Code I - Community Property Flashcards Preview

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Flashcards in Code I - Community Property Deck (116):
1

What is a matrimonial regime?

A system of principles and rules governing the wonership and management of the property of married persons as between themselves and toward third persons.

2

What are the types of matrimonial regimes?

1. Legal regime (default); 2. Contractual regime; 3. Modified legal regime (part legal/part contractual)

3

What is the form of a matrimonial agreement?

Made by authentic act or by an act under private signature duly acknowledged by the spouses. An act under private signature duly acknowledged by the spouses is one signed by the parties who thereafter acknowledge their signatures in the presence of a notary and two witnesses.

4

May a minor enter into a matrimonial agreement?

Unless fully emancipated, a minor may not enter into a matrimonial agreement without the written concurrence of his father and mother, or of the parent having legal custody.

5

When can a matriominal agreement be entered into?

May be executed by the spouses before or duing marriage.

6

What about matrimonial agreements before marriage?

Prior to marriage, spouses may freely enter into a matrimonial agreement without court approval.

7

When can spouses enter into a matrimonial agreement during marriage?

Spouses may enter into a matrimonial agreement that modifies or terminates the legal regime (or modificed legal regime) only upon joint petition and a finding by the court that this serves their best interests and they they understand the governing principles and rules.

8

When can spouses moving to Louisiana enter into a matrimonial agreement?

During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement wihtout court approval.

9

When can spouses subject themselves to a legal regime?

Spouses may subject themsevles to the legal regime by a matrimonial agreement at any time without court approval.

10

What may spouses provide for in a matrimonial agreement before or during marriage?

1. Contributions; apportion shares; reserve fruits; future property.

11

What are the limits of a matrimonial agreement?

Spouses may not by agreement: 1. Renounce or alter the marital portion; renounce or alter the established order of sucession; limit the rights of third persons under the community regime. 2. Courts may strike down any agreement that violates a rule of public order (as determined by the court). e.g. wife cannot waive her right to interim periodic support, but can waive her right to final periodic support.

12

Who does the legal regime of community acquests and gains apply to?

Applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.

13

What is the nature of the legal regime of community acquets and gains?

The legal regime is not a legal entity but a patrimonial mass, that is, a universality of assets and liabilities. The legal reigme does not own property or have obligations. An undivided one-half of the mass forms a part of the patrimony of each spouse during the existence of a community property regime, but the entirety of the assets of the mass is liable to creditors for the satisfaction of separate as well as community obligations of the spouses.

14

What is the ownership of community property?

Each spouse owns a present undivided one-half interest in the community property.

15

Is the undivided interest in the community property alienable?

No, a spouse may not alienate, encumber, or lease to a third person his undivided interest in the community or in particular things of the community prior to the termination of the regime. Any attempted disposition by a spouse of his undivided interest in the community or in things of the community by inter vivos act in favor of a third person is an absolute nullity. Can sell a community asset, but cannot sell the undivided half interest.

16

What is the classification scheme of property of married persons?

Property of married persons is either community or separate.

17

What constitutes community property?

Any property Acquired through spousal effort; acquired with community things; joint donations and fruits of community property; damages awarded for loss of community property; all other property not classified by law as separate property.

18

What constitutes separate property?

Property acquired prior to the legal regime; acquired with separate proeprty; inherited property; damages for mismanagement of the community; damages to separate property; things acquired as a result of a voluntary partition.

19

What is the presumption of community property?

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove by a preponderance of the evidence showing the property is separate.

20

When is the classification of property fixed?

Typically fixed at the moment of acquisition of the asset. Need to ascertain the precise moment in time when ownership passes.

21

What is the general rule with respect to mixed titles in property?

Generally, classification of property as community or seprate is all or nothing proposition.

22

What are exceptions to mixed titles in property? Acquisition of additional interest, Real subrogation?

