last update 1-01-2003

Louisiana's Matrimonial Regimes

A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons. There are two kinds of matrimonial regimes, one that the parties create between themselves and, second, the one provided by law if the parties do not create one themselves. The first kind is called the contractual regime because it is basically an ordinary contract between two spouses. The second kind is called the legal regime because it refers to the one that is created by law.

Contractual Regime

A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free, in Louisiana, to establish a regime of separation of property or modify the legal regime. Any provisions of the legal regime that are not excluded or modified by agreement retain their full force and effect of law for the parties.

As a general rule, a matrimonial agreement is governed by the same general rules of conventional obligations unless otherwise provided by law. However, they cannot contain provisions that are prejudicial to third parties. In other words, parties could not enter into a contract to fraudulently cheat a creditor from an amount that is legitimately due to him. The creditor would then have a right of action to sue to have the matrimonial agreement set aside and declared null.

Prior to marriage, parties who are going to be married can enter into a matrimonial agreement or marriage contract very easily. It only requires an agreement, a notary and two witnesses which creates an authentic act. In the absence of the notary and both witnesses observing both parties actually sign the document, the agreement can be attacked in the future as being invalid.

After marriage, the rule is different. After the marriage takes place, if a couple wants to set up a marriage contract, they must file a petition in the district court of their residence and obtain a finding by the court that the agreement serves their best interest and that they understand the governing principles and rules. Conversely, if they began marriage with a contract, they can change to a legal regime at any time without court approval.

Parties cannot use a matrimonial agreement to renounce or change the marital portion or the order of succession.

For people moving into Louisiana from out of state, they have a period of one year from the date that they moved to Louisiana and acquired a domicile here to enter into a matrimonial agreement without court approval. Thereafter, court approval is required to opt out of the legal regime.

Under the regime of separation of property, each spouse acting alone uses, enjoys and disposes of his property without the consent or concurrence of the other spouse. Each spouse is normally only liable for the debts they incur for their separate estates. However, a spouse is solidarily liable with the other spouse who incurs an obligation for necessaries for himself or the family.

Each spouse is to contribute to the expenses of the marriage in accordance with the matrimonial agreement. In the absence of such a provision, each spouse is to contribute in proportion to his means.

If a couple has lived under the legal regime of community property, there are several ways in which they can convert to the regime of separate property:

By petition to the Court for approval to change;
When the interest of a spouse is threatened to be diminished by the fraud, fault, neglect or incompetence of the other spouse, he may obtain a decree ordering the separation of property;
When a spouse is an absent person (absent for more than 5 years), the other spouse is entitled to a judgment decreeing separation of property;
When a petition of divorce has been filed, either spouse may request an order of separation that they have lived separate and apart for 30 days without reconciliation; and
When there is not a petition for divorce but the parties have lived separate and apart continuously for a period of six months.

Under prior marital law, if a judgment of separation was obtained as a result of having filed a petition for divorce, the separation of property was retroactive to the date of filing the petition for divorce. However, this was without prejudice to the rights validly acquired in the interim by third parties. If the parties reconciled thereafter, the reconciliation and re- establishment of the community was retroactive to the date of the filing of the petition for divorce. Under the current marital law, separation of property is still retroactive to the date of filing the petition for divorce.

Generally, income earned by one spouse becomes fair game for the IRS to levy upon to satisfy a tax liability of either spouse. But a prenuptial agreement can alter this result. In the case of Calmes, D Tx, 96-2 USTC  50,346, a couple executed a prenuptial agreement that recited that each spouse's property would remain separate and that the income from employment would also remain separate property of the spouse who earned it. The IRS attempted to levy the wife's assets resulting from her employment after marriage to satisfy the husband's premarital tax liability. A Texas district court held that the IRS could not levy the wife's property based on the pre-nuptial agreement.

Source La Civil Code Art 2325 et seq

Legal Regime

The legal regime is the "community of acquets and gains" set up in the La Civil Code. Because the legal regime has a number of pre-defined rules, more time will be spent on this section than was spent on the contractual regime or the matrimonial agreement.

