Community Property

Community and Separate Property in Louisiana

In Louisiana, property and assets acquired during the marriage are typically considered community property and are subject to partition (or division) upon divorce. Davidson will assist in accurately identifying and valuing marital assets and debts. Davidson may negotiate a fair division of property, ensuring that you receive your entitled share and that any division is equitable under Louisiana law.

Separate property belongs to one spouse, usually because this was acquired before the marriage occurred. For example, if you buy a car before getting married, the vehicle will generally be characterized as separate property. Separate property can also be created if you are gifted or inherit property during the marriage. However, property acquired before the marriage can become community property if separate property is commingled.

Frequently Asked Questions

What is community property?

In Louisiana, all property acquired during the marriage is presumed to be community. A party may claim property as separate during the partition of assets, but that party must prove the property belongs to them separately.

What happens if community property and separate property are comingled?

Sometimes—even inadvertently—parties mix their separate and community estates. Imagine your aunt left you $50,000 when she died, and you used some of that money (as well as funds from a joint savings account that grew during your marriage), to make a down payment on a house. Since both separate and community funds were used, the home you purchased will be both community and separate property, to the extent and proportion that the property was purchased with separate and community property funds. In the event of divorce, a reimbursement claim should be claimed for the separate property that benefitted the community property regime.

Is a gift from a spouse separate property?

If a spouse gifts their separate property to their spouse during the marriage, that becomes the separate property of the receiving spouse. Likewise, property acquired after the dissolution of marriage is separate property. It is important to note that the characterization of separate property does not occur when two legally married parties cease living together or when two legally married parties file for divorce.

May spouses request reimbursements?

When a court divides property, it deals with three marital estates: each spouse’s separate estate and the community estate. After the court determines which assets belong to each estate, the court, if requested, will look to see if any of the marital estates are entitled to reimbursement.

How does a spouse prove the property is separate?

In Louisiana, all property in a divorce is presumed to be community, a reimbursement claim must be proven by the requesting party, which can include documentary evidence, testimony, or a forensic expert. A common example of a reimbursement claim is as follows: Husband owns a house before marriage, and it is Husband’s separate property. At the start of the marriage, the balance owed on the mortgage was $100,000. During the marriage, the parties’ income (community property) paid $30,000 towards the balance owed on the mortgage, so when Husband and Wife get divorced, Husband will owe $70,000 of the house. Because community property was used to pay off the debt on Husband’s house, the community estate would have a reimbursement claim for the portion of the mortgage payments made during the marriage towards the principal balance owed.

What happens to my retirement account in a divorce

Retirement accounts often require an analysis because even if the plan was obtained before the marriage, the portion contributed, and the interest accrued can still be considered community property. If you or your spouse owned retirement accounts before getting married, there might be claims on the value of the contributions made as well as the interest accrued during the marriage. A simplified way of thinking about it is, you will need to determine the value of the plan at the time of the marriage and subtract it from the plan’s value at the time of the divorce. The community estate would have a claim for this portion of the account. In most cases, a Qualified Domestic Relations Order is required. However, it’s not always that simple. Davidson can help you understand how to partition a retirement account.

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