Community Property Flashcards
When does a community property regime come into existence?
At the time of marriage. The legal regime of community acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.
T or F:
Upon termination of the community, a spouse who has used separate property to improve community property is entitled to 1/2 value at time it was used.
True. Reimbursement follows the interest free loan model in all cases except uncompensated labor that improves separate property.
do both spouses have to be domiciled in louisiana in order for community property to apply
yes. there may be separate residences, but must both be domiciled in la.
does a community property regime exist if there is a unilateral declaration in act of sale that property is separate
yes, the community regime exists, however in order for the item to be separate, it must be act of declaration of separate property in transfer + concurrance of other spouse (usually signature)
A declaration in an act of acquisition that things are acquired with separate funds as separate property of a spouse may be controverted:
by the other spouse unless he concurred in the act OR by forced heirs and creditors of spouses, despite concurrence by other spouse
Define community property
acquired during legal regime through effort skill or industry of either spouse
define separate property
acquired prior to legal regime, acquired with separate property, inherited property, damages for mismanagement of community, or voluntary partition
*note there is a presumption of community, but separate can be proven by preponderance of the evidence.
when does classification as separate or community occur?
at moment of acquisition, so source of REPAYMENT not considered. Source of funds to purchase, downpayment, etc would be.
what is the conflict of laws rule for community property for movables
for states if one is not domiciled in louisiana, movables: according to the law of the domicile of the acquiring spouse at time of acquisition. Subject to one limitation: louisianas hybrid quasi community property provision. If on termination of community, either spouse is domiciled in louisiana and if partition suit is filed here, the provision will apply community property law to all movables acquired while acquiring spouse was domiciled elsewhere. (classify the source of funds)
what is a declaration of paraphernality
an instrument in which a spouse reserves the fruits and revenues of his separate property as separate. must be executed as an authentic act or under private signature duly acnowleged. must record in conveyance records of parish of domicile to affect fruits of movables, or in parish of situs of any immovable. Must provide a copy of declaration to spouse before filing. (this doesn’t apply prior to 2008)
are earnings affected by a declaration of paraphernality?
No. commissions on insurance policies, for example, written during the marriage would be earnings not affected by such a document.
How are insurance policies written by a spouse classified?
Supreme Court of la stated they are juridical acts from which civil fruits may be derived. So if before marriage, separate property. If during marriage, community. However, renewal commissions for such policies, to the extent attributable to spouses labor expended during community, might be apportioned as part separate and part community.
how are commissions classified
all commissions are presumed community, and spouse would bear burden of overcoming presumption by proving the extent he expended effort or not resulting in renewal for policies written during/ before marriage (based on how the question / facts are presented)
how are earnings classified
community if during marriage
how is prize money, contingency fee contracts, fruits of separate property classified?
all community
explain reservation of fruits
can be made by authentic act or act under private signature duly acknowledged. Copy of declaration must be furnished to other spouse not prior to 2008 must be recorded for immovable. For movable, declaration is filed and recorded where domiciled.
How are retirement benefits allocated?
Pensions are community property to extent attributable to effort expended by a spouse during the existence of the community. Therefore, the portion of benefits accruing during marriage is property of community.
Formula: Years married/ years worked. Then 1/2 to spouse.
are licenses or degrees property for purposes of community property?
no
Explain classification of savings account
It can be partially separate and partially community. The prohibition against mixed titles is inapplicable to money or other fungible things. It is presumed community, but this can be overcome by proof that separate funds were deposited and not withdrawn.
Classification of personal injury damages
damages due to personal injuries sustained during marriage are separate property. includes injuries to the person as well as workers compensation. Exception: portion of damages attributable to expenses incurred by community as a result of the injury is community property. Portion for loss of community earnings is also community.
What is transmutation?
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 donee. (think bonus to husband, hands wife as gift, valid donation to separate property)
What is Transformation?
transfer of separate property to community transforms it into community property. Must stipulate it shall be part of community. Onerous title transfer must be made in writing. Gratuitous transfer must be made by authentic act. If no compliance with form requirements, donation is valid but transforms into separate property of donee spouse, not community property. (basically transmutation)
T or F
during the community property regime, a separate obligation may only be satisfied from the separate property of the spouse who incurred the obligation
False. all obligations may be satisfied during the regime from the separate property of the incurring spouse and form the community property
Will tuition loan be classified as community obligation?
An obligation incurred by a spouse may be either community or separate. Only relevant on termination of regime, obligations incurred by a spouse during the existence of a community property regime for the common interest of both or for interest of other spouse is community. All support obligations are community. Fees incidental to divorce are community.
obligations prior to regime are separate. If it is for separate property and doesnt benefit community, they are separate. Obligations from intentional torts not perpetrated for the benefit of community are separate.