The legal regime applies to all spouses residing within the bounds of the State of Louisiana regardless of their domicile at the time of marriage or the place where they were married. Thus, people who move to Louisiana are governed by the legal regime unless they opt for a marriage contract within the first year of their residency or they file a joint petition requesting that a judge approve a marriage contract.

Source La Civil Code Art 2325 et seq

Community Property

The legal regime provides that each spouse owns a present undivided one-half interest in all the property acquired by the community. Unless specifically exempted, everything acquired by a spouse during the existence of a community is presumed to be community property and is owned equally by both spouses.

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 separately classified as separate property, property donated to the spouses jointly, natural fruits 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.

In Louisiana law, the term fruits is normally used to refer to income. It is defined as being things produced by another thing without diminution of its substance. Natural Fruits are products of the earth or of animals, such as apples from the apple tree or calves. Trees are normally not considered to be natural fruits due to their slow growth. Minerals and oil are not fruits because their production results in depletion of the property. Civil Fruits revenues derived from a thing, such as rentals, interest, dividends.

Generally, income from community property is community income and income from separate property of the spouses is also community income. The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset and bonuses, delay rentals, royalties and shut-in payments arising from mineral leases are community property. Nevertheless, a spouse may reserve them as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged.

As to the fruits and revenue of immovables, the declaration is effective when filed for registry in the conveyance records of the parish in which the immovable property is located. As to fruits of movables, the declaration is effective when filed for registry in the conveyance records of the parish in which the declarant is domiciled.

There is a presumption that things acquired or in the possession of a spouse during the existence of a community are community things but either spouse may prove that they are separate property.

Source La Civil Code Art 2334 et seq

Separate Property

The separate property of a spouse is his exclusively. Such separate property 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 result of a voluntary partition of the community during the existence of a community property regime.

A donation by one spouse to the other spouse of his share of community in an asset transforms that asset into the separate asset of the donee spouse. Unless specified in the act of donation, an equal amount of the donee spouse's community interest is transformed into that spouse's separate property. Likewise, the natural and civil fruits of the thing and minerals produced from or attributed to the property given as well as bonuses, delay rentals, royalties and shut-in payments arising from mineral leases, form a part of the donee's separate property.

Conversely, a transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be a part of the community, transforms the thing into community property. As to both movables and immovables, a transfer by onerous title (purchase) must be made in writing and a transfer by gratuitous (donation) title must be made by authentic act. An authentic act is one passed before a notary and two witnesses.

When a spouse sustains personal injuries and receives an award for the injury or disability, that award remains his separate property. The idea here is that the person's body is clearly an item of separate property and the other spouse should not share in any financial award relating to the body. However, any related award reimbursing or providing for medical expenses or providing for lost compensation is community property since medical expenses incurred and wages earned would be classified as community. If the person had been able to continue to work, then the income that he would have earned would have been community so the award replacing those funds are also community funds.

Even in the case where the working spouse did not make any contributions to the disability plan, where the plan was entirely funded by the employer and where the plan was not part of the employer's compensation structure, the benefits were separate property of the working spouse. Hyde v. Hyde 697 So2d 1061 (La App 1 Cir 1997).

If the sparate property of a spouse has increased in value as a result of the uncompensated or under-compensated common labor of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value. The amount of reimbursement is one-half of the increase attributed to the common labor. If that can be established, then the burden of proof shifts back to the owner of the separate property to prove that the increase in value was attributable to factors other than the uncompensated labor.

As an example, if a spouse owns and works for his own corporation but does not draw a decent salary, the increase in value of that corporation could be the subject of a claim by the other spouse.

Source La Civil Code Art 2341 et seq, 2370 et seq

========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.

If you live in Louisiana and want to talk about your situation, please call me at:

    Marvin E. Owen
    3036 Brakley Drive
    Baton Rouge, La 70816
    ph 225-292-0099
    toll-free 1-888-292-0116

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