Community Property

Question 1

matrimonial agreement form requirements

Answer 1

by authentic act OR by act under private signature duly acknowledged by both parties

Question 2

postnuptial agreements form requirements

Answer 2

by authentic act OR by act under private signature duly acknowledged by both parties
AND
judicial approval based on showing that both parties understand agreement and its in best interest of both parties
UNLESS
moving from seperate to community property regime OR within 1 year of previously married couple moving to louisiana

Question 3

marital agreements may not

Answer 3

violate public policy – this includes that they cant limit, with respect to third parties, the right that one spouse has alone to alienate the community property

Question 4

difference between community property and co-ownership

Answer 4

In co-ownership, you can sell your part but not the whole asset; in community property, you can sell the whole thing, but not your part

Question 5

seperate property includes de jure =

Answer 5

 Property acquired by a spouse in advance of the community regime
 Property acquired with separate property, OR with a mix of separate and community property where the community property contribution is inconsequential in comparison with the separate property used
 Inheritance or donation from a third party to a spouse individually
 Damages one spouse is awarded against the other for breach of contract or a claim for fraud or bad faith management of community property
 Damages a spouse is awarded in connection with his separate property
 Things a spouse is awarded in a voluntary partition

Question 6

anything in possession of either spouse during marriage is presumed

Answer 6

to be community property

Question 7

mixed seperate/community title permitted only when

Answer 7

i get a share of ownership as seperate property, and then later acquire full ownership: inherit 1/3 of house, buy out siblings with community property: house is 1/3 seperate, 2/3 community.

Question 8

rule saying that house bought with seperate property money is seperate is called

Answer 8

principal of real subrogation

Question 9

way to keep seperate property seperate by a writing

Answer 9

estoppel based on double declaration in an act of acquisition:
spouse makes, in purchasing a thing, a double declaration: both that funds being used to buy a thing were separate property AND that the thing he’s buying is to be separate property.

Question 10

interspousal donations

Answer 10

normal DIV requirements for donation from community to seperate property
donation from seperate property to community must say that donation is to community or to other spouse’s seperate property – mustbe in authentic act

Question 11

co-mingling

Answer 11

applies when you cant trace which funds in a bank account are from seperate proeprty (inherited from aunt millie) versus community property (wages) and have become co-mingled. then whole account becomes community.
BUT: if different sources of funds traceable, seperate out into separate and community

Question 12

consequentiality test

Answer 12

bought thing using both separate and community property. Range of 10%-20% of community property used is sketchy. Less than 10% of funds is inconsequential; more than 20% is likely consequential and the thing will be classified community property

Question 13

credit acquisition inception of title classification rule =

Answer 13

classification of ownership is fixed at moment of acquisition of title.
for houses, this usually means that the source of the down payment dictates the type of ownership, even if other type of funds used to pay mortgage.
reimbursement claim may exist for mortgage payments from community when house is seperate property

Question 14

pensions

Answer 14

for defined contribution plans, $s contributed during marriage are community property.
for defined benefit plans, fraction of total pension attributed to the years within the community are community property
note: ERISA controls federal pension plan payment at death

Question 15

copyright

Answer 15

copyright of property is seperately owned; revenues from copyrighted material are community property

Question 16

management of community

Answer 16

principle of equal management

Question 17

spouse must obtain concurrence to encumber or alienate:

Answer 17

o Immovables
o Furniture or furnishings while located in the family home
o All or substantially all of the assets of a community enterprise
o Movables issued or registered in aa spouse’s name
o All donations of community property, UNLESS the donation is a usual or customary gift commensurate with the economic position of the spouses

Question 18

spouse may solely manage property when

Answer 18

spouse is sole manager of community enterprise
movable registered in one spouse’s name alone (car)
partnership and LLC interests in one spouse’s name
contractual relationships in one spouse’s name (privity)