1. ACQUISITION OF ADDITIONAL INTEREST IN A THING; Spouse owns undivided interest in a thing as separate property and acquires additional interest in the same thing with community property, the original undivided interest remains separate and the subseqently acquired acquired interest is community. The inverse is true for additional acquisitions when the original interest is with community property. 2. REAL SUBROGATION; When property is converted into another thing, the new thing takes the place of the old;

23

What are exceptions to mixed titles in property? Estoppel by deed, interspousal donations?

3. ESTOPPEL BY DEED; a declaration in an act of acquisition that things are acquired with separate funds as the separate property of a spouse (may be controverted if unilateral declaration; 4. INTERSPOUSAL DONATIONS, donation by a spouse to the other spouse of his undivided interest in a thing forming part of the community transforms that interest into separate property of the donee, no special form required. With respect to the inverse, must stipulate that separate property shall be part of the community; if spouse does not comply with form requirements, donation remains valid but transforms the thing into the separate property of the donee spouse.

24

What are exceptions to mixed titles in property? Inheritance/donations by third parties, comingling?

5. INHERITANCE/DONATIONS BY THIRD PARTIES; Property acquired by a spouse through inheritance as well as donation made to one spouse individually are separate. Donor's donative intent is dispositive. 6. COMINGLING; simply mixing community and separate funds togehter does not result in a loss of ownership of either the ocmmuntiy or the separate funds. Presumption of community complicates. 7. ACQUISITION OF ASSET WITH COMINGLED FUNDS; An asset acquired with comingled funds will be classified as community unless the community portion of the price is inconsequential compared to the separate portion of the price. (less than 20%)

25

How are earnings classified?

1. Property acquired though the effort, skill or industry of either spouse is community property if the effort was expended during the existent of the legal regime. 2. Sweepstakes prize winnings are community property; 3. Portion of contingeny fee contract performed during the existence of the community is community property.

26

How are fruits and revenues of separate property classified?

Natural and civil fruits of the separate property of a souse, etc. are community proeprty. Minerals produced from a separately owned oil well or mine are treated as fruits.

27

How can a spouse unilterally reserve fruits and revenues?

Declaration of paraphernality: spouse unilaterally may reserve fruits and revenues as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged.

28

When is a declaration of paraphernality effective?

1. After August 15, 2008--need to provide a copy of the declaration of paraphernality to the other spouse before filing the act. 2. IMMOVABLES Declaration is effective when copy is provided to spouse; filed for registry in the conveyance records of the parish in which the immovable property is located. 3. MOVABLES Copy is provided to spouse, filed for registry where declarant is domiciled.

29

What happens if copy of declaration of paraphernality is given to spouse AFTER recordation?

Unclear. Inconsistency in the law.

30

How does one distinguish between earnings and fruits?

Courts will classify the funds as earnings to the extent the spouse expended effort in generating the funds. NO EFFORT: FRUITS (separate); EFFORT: Earnings (community)

31

How are insurance policy renewal comissions classified?

1. Comissions received during the legal regimed are presumed to be community but will be classified as separate to the extent that the earning spouse proves that they do not result from labor/effort expended during the regime. 2. Comissions received after termination of legal regime are not presumed to be community but can be classified if non-receiving spouse shows the comissions are the result of labor,e ffort, skill expended during the regime.

32

How are corporeal assets acquired over time classified?

1. Credit sales--asset purchased with a down payment consisting entirely of separate funds is classified as separate funds even if community funds are later used to pay off the loan. 2. Bond for deed contracts (installment sales)--property will be classified as community if community funds contributed to the acquisition are not inconsequential.

33

How are pensions plans classified?

1. Pensions are community property to the extent attributable to effort expended by the spouse during the existence of the community.

34

How are definited contributed plans classificed?

Portion of the total pension attributable to contributions made during the legal regime is community. The rest is separate.

35

How are defined benefit plans classified? (based on length of service)

1. Sims approach: Sims formulate is used to compute a community fraction, non-employee's interest in the employee's penion is one-half of the community fraction. Nonemployee spouse usually receives nothing until the employee spouse retires or dies.

36

How is the community fraction formed?

Numerator--portion of the pension attributable to the community; Denominator--portion of the pensions attributable to total creditable service.

