LA BAR EXAM CODE I: COMMUNITY PROPERTY Flashcards
What is a matrimonial regime?
A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons.
What are the types of matrimonial regimes?
There are three types of matrimonial regimes: (i) The legal regime is the “community of acquets and gains,” more typically referred to as the community property regime. This is the default regime that is in effect in Louisiana if the spouses have not executed a matrimonial agreement.
(ii) A contractual regime is created through a matrimonial agreement between the parties. The parties’ contract typically establishes a contractual regime of separation of property.
(iii) A modified legal regime can be established through a matrimonial agreement modifying the legal regime of community property.
What is the legal matrimonial regime of community property?
Each spouse owns a present undivided one-half interest in the community property. Community Property applies to spouses domiciled in Louisiana regardless of their domicile at the time of marriage or the place of celebration of the marriage. There exists the rebuttable presumption that all property in possession of the spouse in a community property regime is community.
When is property classified in Louisiana?
Classification is typically fixed at the moment of acquisition of the asset.
What does community property apply to?
Community property is all property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse, etc.
Fruits and revenues of separate property are community property under the regime.
What is a reservation of fruits?
A reservation of fruits on separate property in a marriage requires an authentic act or act under private signature duly acknowledged, filed in the public records, and provided to the non-filing spouse prior to filing. The reservation effects the fruits as separate property.
What is separate property?
Separate property is property acquired by a spouse prior to the establishment of a community property regime. Property inherited by a spouse is always that spouse’s separate property. No injection of community funds or labor can change that classification, although they may lead to a reimbursement claim.
How is community property managed?
Spouses are not mandatories of each other, they are free to control community property EXCEPT when concurrence of both spouses is required. For example, alienation, encumbrance, lease of immovables, and donations other than a customary gift commensurate with economic position of the spouses.
What happens when separate and community property are mixed to acquire another piece of property?
When parties contemporaneously mix separate and community funds to purchase a new asset, the consequentiality test governs. The asset will be community if the community funds were consequential (i.e., less than 30%) in comparison with the separate funds used.
Alternatively, what happens when separate and community property are mixed in a credit transaction?
Credit acquisitions in Louisiana are governed by the inception of title rule. The Louisiana Supreme Court has held that when a home is acquired on credit, the source of the funds used to make the down payment (or cash portion of the price) determines classification. The titling of the home in one spouse’s name alone is irrelevant to classification. Likewise, that the couple financed the rest of the purchase with a loan, or may have used funds of a different classification to make note payments throughout the marriage, does not bear on classification.
What causes termination of the legal regime of community property?
The legal regime of community property is terminated by: (i) the death of a spouse; (ii) the declaration of nullity of the marriage; (iii) a matrimonial agreement terminating the community; (iv) divorce of the spouses (or legal separation in a covenant marriage): or (v) judgment of separation of property.
Dead judge divorced M.A. D.
How is reimbursement handled between spouses?
A claim for reimbursement may be asserted only after termination of the community property regime. Reimbursement is made from the patrimony of the spouse who owes reimbursement. The patrimony consists of his share in the community and his separate property.
What types of reimbursement claims can be made and what must be shown to be successful?
Reimbursement claims can be for (i) uncompensated labor contributed to the improvement of the other spouse’s separate property (entitled to one-half), (ii) for funds used to purchase materials that came from the separate property of a spouse, or (iii) for one-half of community funds used to benefit another spouse’s separate property.
To recover reimbursement for (i) uncompensated labor, the claiming spouse must show (a) that community labor was devoted to separate property, (b) that the labor was un-or-under-compensated, and (c) that the labor at least assisted in increasing the value of the thing. If shown, the claiming spouse has a prima facie case, and the burden shifts to the other spouse to defeat the reimbursement claim by proving that some or all of the enhanced value of the thing is not due to the labor of the claiming spouse - absent, a real estate boom, etc., this will be tough to prove.
Regarding (iii) community funds used to benefit separate property, a claiming spouse’s right of reimbursement is limited when it relates to note payments on the family home to 1/2 the funds used to make principal payments only. Funds used to make interest payments are charged to the community and reimbursement is unavailable.
If the claimant spouse was totally or partially uncompensated, to the extent of uncompensation, he is owed 1/2 of the increased value that is attributed to his own labor in improving the thing.
What is a matrimonial agreement?
A matrimonial agreement forms a contractual regime which is typically separation of property.
How is a matrimonial agreement formed?
What is an authentic act? What is an act under private signature?
A matrimonial agreement is formed by (i) authentic act or by (ii) act under private signature duly acknowledged by the spouses.
(i) An authentic act is a writing signed by the parties in the presence of a notary and two witnesses, who must also sign.
(ii) An act under private signature duly acknowledged by the spouses is one signed by the parties who thereafter acknowledge their signatures before a court or in the presence of a notary and two witnesses.
