Property Division Lawyers in New Orleans, Jefferson Parish and Surrounding Parishes in Louisiana
Stephen Rue twice has been voted the “BEST DIVORCE LAWYER” in New Orleans by Gambit weekly Readers Poll (2002 and 2003). In 2012, Stephen Rue was voted “BEST ATTORNEY” by Gambit weekly’s Best of New Orleans Readers Poll.
Stephen Rue also is the author of three books on Family Law, Divorce, Custody and related matters including the Louisiana Best Selling “LOUISIANA FAMILY LAW GUIDE.” (Found at Amazon.com) Rue has litigated over 2,000 divorces and family law cases throughout the Greater New Orleans Area (All Surrounding Parishes!)
If you are getting a divorce, we can ensure that your property rights and interests are fully protected.
An important consideration at the end of your marriage is the division of your marital assets. Louisiana is a community property state. This means that spouses generally share equally in the assets, income and debt acquired by either spouse during the marriage. However, some income and some property may be separate income or separate property. Characterization of marital property as separate or community can be complicated. You need the services of an experienced community property partition lawyer to help you. Additionally, it is important that a trained professional assist you in insuring you receive an equal share of the assets acquired during the marriage.
At Stephen Rue & Associates Law Firm, our New Orleans, Jefferson PArish and Surrounding Louisiana Parishes Property Division Attorneys have extensive training and experience in resolving complex property division issues and drafting divorce settlement agreements. If you are getting a divorce, we can ensure that your property rights and interests are fully protected.
St. Tammany Parish Attorneys Help You Divide Your Marital Assets
The system of principles and rules governing the ownership and management of the property of married persons is called a matrimonial regime. In Louisiana, when persons marry they enter into a community property regime by law, unless they contract otherwise, such as by a prenuptial agreement. Thus, the vast majority of Louisiana marriages are subject to a community property regime.
When spouses divorce, the community property regime terminates and the parties must divide the assets and liabilities of the marriage. The assets and liabilities of the marriage are generally classified as community or separate. The rules to classify marital assets can be highly technical and complex.
Assets to consider in a community property partition include:
- Bank accounts
- Retirement accounts
- Investment accounts
- Real estate
- Rental or other investment property
- Insurance Policies
- Oil and Gas Royalties or Interests
- Home furnishings and other movable property
Debts that often need to be divided in a community property partition include:
- Credit Cards
- Unsecured notes and loans
- Auto Loans
In addition to dividing assets and liabilities, either spouse may have claims against the other for reimbursement for expenses of the marriage.
Such reimbursements may include may include:
- Payment of the mortgage
- Use of community funds for personal benefit
You need a lawyer who understands these complex rules and concepts in order to make sure you get your fair share of the community. The experienced attorneys atStephen Rue & Associates Law Firm will help protect your interests when the community property of the marriage is divided.
At Stephen Rue & Associates Law Firm, we offer consultations so you can discuss your divorce case with one of our experienced attorneys.
The following is an excerpt from Louisiana Divorce Handbook (Available on Amazon.com), with Express Permission of Author Louisiana Family Law Attorney Stephen Rue. @ All Rights Reserved, Stephen Rue 2014.
1. RECAP ON CHAPTER 5
You have already taken advantage of the tips provided in the chapter encouraging you to “GET POSSESSION OF CHILDREN AND PROPERTY”
Always remember the importance of getting possession of the following:
2. PROPERTY AND SENTIMENTAL ITEMS
5. THE HOUSE/APARTMENT/FURNISHINGS
6. INVENTORY EVERYTHING
7. FINANCIAL RECORDS
8. INFORMATION FROM COMPUTERS
9. VIDEOTAPE AND/OR PHOTOGRAPH YOUR RESIDENCE
10. FILE EX PARTE MOTIONS
2. BEFORE YOU GET DIVORCED,
SPEAK WITH YOUR ATTORNEY ABOUT DIVIDING THE COMMUNITY ASSETS AND DEBTS
Quite often individuals postpone resolving the division of marital property until after the divorce. Many people who get divorced feel a huge burden off of their backs after the final divorce judgment is rendered. For many reasons, some financial and some emotional, litigants frequently stop the litigation between their now former spouse without formally dividing up and community property assets and debts. Consult your attorney as to the pros and cons of pursuing a partition of the community property. A failure to divide the assets and debts may cause problems in the future regarding valuations, potential reimbursements for use, loss or destruction of items, commingled separate and community debts, subsequent marriage property rights, and inheritance rights.