37

What is the Hare exception to Sims formula?

Extraordinary achievements by the employee spouse after termination of the legal regime can affect the allocation of pension benefits if such acievements increase the benefits that would otherwise have been paid.

38

How are defined benefit plans apportioned using the present value method of apportionment?

1. Under the present value method, the employee spouse's interest in the plan is valued and allocated to that spouse in the partition, and other community assets of an equal value are allocated to the nonemployee spouse.

39

How are pensions and federal peremptions apportioned?

ERISA can preempt Louisiana community property law.

40

Are governmental pensions subject to ERISA?

No. Governed by Louisiana State Employees' Retirement System (LASERS).

41

How are social security benefits classified?

Benefits are the separate property of the payee spouse.

42

Is offsetting permitted when federal law preempts classification of community as property?

Yes, when federal law preempts classification of property as community, Louisiana law provides that the other spouse is entitled to receive offsetting award.

43

Can pension rights be partitioned?

Yes, can be partitioned years after a general partition of other community property if the origianl settlement was silent on the issue. Right to seek partition is imprecriptable.

44

How are personal injury damages classified?

Damages due to personal injuries sustained DURING the existence of the community by a spouse are separate property. Exception for portion of damages attributable to expense incurred by the community as a result of the injury--those are community property; or damages for lost wages are community property unless community terminates by divorce, e.g., non-injured spouse can only claim worker's compensations benefits as community while couple are married.

45

How are life insurance contracts classified?

1. Proceeds of a policy payable upon death are the separate property of the beneficiary named in the contract of insurance. 2. Ownership of policy depends on whenn purchased; if purchased during marriage the policy is community.

46

How are disability payments classified?

Depends on the nature of the benefits, not the source of the premimum payments. If they represent lost income, generally considered community property.

47

How is intellectual property classified?

Pro rata basis--portion of revenue attributable to work performed during the community is CP.

48

How are copyrighted works of authoriship classified?

Fructus of copyrighted works created during the legal regime are community property, while the usus and abusus of such works are separate property.

49

How is business goodwill classified?

Goodwill is community except to the extent it is attributable to any personal quality of the spouse.

50

What is the management of community property?

Each spouse acting alone may equally manag community proeprty.

51

When is the concurrence of both spouses required for managing community property?

1. Alienation of community property; donations.

52

What is required for both spouses to alienate community property?

Concurrence of both spouses required for alienation/encumbrance of community immovables, standing, cut, or fallen timber, furniture or furnishings located in the family home, all or substantially all of the assets of a community enterprise, and movable issued or registered as provided by law in the names of the spouses jointly.

53

When is concurrence of both spouses inapplicable?

1. Encumbrances imposed by law; 2. Business entities that are also possess legal personality, such as a corporation; 3. Transaction involving one of the enumerated assets that is not an alientation, encumbrance, or lease. 4. Spouse has exclusive right to manage.

54

When must both spouses concur with respect to donations?

Donation of community property to a third personal usually requires the concurrence of the spouses, but a spouse acting alone may make a usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation.

55

What are exceptions to the concurrence requirement?

1. Ratification of the AEL of a community immovable by the other spouse; 2. Renunciation of the right to concur (express reservations permitted)--renunciation may be irrecovable for up to three years. Effect of renunciation does not render the renouncing spouse a party to the transaction.

56

When can one obtain judicial authorization to act without consent of other spouse?

Spouse in summary proceeding, may be authorized by Court to act without concurrence upon showing that (1) best interest of the family and (2) other spouse cannot or will not concur.

57

When does one spouse have the exclusive right to manage community property?

1. Alienation of movable assets of business and souse is sole manager of a community enterprise; 2. Alienation of reigstered movables issued or registered in his name; 3. Management and disposition of partnership or LLC interest; 4. Judicial authorization permitted when one spouse is an absent person.

58

What is the effect of unauthorized alienation of community property?

AEL of CP is relatively null unless the other spouse has renounced the right of concur.

