Navigating Property Division with Understanding and Expertise
Louisiana is one of a handful of community property states. This means in a divorce a Louisiana court will attempt to divide property and debts as equally as possible, rather than using equitable distribution rules.
Because community property rules can be very complicated, it’s vital to seek experienced legal counsel from a Lake Charles community property partition lawyer. They can identify which assets are community property and represent you in seeking your fair share of marital assets.
What Is a Community Property Partition?
A community property partition refers to the division of property and debts acquired during a marriage. This division is done according to Louisiana’s complicated community property laws. However, both spouses can reach a settlement agreement separately on how property will be divided rather than leaving the decision to the court.
How Is Community Property Divided in a Divorce?
In Louisiana, virtually everything acquired during the marriage belongs to both spouses.
There is a robust legal assumption that all debts and assets accumulated during the marriage are community property.
This refers to everything a couple owns and may include all money earned, the home, vehicles, and investments.
In most other states, it’s assumed that property acquired by one spouse during the marriage belongs to that spouse unless it’s put in the names of both spouses.
Unless both parties agree on a different arrangement, debts will be shared and split 50-50, and all assets will be divided 50-50. This often requires joint property to be sold to allow each spouse to receive half of the proceeds.
To decide which debt or asset should go to which spouse, a Louisiana judge may consider:
- The source and nature of the asset
- The finances of each spouse
- The work history and earning capacity of each spouse
- The age and physical and mental health of each spouse
- Any alimony or child support awards
- Other relevant factors
Spouses can reach a separate agreement with the help of an experienced community property partitions attorney for a different division of assets. This is the recommended course of action to prevent a judge from deciding which spouse will get which assets and prevent certain assets, such as a family home, from being sold.
How Does a Prenuptial Agreement Affect Property Partitions?
A prenuptial agreement can also be used to avoid this 50-50 split as long as the prenup is upheld as legal. With a prenuptial agreement, you can decide how community property is divided in divorce outside of Louisiana’s community property partition rules.
A prenup can state that the income each spouse earns during the marriage will belong to that spouse as separate property or designate specific belongings to one spouse as separate property. When properly drafted, a prenuptial agreement overrides Louisiana’s community property laws.
It’s important to note that a prenup must be legal for it to take effect in a divorce. A prenup can accomplish many things, such as keeping family heirlooms in the family, making provisions for children from a prior marriage, or protecting one spouse from the other’s debts, Louisiana law is strict about what it can’t include. For example, provisions that seem to encourage divorce with a financial incentive can be ignored by a judge, and a prenup can’t address child custody or support.
What Is Considered Community Property in Louisiana?
A broad range of assets is considered in a Louisiana community property partition including:
- Income received by both spouses during the marriage
- Bank accounts
- Retirement accounts and pensions
- Investments and any proceeds including dividends and interest
- Real estate
- Rental property
- Business interests
- Insurance policies
- Vehicles
- Home furnishings
- Jewelry
- Trusts
- Damages awarded for an injury or loss to community property
In most cases, the value of these assets is determined by the spouses. Sometimes appraisals are necessary to determine the amount of artwork, collectibles, and real estate. Some assets can be tough to evaluate without a CPA or professional, including business interests and retirement accounts.
Debts are also divided into a community property partition. This includes car loans, credit card debt, home loans, unsecured loans, and even student loans.
What Is Separate Property in a Louisiana Divorce?
Separate property refers to assets and debts that belong to one spouse only. This includes:
- Property acquired by a spouse before the marriage
- Property acquired through a gift, donation, or individual inheritance
- Property acquired during the marriage that’s deemed separate due to a marital or separate property agreement
- Property purchased with separate funds
- Pre-marital debts
- Property acquired after a legal separation
Some assets are partially community property but somewhat separate property. The best example is a retirement account one spouse contributed to before and during the marriage or a business that was started before the marriage.
It’s very important to understand that separate property can become community property due to commingling or mixing community and separate property. For example, if one spouse received an inheritance but mixed the money in a joint bank account, or one spouse owned a home before marriage but used marital funds to maintain and improve the home, the assets can become partially or fully community property.
Sometimes spouses have a claim against the other to receive reimbursement of expenses such as the use of community funds for personal use or mortgage payments. For example, if one spouse took out a student loan before marriage, it’s considered separate debt. However, the community estate may need to be reimbursed if marital funds were used to pay off the loan during the marriage. In these cases, a community property partition can become very complicated.
How a Lake Charles Divorce Attorney Can Help
A Lake Charles community property partition lawyer can help you in many ways during your divorce. If an agreement can’t be reached between spouses, your attorney will assist with making sure assets and debts are fairly assessed, and separate property is identified to seek your fair share of the marital assets.
Whenever possible, it’s usually best for the couple to come to a settlement agreement. Your divorce lawyer will represent you in identifying and valuing property and deciding how it should be divided. This will include legal advice on the best way to divide assets and negotiate with your spouse about items that benefit you or hold significant emotional value.
Assets can be divided in many ways, such as selling assets and splitting the proceeds, buying out the other spouse’s share of the asset, or assigning assets to each spouse.
Once a property settlement agreement is reached, it will be approved by a judge to make sure it doesn’t benefit one spouse unfairly.
Property division is one of the most contentious and complex aspects of a divorce. Louisiana’s community property laws make it even more complicated. Without an agreement between spouses the court will split assets 50-50 no matter who acquired or earned the assets. While it can be emotionally challenging, an experienced family law attorney in Lake Charles, LA, can help with legal advice, represent you in settlement negotiations, and protect your best interests.
At The Johnson Firm, we represent clients in dealing with complex property division issues in divorce. Contact a Lake Charles family law attorney today to schedule a consultation to learn more about our approach to protecting your assets in a divorce and ensuring the partition is fair.
