1. MARRIAGE AND REAL ESTATE
PRESENTED BY

2. LOUISIANA IS A COMMUNITY PROPERTY STATE
Based in Civil Law tradition
At termination of marriage, community property is split 50/50

3. MATRIMONIAL REGIMES COMMUNITY OF ACQUETS AND GAINS CONTRACTUAL REGIME
JUDGMENT OF SEPARATE PROPERTY

4. COMMUNITY OF ACQUETS AND GAINS
The legal regime under LA law
Arises by default
Sets forth rules of ownership and management of property owned by spouses

5. COMMUNITY OF ACQUETS AND GAINS
Applies to all spouses domiciled in LA regardless of domicile at time of marriage or place of marriage
Each spouse owns a present undivided one-half
The alienation, lease, or encumbrance of a spouse's undivided interest in community property during the existence of the community is an ABSOLUTE NULLITY

6. CONTRACTUAL REGIME LA legislature’s recognition of freedom of contract
Spouses “opt out” of the legal regime
Can opt out entirely or partially

7. CONTRACTUAL REGIME cont’d
Ante-Nuptial (Pre-Nup) Agreement - before marriage
No court approval required
Done by authentic act or act under private signature duly acknowledged
Must be recorded in Parish where real property is located to affect 3rd parties

8. CONTRACTUAL REGIME cont’d
Post-nuptial Agreement - during marriage
Can modify or terminate the Legal regime
Court approval is required unless:
Spouses have been domiciled in LA for less than a year
Spouses are opting into the Legal Regime
What if spouses live here, move out of state, and then come back? Price v. Wise

9. CONTRACTUAL REGIME cont’d
Post Nuptial Agreement --- Joint petition must show Court that:
it is in both of their best interests and
that they understand the governing principles and rules
Must be recorded in parish where real property is located to affect 3rd parties

10. JUDGMENT OF SEPARATION OF PROPERTY
Can be done by motion of either spouse for reason of:
Mismanagement by one spouse
Absentee spouse
Pending divorce
Physical separation

11. CO-OWNERSHIP
After termination of the community property regime, the provisions of Louisiana law regulating co-ownership apply unless there is a contrary provision of law or judicial act

12. CO-OWNERSHIP cont’d
LA CC art Two or more persons may own the same thing in indivision, each having an undivided share

13. CO-OWNERSHIP cont’d
A co-owner may alienate or encumber his undivided interest
Consent of all co-owners is required for alienation or encumbrance of the entire property
Co-owners may agree to restrict alienation up to 15 years

14. CO-OWNERSHIP cont’d
LA CC art (1995) --- A spouse may not alienate, encumber or lease former community property or his undivided community property interest in that property without the concurrence of the other spouse and that in the absence of such concurrence, the alienation, encumbrance or lease is a relative nullity

15. CO-OWNERSHIP cont’d
A spouse has the right to demand partition of former community property at any time --- A contrary agreement is absolutely null
If the spouses are unable to agree on the partition, either spouse may demand judicial partition

16. DISCUSSION: WHO NEEDS TO SIGN THE PURCHASE AGREEMENT??
If you are dealing with a married couple, you should presume that both need to sign.
What if they are going through a divorce?
What if one says it is their separate property?

17. CLASSIFICATION OF ASSETS
Either Community or Separate
Classification made at the time of acquisition
Property owned by a married person is presumed community

18. COMMUNITY PROPERTY
Property acquired by either spouse through effort or skill
Wages earned during community, regardless of when they are paid
Disability benefits – payable in lieu of wages
Retirement benefits – to the extent earned during community

19. COMMUNITY PROPERTY cont’d
Property acquired with Community Things
Joint Donations
Fruits of both community and separate property (unless reserved)
Damages for loss of community property
ALL NON-SEPARATE PROPERTY

20. SEPARATE PROPERTY Property acquired before marriage
Property acquired with separate property
Ex. exchange
Inherited Property
Fruits separate property reserved
Damages for mismanagement of community
Damages to separate property
Personal injury damages
Property acquired by voluntary partition

21. CLASSIFICATION PROBLEMS
Commingling of funds
Does not change classification, but makes it hard to overcome community presumption
Credit sales / Bond for Deeds
Determined by date of transfer
Acquisitive prescription / Adverse possession
Determined at conclusion of period

22. CLASSIFICATION PROBLEMS
Donations
Depends on the intent of the donor
Lottery / Sweepstakes winnings

23. TRANSMUTATION – Change in Classification
From community to separate – When one spouse donates his undivided interest in a community thing to his spouse, the entire interest in that thing becomes separate property of the donee spouse.
From Separate to Community – A spouse may transfer his separate property to community property by stipulating that the thing transferred “shall be part of the community.”