59

What is spouse's liability for fraud or bad faith?

Spouse is liable for any loss/damage caused by fraud or bad faither in the management of CP.

60

How is the legal regime of community property terminated?

Death; nullity; divorce; matrimonial agreement; judgment decreeing separation of property.

61

What are rights and duties of spouses to unpartitioned former community property when the legal regime terminates by DEATH fo spouse?

General property provisions governing co-ownership apply to unpartitioned CP, partitioned CP is no longer co-owned in indivision.

62

What happened when legal regime terminates other than by death of a spouse?

General property provisions displaced by more particular rules. 1. Ownership of former community property--each spouse owns an undivided one half interest in former CP and its fruits and products. 2. Management of former CP--spouse must preserve and manage former CP in mannder consistent with use prior to termination 3. Spouses cannot AEL former CP without concurrence except when AEL of registered movable, former community enterprise.

63

When may a spouse dispense with a concurrence when disposing of former CP?

Action is necessary; action is in best interest of the petitioning spouse; other spouse is absent, incapacitated, imprisoned incompetent or acting arbitrarily.

64

Does one spouse have an obligation to pay rent for use of former community home?

No, the spouse who uses and occupies the home shall not be liable to the other spouse for rental unelss ordered by the court.

65

Does a spouse have the right to demand partition of former CP at any time?

Yes. A contrary agreement is absolutely null.

66

How are obligations classified at the termination of the legal regime?

Community obligation or separate obligation.

67

When is an obligation a community obligation?

An obligation incurred by a spouse during the existence of a CP regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. Presumption that all obligations incurred bya pouse during the regime are community obligations.

68

Are alimentary obligation separate or community?

Deemed to be community obligation; child support is an alimentary obligation.

69

Are lawyers' fees to obtain a divorce a community obligation?

Yes, attorney fees are deemed to be a community obligation.

70

What are separate obligations arising during a legal regime?

Obligations incurred prior to the establishment of a CP regime are separate obligations. Obligations incurred during the establishment of a CP regime are separate if (1) they were neither for the common interests of the spouses nor for the interest of the other spouse. (2) incurred for the separate property of a spouse to the extent they do not benefit the community, the family, or the other spouse, (3) obligations arising from intentional wrongs not perpetrated for the beneift of the community are separate obligations.

71

How are obligations arising after termination of a legal regime classified?

Once terminated, neither separate nor community as the community regime has ended.

72

What is the importance of classifying obligations?

1. Creditors' rights; 2. Reimbursement; 3. Allocation in the partition.

73

When may a reimbursement claim be asserted?

Only after the terminations of the CP regime. Reimbursement shall be made from the aptrimony of the spouse who owes reimbursement--not from the net community assets. Measure of reimbursement is as if interest-free loan.

74

What is the special accession rule for spouses?

As between spouses, the owner of the ground owns all improvements placed thereon. Applies to all spouses, not just those governed by the legal regime.

75

What are the three grounds for reimbursement?

1. One spouse's asset used for other spouse's separate estate; 2. Something separate used for something community; 3. Something community used for something separate.

76

What happens when one spouse's separate asset is used for other spouse's separate estate?

The spouse whose property was used is entitled to reimbursement for the amount or value that the property had at the time it was used.

77

What rules apply with respect to accession and reimbursement?

Buidlings/other constructions/plantings made on the land of a spouse with the separate property of the other spouse belong to the owner of the ground.

78

What happens when something separate is used for something community?

If separate property of a spouse has been used either during the existence of the CP regime or thereafter to satisyf a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

79

What is the special rule for post-termiantion payments on registered corporeal movables?

If the C/O was incurred to acquire ownership or use of a community C.M. required by law to be reigstered, and separate prop of a spouse has been used after termination to satisfy that obligation, the reimbursement claim shall be reduced in proportion to the value o the claimant's use after termination of the CP regime.

80

What is the general limitation on the amount of reimbursement?

Liability of a spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations.

81

What is the exception for full reimbursement?