3. WAYS TO DIVIDE PROPERTY IN AMERICA
Each state has a slightly different way to divide property of a divorcing couple. The three basic ways that states divide assets are as follows:
1. Equitable distribution
2. Common law division
3. Community property division
4. EQUITABLE DISTRIBUTION
Equitable distribution is the most common means of property division. Under the equitable distribution basis, property is divided and/or distributed based on concepts of fairness and equity. Many lawyers casually refer to spouses as if they were partners in a business endeavor.
5. “COMMON LAW” PROPERTY DIVISION
Mississippi is the sole state that distributes property on the basis of whose name is on the title or registration of an asset (“Common Law”). The state does not formally recognize the property value associated with homemaking and contributions to increased earnings capacity associated with the obtainment of professional degrees. Only that property that is jointly owned by both spouses can be divided by the court.
6. COMMUNITY PROPERTY DIVISION
Community property states, such as Louisiana, acknowledge a general joint interest in property acquired during the marriage. Community property laws provide exceptions for property that was acquired with proceeds of separate property and as well as with property excluded by valid prenuptial or postnuptial agreements.
In general, separate property is defined as any property owned prior to the marriage, property acquired by inheritance, or by marital contract.
In evaluating which spouse gets certain marital property, courts may review the following:
1. The duration of the marriage
2. The respective age, health, skills, and abilities of each spouse
3. The standard of living of each party
4. The financial needs of each spouse
5. The financial resources of each spouse
6. The separate and post marital property of each spouse
7. Each spouse’s contribution to the acquisition and/or improvement of the marital or separate property
8. Each spouse’s contribution to the education and/or increased earning capacity of the other spouse
9. Tax consequences for each party
10. The need of the custodial parent to remain in family home with minor children
11. Any award of alimony and/or child support
12. The liquidity of property
13. The ability of a spouse to operate a “family business”
14. The anticipated wasteful dissipation of property by a party
15. The potential loss or gain of inheritance and pension rights of a spouse upon divorce
16. Individual gifts/donations to a party
17. Other considerations deemed relevant by the court
7. DON’T GET HUNG UP ON
DEFINITIONS OF PROPERTY
Many books go into lengthy discussions of how you should legally define an asset or debt. These books often fail to emphasize the importance of data gathering and categorization as set forth above. Yes, you are dealing with Louisiana community property laws, but don’t get caught up in the trap of trying to “define” whether certain property is “separate” or “community.” After you have accomplished the above tasks, then you should have a discussion with your attorney as to the legal interpretation (“definition”) of each asset and debt. Ultimately this is a job for your attorney; that’s what you pay him for. Although there is a natural tendency for you to try to “define” each asset and debt, you have not been trained to interpret the legal description of assets. Let your lawyer do his job. Ask him to provide you with his interpretation of how each asset and debt likely will be categorized by the court as well as the ramifications of such interpretations.
8. SEPARATE PROPERTY IN LOUISIANA
LA-C.C. Art. 2341 Separate property
The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.
9. COMMUNITY PROPERTY IN LOUISIANA
LA-C.C. Art. 2338 Community property
The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.
10. PRESUMTION OF COMMUNITY
LA-C.C. Art. 2340 Presumption of community
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 that they are separate property.
11. TERMINATION OF COMMUNITY
LA-C.C. Art. 3526 Termination of community; movables and Louisiana immovables acquired by a spouse while domiciled in another state
Upon termination of the community, or dissolution by death or by divorce of the marriage of spouses either of whom is domiciled in this state, their respective rights and obligations with regard to immovables situated in this state and movables, wherever situated, that were acquired during the marriage by either spouse while domiciled in another state shall be determined as follows:
(1) Property that is classified as community property under the law of this state shall be treated as community property under that law; and
(2) Property that is not classified as community property under the law of this state shall be treated as the separate property of the acquiring spouse. However, the other spouse shall be entitled, in value only, to the same rights with regard to this property as would be granted by the law of the state in which the acquiring spouse was domiciled at the time of acquisition.
