Community Property

Question 1

Matrimonial Agreement

Answer 1

Contract establishing a regime of separation of property or modifying or terminating the legal regime. (before or during marriage)

Question 2

Legal Regime

Answer 2

“Community of acquets and gains” - community property regime

This is the default regime in effect for spouses domiciled in LA who have not executed a matrimonial agreement.

Each spouse owns a present undivided 1/2 interest in the CP.

A spouse may not ALE his undivided interest in the CP prior to termination of the regime. ALE to a 3P of a portion of the CP in full ownership is allowed.

Question 3

Presumption of Community

Answer 3

Property in the possession of a spouse during the existence of a CP regime is presumed to be community.

Rebutted upon a showing by a preponderance of the evidence of the separate nature of the property.

Question 4

Classification of Property

Answer 4

Fixed at the moment of acquisition of the asset
Acquired before marriage = SP
Acquired during marriage = presumed CP
Acquired after divorce or death of spouse = SP

Question 5

Real Subrogation

Answer 5

When a thing forming a part of the SP or CP is converted into another thing, the mass of the SP or CP is not diminished.

The new thing takes the place of the old.

Question 6

Commingling

Answer 6

Simply mixing community and separate funds together does not result in a loss of ownership of either funds.

Indiscriminate commingling, such that the funds can no longer be traced as SP or CP, will result in community classification.

Question 7

Separate Property

Answer 7

1. Property acquired prior to entering the CP regime
2. Property acquired with SP or with a mixture of SP and CP where CP is inconsequential in comparison with the SP used
3. Inheritance or donation from a third party to a spouse individually
4. Damages one spouse is awarded against the other for breach of contract or a claim for fraud or bad faith management of CP
5. Damages one spouse is awarded in connection with his SP
6. Things a spouse is awarded in a voluntary partition

Question 8

Community Property

Answer 8

1. Property acquired during the existence of the CP regime through the effort, skill, or industry of a spouse
2. Property acquired with CP or with a mixture of separate and community property where the CP is consequential in comparison with the SP used (around 10-20%)
3. Property donated to the spouses jointly – the key is the donor’s intent
4. Natural and civil fruits of CP
5. Damages awarded for loss of CP
6. Everything the law doesn’t say is SP

Question 9

Earnings

Answer 9

Property acquired through the effort, skill, or industry of either spouse is CP if effort was expended during the existence of the CP regime

Question 10

Fruits and Revenues of SP

Answer 10

CP unless a spouse reserves them as his SP by recording the reservation and providing the other spouse with a copy of the reservation prior to filing

Question 11

Interspousal Donations

Answer 11

If undivided interest in CP - becomes SP of donee spouse

If part of his SP, with stipulation that it become part of the CP - CP (if no stipulation, then SP of donee spouse)

Transfer by onerous title must be in writing. Transfer by gratuitous title must be made by authentic act.

Question 12

Acquisition of Asset with Separate and Community Funds

Answer 12

Classified as CP unless the community portion is inconsequential compared to the separate portion

10-20% = consequential

Question 13

Credit Acquisitions

Answer 13

If asset purchased by a spouse with a down payment consisting entirely of separate funds and title and ownership transfers to the buyer immediately, it is SP and remains separate even if CP later used to pay off part of loan.

If buyer does not acquire ownership of thing until after the final payment (bond for deed K), property is CP if community funds are not inconsequential

Question 14

Acquisition of Distinct Undivided Interests

Answer 14

if spouses owns undivided interest in thing as SP and acquires additional undivided interest as CP, original interest remains SP and subsequently acquired interest is CP.

If spouse owns undivided interest in thing as CP and acquires additional interest in thing as SP, original interest remains CP and subsequently acquired interest remains SP.

Question 15

Double Declaration

Answer 15

A declaration in an act of acquisition that things are acquired with separate funds as the SP of a spouse may be controverted by the other spouse unless he concurred in the act, or by forced heirs & creditors of the spouse, despite concurrence by the other spouse.

Even if DD was false (community funds were used), an ALE of the thing by onerous title may not be set aside on the ground of falsity of the DD.

Question 16

Pensions

Answer 16

Deferred compensation - depends on when the effort, skill, or industry was performed

1. defined contribution plans
2. defined benefit plans
3. federal preemption
4. social security benefits

Question 17

Defined Contribution Plan

Answer 17

what the employer and employee have contributed to the plan, plus interests accrued

Question 18

Form of matrimonial agreement

Answer 18

authentic act, OR
act under private signature duly acknowledged by both spouses

Must be recorded to be effective against 3P