
Spouses may subject themsevles to the legal regime by a matrimonial agreement at any time without court approval.
What may spouses provide for in a matrimonial agreement before or during marriage?
- Contributions; apportion shares; reserve fruits; future property.
What are the limits of a matrimonial agreement?
Spouses may not by agreement: 1. Renounce or alter the marital portion; renounce or alter the established order of sucession; limit the rights of third persons under the community regime. 2. Courts may strike down any agreement that violates a rule of public order (as determined by the court). e.g. wife cannot waive her right to interim periodic support, but can waive her right to final periodic support.
Who does the legal regime of community acquests and gains apply to?
Applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.
What is the nature of the legal regime of community acquets and gains?
The legal regime is not a legal entity but a patrimonial mass, that is, a universality of assets and liabilities. The legal reigme does not own property or have obligations. An undivided one-half of the mass forms a part of the patrimony of each spouse during the existence of a community property regime, but the entirety of the assets of the mass is liable to creditors for the satisfaction of separate as well as community obligations of the spouses.
What is the ownership of community property?
Each spouse owns a present undivided one-half interest in the community property.
Is the undivided interest in the community property alienable?
No, a spouse may not alienate, encumber, or lease to a third person his undivided interest in the community or in particular things of the community prior to the termination of the regime. Any attempted disposition by a spouse of his undivided interest in the community or in things of the community by inter vivos act in favor of a third person is an absolute nullity. Can sell a community asset, but cannot sell the undivided half interest.
What is the classification scheme of property of married persons?
Property of married persons is either community or separate.
What constitutes community property?
Any property Acquired through spousal effort; acquired with community things; joint donations and fruits of community property; damages awarded for loss of community property; all other property not classified by law as separate property.
What constitutes separate property?
Property acquired prior to the legal regime; acquired with separate proeprty; inherited property; damages for mismanagement of the community; damages to separate property; things acquired as a result of a voluntary partition.
What is the presumption of community property?
Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove by a preponderance of the evidence showing the property is separate.
When is the classification of property fixed?
Typically fixed at the moment of acquisition of the asset. Need to ascertain the precise moment in time when ownership passes.
What is the general rule with respect to mixed titles in property?
Generally, classification of property as community or seprate is all or nothing proposition.
What are exceptions to mixed titles in property? Acquisition of additional interest, Real subrogation?
- ACQUISITION OF ADDITIONAL INTEREST IN A THING; Spouse owns undivided interest in a thing as separate property and acquires additional interest in the same thing with community property, the original undivided interest remains separate and the subseqently acquired acquired interest is community. The inverse is true for additional acquisitions when the original interest is with community property. 2. REAL SUBROGATION; When property is converted into another thing, the new thing takes the place of the old;
What are exceptions to mixed titles in property? Estoppel by deed, interspousal donations?
- ESTOPPEL BY DEED; a declaration in an act of acquisition that things are acquired with separate funds as the separate property of a spouse (may be controverted if unilateral declaration; 4. INTERSPOUSAL DONATIONS, 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, no special form required. With respect to the inverse, must stipulate that separate property shall be part of the community; if spouse does not comply with form requirements, donation remains valid but transforms the thing into the separate property of the donee spouse.
What are exceptions to mixed titles in property? Inheritance/donations by third parties, comingling?
- INHERITANCE/DONATIONS BY THIRD PARTIES; Property acquired by a spouse through inheritance as well as donation made to one spouse individually are separate. Donor’s donative intent is dispositive. 6. COMINGLING; simply mixing community and separate funds togehter does not result in a loss of ownership of either the ocmmuntiy or the separate funds. Presumption of community complicates. 7. ACQUISITION OF ASSET WITH COMINGLED FUNDS; An asset acquired with comingled funds will be classified as community unless the community portion of the price is inconsequential compared to the separate portion of the price. (less than 20%)
How are earnings classified?
- Property acquired though the effort, skill or industry of either spouse is community property if the effort was expended during the existent of the legal regime. 2. Sweepstakes prize winnings are community property; 3. Portion of contingeny fee contract performed during the existence of the community is community property.
