Community Property Flashcards
list the 3 types of matrimonial regimes in LA
- community property regime (“legal regime)
- contractual regime
- partly legal/partly contractual regime
State the rule for the “presumption of community” and describe how the presumption can be rebutted.
Property possessed by the spouses during the marriage is presumed to be community property.
The presumption of community can be rebutted by showing, by a preponderance of the evidence, the separate nature of the property.
To do this, X would need to show that the property was acquired with separate things or with commingled separate and community property things where the community portion is inconsequential.
Separate or community?
Donations or inheritance made by a third party to one spouse individually is classified as ____(a)_____ property, whereas donations made to the spouses jointly are ___(b)____ property.
a. Separate property
b. Community property
When determining whether a donation was made to a spouse individually or to the spouses jointly, donative intent is dispositive.
The key factor for determining whether a donation was made to a spouse individually, and is therefore separate property, or jointly, and is therefore community property, is _______.
the intent of the donor
What are the 2 valid forms for matrimonial agreements?
In order for a matrimonial agreement to be valid and enforceable, it must be made either by:
- authentic act, or
- an act under private signature duly acknowledged by both parties
In order for a minor to enter into a valid and enforceable matrimonial agreement, the minor must:
In order for a minor to enter into a valid and enforceable matrimonial agreement, the minor must either be:
- emancipated (giving him contractual capacity), OR
- have written permission from the person who has custody over the minor
At what times may parties enter into a matrimonial agreement?
Parties may enter into matrimonial agreements either before the marriage (prenuptial agreements) or during the marriage (post-nuptial agreements)
A matrimonial agreement entered into before the marriage is called a ________.
prenuptial agreement
A matrimonial agreement entered into during the marriage is called a ________.
post-nuptial agreement
What are the requirements for postnuptial agreements?
Parties wishing to enter into a postnuptial agreement must:
(1) meet the form requirements for matrimonial agreements (authentic act or act under private signature duly acknowledged by both parties),
AND MUST ALSO
(2) obtain court approval (additional requirement)
Before approving a postnuptial agreement, the court must determine that the agreement is ___(a)_____ and ___(b)_____.
a. understood by the parties, and
b. in the parties’ best interest
Court approval of a postbuptial agreement is NOT required for: (2 instances)
Court approval of a postnuptial agreement is NOT required for:
(1) agreements entered into by spouses living in LA, if signed within 1 year of acquiring domicile in the state; and
(2) agreements entered into by spouses that subject them to the community property regime
What matters are parties permitted to contract to in a matrimonial agreement?
As a general rule, parties to a matrimonial agreement are permitted to contract as to all matters not prohibitted by public policy
List the 4 matters parties may NOT contract to in a matrimonial agreement:
Parties in a matrimonial agreement may NOT:
- renounce or alter the marital portion
- modify the established order of succession
- limit, with respect to 3rd parties, the right of one spouse to obligate the community, or to alienate, encumber or lease community property
- waive interim spousal support
Who does LA community property regime apply to?
LA’s community property regime applies to spouses (a) domiciled in LA, (b) who have not contracted out of the community property regime