24. CLASSIFICATION OF OBLIGATIONS
An obligation incurred by a spouse may be either a community obligation or a separate obligation

25. COMMUNITY OBLIGATIONS
Obligations of married persons are presumed community
An obligation for the common interest of the spouses or for the interest of the other spouse is a community obligation
Includes alimony
Includes obligations related to divorce

26. SEPARATE OBLIGATIONS
Incurred prior to the establishment of a community property regime
Incurred during the existence of a community, though not for the common interest of the spouses or for the interest of the other spouse

27. SEPARATE OBLIGATIONS cont’d
Obligation resulting from an intentional wrong
Obligation incurred for the separate property of a spouse if it benefits both spouses, the family, or the other spouse

28. CREDITOR’S RIGHTS / REIMBURSEMENT CLAIMS
Entire mass of community property is available to creditors for both community and separate obligations
If community property is used for separate obligation, reimbursement is due --- ½ of the value of the thing used at the time of use

29. CREDITOR’S RIGHTS / REIMBURSEMENT CLAIMS cont’d
Separate property is available to creditors to satisfy community obligations
Reimbursement is due --- ½ of the value of the thing used at the time of use

30. CREDITOR’S RIGHTS / REIMBURSEMENT CLAIMS cont’d
Separate property IS NOT available to creditors to satisfy separate obligations

31. ALIENATION OF COMMUNITY PROPERTY
GENERAL RULE – CONCURRENCE IS REQUIRED TO ALIENATE, LEASE OR ENCUMBER COMMUNITY PROPERTY
Property acquired by a married person is presumed community unless their spouse appears in the act to state otherwise
Unilateral declaration is not sufficient

32. EXCEPTIONS Acquisitions Business Entities Recorded Marriage Contract
Formal renunciation of right to concur
Judicial Authorization

33. Unauthorized Alienations
Considered relative nullity
Can be confirmed / ratified
Prescribes after 5 years

34. DECLARATION OF PARAPHERNALITY (SEPARATE PROPERTY)
Can be contested by spouse unless they appeared (intervened) in the act
Can also be contested by forced heirs and creditors --- in fraud of their rights

35. IMPROVEMENTS
Classified according to ownership of the ground, regardless of whether community or separate funds are used to make them
Spouse may be entitled to reimbursement at termination of community

36. TERMINATION OF LEGAL REGIME
Methods of Termination
Death
Nullity of Marriage
Divorce
Matrimonial agreement
Court order

37. PARTITION Division of property held in community
Changes classification of property from community to separate

38. JUDICIAL PARTITION Only done after legal regime terminates
Spouses submit sworn list of community assets and obligations
Court allocates assets and liabilities “equally”
May require equalizing payment
A partition by licitation may be required if asset cannot be divided evenly

39. VOLUNTARY PARTITION Does not alter matrimonial regime
Only changes classification of property
After-acquired property becomes community

40. DEVOLUTION OF PROPERTY AT DEATH
COMMUNITY PROPERTY
(INTESTATE)

41. COMMUNITY PROPERTY DEVOLVES IN THE FOLLOWING ORDER
Descendants
Naked Ownership to descendants
Legal usufruct to surviving spouse
If no descendants, surviving spouse takes in full ownership

42. LEGAL USUFRUCT Ends at Death or Remarriage
Usufruct attaches to proceeds of sale
May be required to provide security if naked owner is not a child of the usufructuary or is a forced heir

43. DEVOLUTION OF PROPERTY AT DEATH
SEPARATE PROPERTY
(INTESTATE)

44. SEPARATE PROPERTY DEVOLVES IN THE FOLLOWING ORDER
Descendants
Parents and/or siblings or descendants of siblings
lifetime usufruct to parents and naked ownership to siblings
Parents in full ownership if no siblings
Siblings in full ownership if no parents
Surviving spouse not judicially separated
More remote ascendants
More remote collaterals

45. DEVOLUTION OF PROPERTY AT DEATH
TESTATE

46. SPOUSE DIES TESTATE
Will dictates who takes both separate and community property
Subject to limitations of forced heirship laws
If all property is not disposed of in the will, the laws of intestacy apply

47. Same-Sex Marriage (Obergefell v. Hodges)
Same-sex couples have the same right as heterosexual couples to marry in every State of the United States
Same-sex couples have the right to marriage "on the same terms and conditions as opposite sex couples"
No State may refuse to recognize a lawful same-sex marriage performed in another State
Each State must recognize a lawful same-sex marriage performed in another State before June 26, 2015, as of the date of the lawful marriage

48. How does this affect real estate titles?
Subject to the laws of community if the property was acquired during marriage
Same-sex couple have until June 16, 2016 to opt out of the community regime without court approval
Should consider submitting property to community regime if acquired prior to marriage