12. MANAGEMENT OF COMMUNITY PROPERTY
LA-C.C. Art. 2346 Management of community property
Each spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.
13. DUTY TO PRESERVE COMMUNITY PROPERTY
LA-C.C. Art. 2369.3 Duty to preserve; standard of care
A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.
A community enterprise is a business that is not a legal entity.
14. POSSESSION AND USE OF FAMILY RESIDENCE OR COMMUNITY MOVABLES OR IMMOVABLES
LA-R.S. 9:374 Possession and use of family residence or community movables or immovables
A. When the family residence is the separate property of either spouse, after the filing of a petition for divorce or in conjunction therewith, the spouse who has physical custody or has been awarded temporary custody of the minor children of the marriage may petition for, and a court may award to that spouse, after a contradictory hearing, the use and occupancy of the family residence pending the partition of the community property or one hundred eighty days after termination of the marriage, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the occupancy of the family residence in awarding spousal support.
B. When the family residence is community property or is owned by the spouses in indivision, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support.
C. A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.
D. The court may determine whether a residence is separate or community property, or owned in indivision, in the contradictory hearing authorized under the provisions of this Section.
E.(1) In a proceeding for divorce or thereafter, a summary proceeding shall be undertaken by the court upon request of either party to allocate the use of community property, including monetary assets, bank accounts, savings plans, and other divisible movable property pending partition.
(2) The court shall determine allocation of community property after considering:
(a) The custody of the children and exclusive use and occupancy of the family residence.
(b) The total community property.
(c) The need of a spouse for funds to maintain a household prior to partition.
(d) The need of a spouse to receive legal representation during the course of the proceedings.
(3) Upon court order, each spouse shall provide the other a complete accounting of all allocated community property to demonstrate compliance with Civil Code Article 2369.3.
Acts 1990, No. 1009, §7, eff. Jan. 1, 1991; Acts 1995, No. 965, §1; Acts 1997, No. 614, §1; Acts 2001, No. 903, §1; Acts 2001, No. 1082, §1; Acts 2004, No. 668, §1, eff. July 5, 2004; Acts 2008, No. 408, §1; Acts 2009, No. 204, §2.
15. PROTECT YOUR PROPERTY
After you locate, inventory, and possess all documents, assets, and debts, you must continue to protect these items.
1. After speaking with your attorney, consider changing the locks to your dwelling
2. Get restraining orders against your spouse’s use, disposal, or alienation of your marital property, separate, and/or personal
3. Having inventoried, photographed, and/or videotaped your belongings, if your furniture, tools, jewelry, or other items “mysteriously” disappear, then you have record and evidence of their existence
4. Give your attorney any documents that you fear will be lost or taken
5. Put all valuables in a secure location that your spouse cannot get to
16. LOCATE AND PRESERVE IMPORTANT DOCUMENTS
- Adoption Papers
- Articles of Incorporation for Family Business
- Bank Documents
- Baptism Certificates
- Birth Certificates
- Citizenship Documents
- Computer Data
- Copies of All Expenses
- Credit Card Statements
- Drivers License
- Education Records
- Employment Benefit Documents
- Employment Income Related Documents
- Evidence for Any Purpose
- Expense Records
- Financial Records
- Insurance Policies
- Immigration Documents
- Income Records
- Marriage Certificate/License
- Medical Records
- Paycheck Stubs/Records
- Photographs and Video Tapes
- Power of Attorney Records
- Prenuptial Agreement
- Real Estate – Act of Sale and Mortgages
- Receipts for Expenses
- Receipts for Improvements to Property
- Receipts for Missing Assets
- Retirement Documents
- Sentimental Items
- Social Security Cards
- Tax Returns
- Vaccination Records
- Vehicle Titles
17. GIVE A LIST OF MISSING ITEMS
TO YOUR ATTORNEY
18. LOCATE HIDDEN ASSETS
Quite often, a spouse attempts to hide assets or income. Your attorney should know how to discover these deceptive practices. For example, a spouse who tries to hide income may have more expenses than the income that he is claiming. A review of these expenses may reveal to the court that your spouse has not been honest. You should assist your lawyer by suggesting the following events:
1. Look for assets in the names of others or fictitious names
2. Tell your lawyer of your spouse’s prior and present attempts to hide property and/or cheat others
3. Through proper discovery practices such as issuing subpoenas and taking depositions, your attorney may find these hidden assets or income and
4. Have a discussion with your attorney about your concerns that your spouse has hidden assets or income
19. DIVIDE ALL PROPERTY AND DEBTS
