In order to protect yourself after your marriage has failed and you are on the verge of contacting a divorce lawyer, there are some very important things you need to know. While this blog is not a substitute for legal advice or legal representation, it is an educational foundation with which you can familiarize yourself. Most spouses do not know Louisiana is a community property state. No, it doesn’t mean Louisiana is a communist state! What it does mean is that from the moment of commencement of marriage, a community property regime may have concurrently commenced. This means everything acquired during marriage may belong to both the husband and wife.
In the State of Louisiana, we go even a step further: things in a spouse’s possession during the existence of community property are presumed to be community property. So for example, even if wife withdraws $500 from a joint account to buy a Mardi Gras gown for herself, the gown will be considered community property. Why is this? Louisiana has adopted the principle of real subrogation. This means if community property is converted into another thing, the other thing remains community property.
The same is true for separate property. Separate property is considered property acquired before the marriage and also for property acquired after the marriage through separate property subrogation. So for example, dad opens up a savings account for daughter before she gets married. After she gets married, she withdraws $500 from that same account to buy a Mardi Gras Gown. Because, the $500 was given to her before the community property regime commenced, the $500 is separate property thus making the gown her separate property.
However, a divorce lawyer will probably inform you that things can change when we talk about revenues of separate property. Although a thing maybe separate property, the revenue generated from that separate property is presumed community property during a community property regime. For example, dad buys daughter a house before she gets married. Since daughter acquired the house before marriage, the house is her separate property. Daughter gets married and chooses to rent out her house given to her by her father. During the community property regime, the rent generated on her separate house is considered community property. However, daughter can protect herself by filing a Declaration of Paraphernality, which declares the revenues of her separate property also separate property. This declaration can make things easier on your divorce lawyer.
When filing such on an immovable property, it must be filed in the conveyance records of the parish where the immovable is situated. If a spouse wins money at a casino, the winnings are presumed community property. If the spouse uses separate funds to win money, the separate funds remain separate property, but everything above the separate amount is presumed community property. For example, wife withdraws $500 from separate account and brings it to the casino. She places that $500 on the roulette table and wins an additional $500 for a total of $1000. The $500 winnings are presumed community property.
The last topic we will cover in community property is earnings. Property acquired through the skill and effort of a spouse is community property if expended during the community property regime. For example, if wife is a real estate agent and earns 5% commission on each real estate sale, the 5% earned is community property since it was acquired through the skill and effort of a spouse during a community property regime. So if wife makes $100,000 a month and husband is a stay-at-home couch potato, the $100,000 wife earns a month is nevertheless community property.
The above article is informational. It is not professional legal advice, so please do not view it as such. Will Beaumont is an attorney and is only licensed in Louisiana. He has an office in New Orleans and has an office in Metairie.