What is separate and what is community property?
can I expect to settle?
How will the property be divided?
Many times clients come to attorneys
and state that they have "an uncontested divorce."
Despite the fact that numerous parties may be in agreement
as to what may happen during a divorce, and feel that they
will be able to get along and come to an agreement, usually
those "uncontested divorces" become extremely contested
once the issues of child custody and support are engaged.
The other issue that generally causes
an uncontested divorce to become contested is what happens
during community property settlements. The community property
settlement itself is a separate and independent legal proceeding
that is litigated completely aside from the actual divorce
and or child custody and support proceedings.
Two things must be accomplished: 1) terminate
the community property regime of law that previously existed
between married persons so that they will stop incurring community
debt and assets; and, 2) split up the property they owned
together under the community property laws that applied to
them while married.
The community law "regime"
is terminated by death, divorce, or Court approval even while
still married. The community must be terminated before assets
and debts can be divided as separate property.
After the community regime is terminated,
a community property partition petition must be filed to ask
that Court divide the assets and debts of the parties so that
a fair outcome is achieved. Each party always seems to have
a different idea of what "fair" is and there are
often disputes about values of certain property. Also, bitter
disputes may arise if in fact one of the parties has separate
property that has been used to help pay for community property
such that funds have become "commingled." At any
rate, all of these issues require a complete and thorough
legal analysis based on the facts, records, and the behavior
of the parties during the marriage and during the separation
period in regard to the handling of assets and debts, etc.
What is separate
and what is community property?
One of the biggest areas of contention
in property partition suits is the classification of certain
property. For example: Is my engagement ring my separate property
or is it community property? What about property I've inherited
from my parents, is it separate property even though I deposited
the money into a joint checking account and we spent all of
it on a vacation and to remodel the kitchen? What about our
automobiles, does it matter whose name the car or truck is
in on the title to the vehicle?
As you might expect, all of these questions
require a lawyer's analysis as to whether or not a property
is community property or separate property. The biggest contention
regarding these two classifications is whether or not one
party is entitled to a full reimbursement of their separate
property or whether or not they have to give half of their
separate property to the other spouse in the property partition.
The only way that any complete evaluation of separate and
community property can be made is after meeting extensively
with an attorney to discuss the facts of your case. Assets
need to be classified so the client can take advantage of
every possible legal argument to increase their award in a
settlement or judgment.
When can I expect to settle?
Generally, community property partitions
are done after a divorce is obtained. Louisiana law provides
the parties, however, with the option of filing a motion with
the Court to terminate their community property regime if
in fact the parties have been separate and apart for 30 days
Also, parties can petition the Court
for a separate property arrangement even if they intend to
remain married. Sometimes, one of the spouses has a spending
problem, or is beset with some other problem concerning mismanagement
of the community assets such that one of the spouses simply
cannot remain married to that spouse unless a separate property
regime is established to protect the responsible spouse from
the irresponsible behavior of the other spouse.
Under such circumstances, parties can
petition the Court to terminate the community property regime
and establish a regime of separate property and remain married.
At that time the parties will also divide their community
property just as if they were getting divorced and a judgment
will emanate from the Court that will provide the parties
with property rights to their now divided and separate property.
That document can be filed in the public records to place
third parties on notice that any debts of either spouse will
be the debts of that spouse alone. The spouse that incurred
the debt will be solely responsible for the debt, etc.
With all that said, there are numerous
methods within which to terminate the community property,
and all situations can be discussed with your attorney.
How will the property be divided?
If the parties will not come to an agreement
on how to divide their community property, the Court will
make determinations as to how to divide the property. Louisiana
law provides Courts with direction and instructions as to
how to go about trying to value and settle community property.
Louisiana law provides Judges with wide discretion to make
all orders necessary, including ordering some assets to be
As one might imagine, many times when
spouses separate or divorce they can no longer afford to maintain
the home that they previously lived in. With two incomes they
could afford the home they were living in, but on their own,
neither party can pay the house note or purchase the home.
In those circumstances, there is only one option and that
is to sell the home and split any equity between the parties
that may have resulted (or any debt if only debt results).
With regard to the valuation of the home, many times the parties
will have to hire expert appraisers to provide that information
to the Court if the parties cannot agree on a value of the
Accordingly, and as to all assets including
the home, the Court will make determinations as to what the
value of all said property is, and then divide the property
in such a way so as to liquidate the community property and
provide one half of all community property (or funds from
a sale) to each of the parties. Of course, if there is separate
property involved, then the party who owns the separate property
will receive the entirety of that property outright during
the partition and it would be included in any determination
by the Court. If there is a dispute about whether the property
is community or separate, then the Court will decide that
issue as well.
One of the most intriguing ways of settling
community property that many Courts employ is an auction,
but it is not your typical auction. The parties will have
provided the Court with a detailed descriptive list placing
all of the assets of the community on the list. Each party
will take a turn going down the list sequentially, item by
item, and will take turns placing a value on each said item.
Once a party places the value on an item, the other party
can either buy the item for that price or force the person
who named the price to purchase the item themselves. The parties
go through the list, alternating item by item in such fashion
until the list is complete and the property has been distributed.
This is but one of numerous tools and methodologies by which
community property can be settled.
Of course, there are numerous complicated issues involved
in community property settlements and a complete discussion
of what one can expect is far beyond the scope of what can
be addressed here.