Louisiana Divorce FAQ’s – Property Division

This is about property division in divorce in Louisiana, including the general rule for Louisiana property division, what effect the length of marriage and conduct of the parties has on property division after divorce in Louisiana, how separate property works in Louisiana, and treatment of the marital home and retirement plans in divorce in Louisiana.

This information is from Adam Lambert, the DivorceInfo Network Lawyer for Louisiana. Click here to visit his web site.

What’s the general rule of property division (equitable distribution, community property, or legal title)?

Unless the parties entered into a matrimonial agreement (often called a “prenuptual agreement”), the general rule is that everything acquired by the spouses during the marriage is owned by them equally.

Community property is that which is acquired during the marriage through the effort, shill or industry of either spouse, such as wages and employee benefit plans, property donated to the spouses jointly and other property not classified as “separate.” Property owned before marriage, individual gifts during marriage and inherited property are “separate property” and generally NOT subject to division.

The best situation is one where the parties can agree to an equitable division of their property. In situations where the parties cannot agree, the court will determine values and then divide all assets and liabilities so each spouse receives one-half of the net value of the estate.

For more information on this subject, start with Louisiana Civil Code Article 2341.

What effect does the conduct of the parties have on property division?

Generally, none. The conduct of the parties can have significant effects on the granting of divorce and custody. However, absent extraordinary economic circumstances, the conduct of the parties has no effect on the division of property upon dissolution of the marriage.

What effect does the length of the marriage have on property division?

None. Whether a couple is married one day or fifty years, each party is entitled to one-half of all community property. Of course, if a couple is only married for a short time, the amount of community property will be much less, since property owned by either spouse before marriage is considered separate property.

Is there such a thing as separate property? What does it take?

Yes. Separate property is any property owned before marriage, inherited property, and individual gifts. Also, if the parties so desire they can enter into a matrimonial agreement before they marry to set up a separate property regime where each spouse’s property will remain separate.

Note that is is better to set up a separate property regime BEFORE marriage (although it is possible to do so once a couple is already married) and very special rules will apply as to how the couple handles their finances.

Any special rules for the marital home?

In general, no. Upon dissolution of the marriage, the home is considered just as other community property. However, when children are involved, special considerations must be made for their well-being, which will almost always affect the family home.

How do retirement plans get divided?

This issue is especially “hot” in Louisiana right now. The Louisiana Supreme Court has recently rendered several decisions on this issue which have affected many people in this area. The general rule is that a claimant (the party attempting to obtain a portion of their ex-spouse’s retirement) is entitled to one-half of the other party’s retirement that is attributable to the marriage.

For example, if a person worked at a job for 30 years and was married for 10 of those years, the ex-spouse would be entitled to 1/6 (or 1/2 of 1/3) of the pension.

The problem comes in when a person has been promoted after divorce. In those situations, the issues involved will be whether the promotion (which occurred after divorce and increased the party’s pension accordingly) was given as a matter of course or earned through the extraordinary skill and effort of the party after divorce. These issues get extremely complicated and should really be discussed with your attorney before taking any action.

Other issues in Louisiana:

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