How are fruits and revenues of separate property classified?
Natural and civil fruits of the separate property of a souse, etc. are community proeprty. Minerals produced from a separately owned oil well or mine are treated as fruits.
How can a spouse unilterally reserve fruits and revenues?
Declaration of paraphernality: spouse unilaterally may reserve fruits and revenues as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged.
When is a declaration of paraphernality effective?
- After August 15, 2008–need to provide a copy of the declaration of paraphernality to the other spouse before filing the act. 2. IMMOVABLES Declaration is effective when copy is provided to spouse; filed for registry in the conveyance records of the parish in which the immovable property is located. 3. MOVABLES Copy is provided to spouse, filed for registry where declarant is domiciled.
What happens if copy of declaration of paraphernality is given to spouse AFTER recordation?
Unclear. Inconsistency in the law.
How does one distinguish between earnings and fruits?
Courts will classify the funds as earnings to the extent the spouse expended effort in generating the funds. NO EFFORT: FRUITS (separate); EFFORT: Earnings (community)
How are insurance policy renewal comissions classified?
- Comissions received during the legal regimed are presumed to be community but will be classified as separate to the extent that the earning spouse proves that they do not result from labor/effort expended during the regime. 2. Comissions received after termination of legal regime are not presumed to be community but can be classified if non-receiving spouse shows the comissions are the result of labor,e ffort, skill expended during the regime.
How are corporeal assets acquired over time classified?
- Credit sales–asset purchased with a down payment consisting entirely of separate funds is classified as separate funds even if community funds are later used to pay off the loan. 2. Bond for deed contracts (installment sales)–property will be classified as community if community funds contributed to the acquisition are not inconsequential.
How are pensions plans classified?
- Pensions are community property to the extent attributable to effort expended by the spouse during the existence of the community.
How are definited contributed plans classificed?
Portion of the total pension attributable to contributions made during the legal regime is community. The rest is separate.
How are defined benefit plans classified? (based on length of service)
- Sims approach: Sims formulate is used to compute a community fraction, non-employee’s interest in the employee’s penion is one-half of the community fraction. Nonemployee spouse usually receives nothing until the employee spouse retires or dies.
How is the community fraction formed?
Numerator–portion of the pension attributable to the community; Denominator–portion of the pensions attributable to total creditable service.
What is the Hare exception to Sims formula?
Extraordinary achievements by the employee spouse after termination of the legal regime can affect the allocation of pension benefits if such acievements increase the benefits that would otherwise have been paid.
How are defined benefit plans apportioned using the present value method of apportionment?
- Under the present value method, the employee spouse’s interest in the plan is valued and allocated to that spouse in the partition, and other community assets of an equal value are allocated to the nonemployee spouse.
How are pensions and federal peremptions apportioned?
ERISA can preempt Louisiana community property law.
Are governmental pensions subject to ERISA?
No. Governed by Louisiana State Employees’ Retirement System (LASERS).
How are social security benefits classified?
Benefits are the separate property of the payee spouse.
Is offsetting permitted when federal law preempts classification of community as property?
Yes, when federal law preempts classification of property as community, Louisiana law provides that the other spouse is entitled to receive offsetting award.
Can pension rights be partitioned?
Yes, can be partitioned years after a general partition of other community property if the origianl settlement was silent on the issue. Right to seek partition is imprecriptable.
How are personal injury damages classified?
Damages due to personal injuries sustained DURING the existence of the community by a spouse are separate property. Exception for portion of damages attributable to expense incurred by the community as a result of the injury–those are community property; or damages for lost wages are community property unless community terminates by divorce, e.g., non-injured spouse can only claim worker’s compensations benefits as community while couple are married.
How are life insurance contracts classified?
- Proceeds of a policy payable upon death are the separate property of the beneficiary named in the contract of insurance. 2. Ownership of policy depends on whenn purchased; if purchased during marriage the policy is community.
How are disability payments classified?
Depends on the nature of the benefits, not the source of the premimum payments. If they represent lost income, generally considered community property.