Full reimbursement is permitted when separate property is used for family expenses--if the community obligation was incurred for: ordinary family expenses; child-related expenses; then the supose is entitled to reimbursement regardless of the value of that spouse's share of all community property.

82

When can one obtain reimbursement when separate property was used to benefit community property?

If separate property of a pouse was used during the CP regime for the acquisition, use, improvement or beneift of CP, that spouse is entitled to reimbursement for one-half the amount or value that the property had at the time it was used. Same limitation--value of his share of all CP after deduction of all CO.

83

How does accession interact with reimbursement when separate property was used to benefit CP?

Buildings, other constructing permanently attached to the ground, and plantings made on CP with SP of a spouse during the existence of the CP regime are CP. Spouse whose SP was used is entitled to reimbursement for one-half the amount the SP had at the time it was used.

84

What is general rule when a separate obligation was satisfied with CP?

If CP was used during the regime to satisfy the SO of a spouse, the other spouse is entitled to reimbursement for one half the amount or value that the property had at the time it was used.

85

Are there limitations on the amount of reimbursement due when CP is used to satisfy a separate obligation?

No limitation. This rule expressly applies post-termination of the regime.

86

What happens when one uses CP to benefit SP?

If CP was used to improve or acquire SP, the other spouse is entitled to reimbursement for one-half the amount or value that the CP had at the time it was used. Buildings, other constructions perm. Attached to the ground, and plantings made on the sep. prop. of a spouse with CP belong to the owner of the ground.

87

Who can obtain reimbursement when SP has increased in value as the result of common labor?

Other spouse is entitled to reimbursement one-half of the increase attributed to the common labor. If either spouse's labor has caused the value of SP to increase and that labor has been undercompensated, then a reimbursement is due. No reimbursement is due if increase not due to undercompensated labor.

88

What are the special reimbursement rules for the family home?

1. If family home is one spouse's separate property, and if community funds are used to repay the purchase loan, other spouse's reimbursement claim is limited to the reduction of the principal (and the family lives there during the regime)

89

When can parties judicially partition?

Cannot partition prior to the termination of the regime.

90

When can parties voluntarily partition?

During the existence of the CP regime, the spouses may, without court approval, voluntarily partition the CP in whole or in part.

91

What is the effect of voluntary partition?

Does not alter the spouse's matrimonial regime; it merely changes the classification of those things they parition. Effective against third parties when filed for registry.

92

Can a voluntary partition be attacked on any grounds?

Yes, spouses to a voluntary partition may attack in on all other grounds for which a contract may be assailed.

93

When may a partition be reseincded for lesion?

If a spouse does not receive at least three-fourths of the FMV of his interest in the net value of the community, then he may rescind the voluntary partition for lesion. However, a judicial partion cannot be rescinded for lesion. Have FIVE YEARS to attack voluntary parition from the date the partition is executed.

94

What is the procedure for judicial partition?

1. Classification of all assets and obligations as community or separate; 2. Values and allocates assets to the parties--goal is that each spouse receives property of an equal net value. Allocation of obligation does not affect the rights of creditors. Judge has discretion to award an equalizing payment to make the allocation equal.

95

What re the creditors' rights during the legal regime?

Creditor may satisfy a separate OR community obligation from CP during the regime.

96

What are creditors' rights after termination of legal regime?

An obligation incurred before or during the CP regime may be satisfied after termination of the rebime from the CP and the SP of the spouse who incurred the obligation. Attorneys fees for divorce included in this.

97

What are creditors rights when former CP is sold?

If a spouse disposes of former CP to satisfy non-community obligations, he is liable for all obligations incurred by the other spouse up to the value of the CP he disposed. Exception--if a spouse by written act assumes responsibility for one-half of each CO incurred by the other spouse. Can dispose of CP without incurring further personal liability.

98

What are creditors' rights vollowing voluntary partition without termination of legal regime?

Unclear.

99

What is a separation of property regime?

A regme of separation of property is established by a matrimonial agreement that excludes the legal regime of community of acquets and gains by a judgment decreeing separation of property.