Question 19

community terminates at

Answer 19

• death of spouse
• declaration of death
• declaration of nullity of marriage
• judgement of divorce
• judgement separation of property
• matrimonial agreement that terminates the community property regime

Question 20

when community terminates

Answer 20

ex/spouses are treated as co-owners AND subject to duty to preserve and prudently manage the assets

must get concurrence for all transactions, except movables registered in name alone. can get judicial authorization to act without concurrence on showing that concurrence is arbitrarily denied OR spouse is unavailable

Question 21

obligations

Answer 21

are presumed community

obligationos incurred for seperate property may be seperate ONLY IF it doesnt also benefit the family

Question 22

reimbursement

Answer 22

owed from one spouse to another, when there is a mismatch between classification of asset and funds used

default = get back 1/2 of expended funds

note: special rule of accession: spouse who owns land, owns improvements

Question 23

Spouse who uses separate property in a way that benefits the other spouse’s separate estate

Answer 23

Entitled to the value of the separate property at the time at which it was used
100% reimbursement

Question 24

Spouse uses something separate for community purpose (to satisfy a community obligation)

Answer 24

o Spouse uses inheritance from grandma to pay the note on the family farm
o Spouse gets reimbursed ½ of the funds used
o There is a limitation of liability (cap) = the reimbursement for use of separate property will only be paid up to the limit of the paying spouse’s ½ of the community property
 Unless the payment was for ordinary and customary expenses of the marriage or the education, support and maintenance of children
 For corporeal movables that must be registered (ie, cars), the reimbursement claim may be reduced by the value of exclusive use of the community asset

Question 25

use of community property to pay a separate obligation

Answer 25

spouse getting reimbursement gets back ½ of the money used to support separate property
UNLESS payment was for expenses of family home, if separate property then

only allow reimbursement of ½ of the funds that were applied to the principal of the loan but NOT funds applied to the interest of the loan

Question 26

uncompensated labor of spouse on separate property reimbursement

Answer 26

eligible for 1/2 of the increase in value of the thing attributable to the labor

spouse with separate property may rebut bu showing that increase in value was due to another factor

Question 27

reimbursement for education expenses

Answer 27

• Must show: that spouse paid educational expenses in anticipation of the family benefitting from higher earning AND
• That it caused a detriment to the paying spouse AND
• That the receiving spouse received a benefit

Question 28

partition

Answer 28

voluntary partition or judicial partition:

voluntary partition is a contract, subject to vitiation for normal vices
judicial partition is based on allocation of assets

Question 29

creditors rights to seize property

Answer 29

can seize incurring spouse’s seperate property AND the entirety of the community

Question 30

opting out of community unilaterally

Answer 30

may go to judge and show that spouse is mis-managing community (fraud, fault, neglect, incompetence, disorder of the affairs of the other person – may include just them losing their job) OR
spouse is absent person OR
spouses are divorcing and have lived seperately for 30 days or have lived seperately for 6 months

Question 31

conflicts cases with community property

Answer 31

movables - goverened by law of state where spouses domiciled when acquired
immovables - governed by LA law if immovable is in LA
OR
if couple is going through divorcing and partition in LA (quasi-community)

Question 32

marital portion

Answer 32

cannot opt out

• If decedent had no children, then marital portion is ¼ of estate
• If fewer than 3 kids, then gets usufruct over ¼ of the estate
• If he had 4 or more kids, a child’s share in usufruct
• Capped at $1 million

Question 33

reservation of fruits of seperate property

Answer 33

may be done unilaterally if spouse gives notice to other spouse before filing declaration of reservation of fruits in parish where seperate property is located

Question 34

voluntary partition timing

Answer 34

may happen at any time during marriage

Question 35

obligations and expenses under seperation of property regime

Answer 35

while under a separation of property regime each spouse contributes to family expenses in proportion to his means. Spouses are also joint and severally liable for obligations incurred by either spouse for necessities obtained for either spouse or the family during a separation of property regime.