Your lawyer will be able to assist protecting and maximizing your property interests after you provide him with a comprehensive list which is divided into meaningful categories. When you list assets into categories, do not concern yourself with whether you think that the item is “separate,” “community,” or any other legal description. Leave that task to your competent attorney. At this time, do not concern yourself with whether or not your spouse is claiming property as being “separate,” “marital,” or “community.” The most important task for you to accomplish is to divide the assets into the following categories:
1. Property owned by you prior to the marriage
2. Property owned by your spouse prior to the marriage
3. Property solely held in your name that was acquired after the marriage (but before the filing of the divorce petition/complaint)
4. Property solely held in your spouse’s name that was acquired after the marriage (but before the filing of the divorce petition/complaint)
5. Property items held jointly by you and your spouse that were purchased after marriage (but before the filing of the divorce petition/complaint)
6. Property acquired by you after the filing of the divorce petition/complaint
7. Property acquired by your spouse after the filing of the divorce petition/complaint
8. Property acquired jointly by you and your spouse after the filing of the divorce petition/complaint
9. Contributions that you made to the acquisition or improvement of property owned in the name of your spouse
10. Contributions that you made to the acquisition or improvement of property owned in the name of both you and your spouse
11. Debt created by you prior to the marriage
12. Debt created by your spouse prior to the marriage
13. Debt that was incurred in your name alone that was created after the marriage
14. Debt that was incurred in your spouse’s name alone that was created after the marriage
15. Debt created in your name as well as the name of your spouse that was created after the marriage
16. Debt created by you after the filing of the divorce petition
17. Debt created by your spouse after the filing of the divorce petition
18. Debt created by both you and your spouse after the filing of the divorce petition/complaint
Dividing assets and liabilities into the above categories is a painstaking and tedious task, yet your efforts will provide very helpful information for your attorney’s use. Your efforts will be rewarded during the litigation in many ways, including but not limited to, lowering your attorney fees.
Don’t forget to list anticipated tax refunds and previously paid utility deposits.
20. PROVIDE VALUES FOR EACH PIECE
For each asset that you listed and categorized, provide your attorney the known cost of each asset, along with the date (approximate date) of purchase/acquisition. If you do not know the cost or value when acquired, simply indicate your lack of knowledge regarding that asset.
Additionally, provide your attorney with the fair market value of each item at the time of your marriage and/or at the present.
21. PROVIDE/SEEK APPRAISALS
AND FINANCIAL STATEMENTS
Provide your attorney with a copy of any and all written valuations and/or appraisals of any asset. Your attorney may request further valuations/appraisals of certain items. Typical appraisals value the following:
1. Real Estate
For automobile valuations, refer to the Kelley Blue Book and the Kelley Blue Book Older Car Guides.
Also acquire statements from financial institutions which are valuable sources of information regarding the value of a stock and/or account at a particular point in time.
Naturally, each spouse will attempt to associate as little value as possible with each asset that he wishes to keep and will associate the highest value possible with each asset that he anticipates will be retained or attributed to the other spouse. The benefit of valuation lies in the art of finding the most favorable and persuasive appraiser(s). Speak to your attorney about his contacts and experiences with various appraisers.
When an appraisal is required and funds are tight, it may be beneficial to recommend that the parties split or pay a proportionate share for a single unbiased appraiser.
22. PROVIDE VALUES FOR EACH DEBT
Provide a list of all debt, including the following:
1. The date the debt was created
2. The original amount of the debt
3. The amount/value of each debt at the date of marriage
4. The amount/value of each debt on the date of the filing of the divorce petition/complaint
23. QUESTIONS THAT YOU SHOULD ANSWER REGARDLESS OF WHERE YOU LIVE OR WHERE THE PROPERTY IS LOCATED
1. Identify the asset/property
2. State the date acquired
3. State how it was acquired (e.g., gift, inheritance, purchase, etc.)
4. State who acquired it
5. State its value at the following times:
a. On the date acquired
b. On the date of your marriage
c. On the date sold
d. On the date of the divorce
e. On the date of trial
6. State whether there have been any enhancements or damage to Item since acquisition
7. State the names of persons if the asset is registered, titled, or otherwise associated with a particular person
8. State whether the property is described as separate or otherwise based on a prenuptial or postnuptial agreement
24. GET ALL RETIREMENT PLAN INFORMATION
In order to properly handle a property settlement or decree, your lawyer and the court need information about each spouse’s retirement plans. According to the Employee Retirement Income Security Act (ERISA), information regarding pension plans and trusts should be made available to the plan participants and designated beneficiaries.