100

When is a separation of property regime appropriate?

1. Mismanaging spouse; absentee spouse; divorcing spouse; physically separated spouse

101

What is retroactivity of separation of property regime?

Judgment decreeing separation of property terminates the regime of CP retroactively to the day of the filing of the petitiotn seeking partition, except if divorced spouses, can be retroactive to date of earlier divorce petition.

102

What is the effect of judgment of separation of property on rights of creditors?

Creditors may intervene in a proceeding and object if there is a fraud on their rights; creditors maysue to annul a judgment of separation of property within one year of the date of the rendition of the final judgment.

103

What are the responsibilities for family expenses and obligations under a separation of property regime?

Spouses are solidarily liable for obligations incurred by either spouse for necessaries obtained. Each spouse contributes to the expenses of marriage in proportion to his means.

104

What is property ownership and management of property during a separation of property regime?

1. Each spouse owns his property alone; each spouse manages his property alone.

105

To which marriages does the legal regime of community acquests and gains apply to?

Applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.

106

What are conflicts of laws with respect to movables?

1. General rule--rights and obligations of spouses with regard to movables, wherever situated, acquired by either spouse during the marriage are goverend by the law of the domicile of the acquirig spouse at the time of acquisition.

107

What are the exceptions of the law of domicile?

1. Funds used to acquire Louisiana immovable, Louisiana's legal regime principles of classification apply, regardless of the acquiring spouse's domicile. The immovable will be classieid under Louisiana's legal regime rules.

108

What is the exception for hybrid quasi-community property?

If a movable was acquired during the marriage by either spouse while domiciled in another state, it shall be determined as followed: 1. CP under LA law will be treated as CP; 2. SP shall be classieified as SP, but will only have rights to the SP as he would if in the state where the movable was acquired.

109

What are the general choice of law rules for immovables?

1. If immovables are in LA, govered by LA law. 2. If acquired in another state, but one spouse was domiciled in LA at the termination of the community--CP under LA law shall be treated as CP; SP under LA law treated as SP, but other spouse only has rights to the extent allowed by the state of acquisition.

110

What are rights for Louisiana immovables when the spouse dies domiciled elsewhere?

Upon the death of a pouse domiciled outside of this state, the spouse's immovables situated in this state and acquired by that spouse when domiciled outside this state, which are not CP under the law of this state, are subject to the same rights, in value only, in favor of the surviving spouse as provided by the law of the domicile of the deceased at the time of death.

111

What are rights of Louisiana domicilaries when the immovable is located in another state?

Upon termination of the community between spouses domiciled in LA, rights and obligations regarding immovables in another state acquired during marriage by either spouse while domiciled in this state, and would be CP if sitatuated in this state--shall be determined ina ccordance with the law of this state.

112

Does the legal regime apply to putative spouses?

Yes, as long as one party was in good faith. 1. One spouse in good faith: one half of the CP goes to first legal wife, and one half goes to the putative--second wife. 2. Both spouses in good faith--one half CP goes ot his heirs, and other half is split between legal and putative wife.

113

What is the marital portion?

When a spouse dies rich in comparison to the surviving spouse, the SS is entitled to claim the marital portion from the succession of the deceased spouse. Marital portion an incident of any matrimonial regime and a charge on the succession of the deceased spouse. Survivor is entitled to the marital protio irrespective of the rights of heirs or legatees. Right of the SS is personal and nonheritable. Claim be inherited if made before the SS dies.

114

When does the right to claim the marital portion prescribe?

Three years from the date of death. SS is entitled to advancement if it appears he will be entitled to the marital portion.

115

Can the marital portion be reduced by the number of children left by the deceased?

Yes. 1. Deceased has no children--SS gets ownership of one/fourth of the succession; 2. Deceased has three or fewer children--SS gets usufruct of one/fourth of the succession for life; 3. Deceased has four or more children--SS gets usufruct of the child's share of the succession for life.

116

What is the cap on the marital portion?

Cannot excess one million dollars' legacy left by deceased to SS are deducted from the marital portion.