Various ERISA plans include defined benefit plans, defined contribution plans, profit sharing plans, stock bonus plans, stock option plans, Tax Reform Act stock plans, savings plans, incentive plans, thrift plans, and other plans. With this information, your attorney may negotiate a property settlement favorable to your needs.
Most plans have administrators who manage the retirement funds. The retirement plans of either spouse may have certain requirements necessary to alter the scheduled payments and/or recipients of the retirement funds. Your lawyer should seek an order, known as a qualified domestic relations order (QDRO), which is an order from the court instructing the retirement plan administrator to handle the plan in a particular manner. The QDRO should have the necessary language required by the retirement plan administrator.
25. LOOK AT YOUR INSURANCE NEEDS
BEFORE YOUR DIVORCE IS FINAL
Upon a divorce decree, your medical insurance coverage may be affected.
Prior to the divorce, make arrangements to insure that you and your children shall remain covered. Generally, dependent children can remain on a policy after a divorce decree. Yet the non-employee spouse generally will be dropped from the policy unless other provisions are made.
Pursuant to federal law, a non-employee former spouse may remain on the employee spouse’s medical insurance through the payment of additional premiums through COBRA. COBRA allows the non-employee former spouse to be maintained on the health insurance policy for up to three years after the divorce decree. Ask your attorney how to take advantage of the benefits provided by COBRA.
Additionally, a vindictive spouse may attempt to cancel the other spouse’s medical and dental insurance coverage prior to the judgment of divorce. Ask your attorney to verify medical and dental insurance coverage and request that he file a restraining order that the insurance be maintained until the divorce is finalized.
Likewise, a spouse may attempt to change the life insurance beneficiaries prior to a divorce decree. Your attorney should request that the existing life insurance be maintained and the designated beneficiaries remain unchanged at the same coverage amount. Your attorney may request notification of any beneficiary change or failure to pay the premium.
26. KNOW THE TAX CONSEQUENCES
OF ANY TRANSACTION
There are many tax consequences associated with the transfer of property. Please refer to the chapter regarding taxes and consult a tax advisor regarding the ramifications of your divorce proceedings.
One notable present tax consequence is as follows:
If both spouses own a house titled in both of their names and one spouse transfers his interest in the house to the other spouse as part of a property settlement, then the spouse (recipient spouse) who receives the full title to the house and later sells the house, will have taxable capital gains in the amount of the difference of the original purchase price of the house and the ultimate sale price of the house. You may wish to have the potential capital gains tax taken into consideration in your negotiations associated with any property settlement.
27. WATCH OUT FOR BLACKMAIL
FOR GAIN OF PROPERTY RIGHTS
As with issues of child support and alimony, refrain from giving into a spouse’s threats to challenge custody or other issues unless you concede your property rights. Report any such threats to your attorney. Any evidence of these threats should be tendered to your lawyer.
29. DON’T FIGHT OVER THE “LAWN FURNITURE”
(Do not pay your lawyer more than what it’s worth!)
It is remarkable how many people will spend hundreds or thousands of dollars in legal fees to fight over items that have nominal or no financial value at all. Although it may be worth a fight over sentimental property, generally a cost benefit analysis should be made. Don’t fight over that toaster or crab traps!
30. HAVE ALL ASSETS THAT ARE DECREED TO YOU BE PLACED IN YOUR NAME
Have your attorney file all necessary documents (certificates of title, etc.) into the proper parish registry.
The above is an excerpt from Louisiana Divorce Handbook (Available on Amazon.com), with Express Permission of Author Louisiana Family Law Attorney Stephen Rue. @ All Rights Reserved, Stephen Rue 2014.