CLASSIFICIATION
Presumption
Property in the possession of a spouse during the existence of a regime of community of acquets and gains is presumed to be community, but either spouse may rebut the presumption and prove that it is separate property
Effect on Donor Spouse CP ---> SP
The donation by a spouse to the other spouse of his undivided interest in property forming part of the community transforms that interest into the SP of the donee
Separate and Community Funds
An asset acquired w/commingled funds will be classified as COMMUNITY UNLESS the C portion of the $ is INCONSEQUENTIAL compared w/ S portion of the $
General Rules
can only be asserted after the termination of the CP regime
made from the patrimony of the spouse who owes reimbursement; the patrimony of a spouse consists of her share in the community and her SP; R is not due from net community assets.
treated as an interest free loan and typically based upon the amt/value of the assets at the time they were used.
due when there is a MISMATCH between the classification of the funds used and the purpose for which they were used.
Damages due to PI sustained during the existence of the community by a spouse are SP, even worker’s comp, EXCEPT WHEN:
(1) the portion of damages attributable to EXPENSES INCURRED by the COMMUNITY as a result of the injury is CP; or
(have to hire nanny to care for kids)
(2) the portion of the damages that compensates for the LOSS of COMMUNITY EARNINGS is CP
Aquisition
Typically FIXED at the moment of acquisition of the asset and is not ordinarily affected by post-acquisition events
Effect on Donee Spouse CP ---> SP
The donee’s equal interest is also transferred into SP and the natural/civil fruits of the thing form part of the donee’s SP.
Consequentilaity Test
Jurisprudence has found a community contibution of 10-20% or greater to be consequential.
SP benefits S Estate
If S1’s SP is used (1) for acquisition, use, improvement or benefitof S2’s SP; or (2) to satisfy S2’s SEPARATE obligation, THEN:
S1 is entitled to reimbursement for the amt or value that S1’s SP had at the time it was used.
WORKS IN PROGRESS
Classified on pro rata basis; the portion of revenue ultimately generated by the word performed DURING the existence of the community is CP.
COPYRIGHTED WORKS
Fed CR law partially preempts La CP law. Fruits of copyrighted works created during the CP regime are CP. The right to use, possess, alienate such works is the SP of the creator spouse
No Mixed Titles
Property of married persons is either community or separate, except as otherwise provided. Typically, an all or nothing proposition
Effect on Donor Spouse SP ---> CP
A transfer by a spouse to the other spouse of a thing forming part of his SP, with the STIPULATION that it be part of the community, transforms the thing into CP.
Credit Aquisition
Classification of a thing is FIXED @ moment of acquisition. IF asset purchased by spouse w/down payment consisting ENTIRELY of S $, the asset is classified as SP, and REMAINS SEPARATE, EVEN IF C $ are later used to pay off a substantial portion of the loan that facilitated the purchase.
something S benefit something C
If S1’s SP has been used either: (1) during the existence of the CPR or (2) thereafter to satisfy a COMMUNITY obligation, THEN:
S1 is entitled to reimbursement for ONE HALF of the amt/value property had at the time it was used.
When spouse pays tuition and related educational costs of the other spouse, paying spouse may make a claim for recoupment based on three factors:
(1) claimant’s EXPECTATION of SHARED BENEFIT when contribution(s) were made;
(2) DEGREE of DETRIMENT suffered by S1 in making the contribution(s); and
(3) MAGNITUDE of BENEFIT received by S2 (one w/ education)
Real Subrogation
When a thing forming a part of the SP or CP of a spouse is converted into another thing, the mass of the SP or CP is not
Effect on Donee Spouse SP ---> CP
The donor spouse conveys to the donee spouse an undivided ONE-HALF interest in what he owns and RETAINS the other half interest; the co-owned thing is transformed into CP.
Distinct Undivided Interest
If a spouse owns an undivided interest in a thing as CP and acquires an ADDITIONAL interest in the SAME THING as SP, the C interest REMAINS CP and the S interest REMAINS SP.
If a spouse owns an undivided interest in a thing as SP and acquires an ADDITIONAL undivided interest in the SAME THING as CP, the original undivided interest REMAINS SP and the subsequently acquired interest is CP.
SP benefit CP
If S1’s SP was used during the CPR for acquisition, use, improvement or benefit of CP, THEN:
S1 is entitled to reimbursement for ONE HALF of the amt or value property had at the time it was used.
Labor
If S2’s SP has INCREASED in value as a result of the uncompensated or under-compensated common labor or industry of the spouses, THEN
S1 is entitled to reimbursement from the spouse (S2) whose property has INCREASED in value ONE HALF of the increase attributed to the common labor.
Commingling
If community and separate funds are commingled, as in a bank account, the funds do not lose their distinct identity and does not result in a loss of ownership
Indiscriminate commingling, however, such that funds can no longer be traced as SP or CP, will result in CP classification
Because of the presumption of community, a spouse claiming that some portion of the account balance is SP must prove not only that separate funds were deposited into the account but that they were not withdrawn
Form Requirements
C ---> S
No special form required; general form requirements for donations apply; e.g., MANUAL GIFT of a DIV of a corporeal movable may be made by delivery of the thing to the donee w/o any other formality.
S ---> C
(1) Transferor must STIPULATE that the property be part of the community.
(2) A transfer by ONEROUS title must be made in WRITING.
(3) A GRATUITOUS transfer must be made by AUTHENTIC ACT
EFFECT OF NON-COMPLIANCE WITH S → C FORM REQUIREMENTS
If donor spouse fails to adhere to the special form requirements necessary to transform S → C, the donation, if confected in accordance with the general form requirements for donations, may be a valid donation that transforms the thing into the SP of the donee spouse.
Double Declaration
A declaration in an act of acq. that things are acquired with SEPARATE $ as the SP of the spouse may be controverted by:
(when acq. w/ SP in marriage) à
(1) the other spouse, UNLESS he CONCURRED in the act; or
(2) by forced heirs and creditors of the spouse, despite the concurrence by the other spouse; BUT EXCEPTION:
TO PROTECT 3D PARTIES, even IF a DD made by a spouse in the act of acquisition was false, an alienation, encumbrance, or lease of the thing to a 3d party by onerous title may NOT be set aside on the ground of the DD’s falsity.
CP benefit SP
If CP was used during the existence of the CPR or former CP has been used for the acquisition, use, improvement or benefit of a spouse, THEN:
The other spouse is entitled to reimbursement for ONE HALF of the amt/value CP had at the time it was used.
Family Home Exception Reimbursement
If the family home is S1’s SP, and if COMMUNITY funds are used to repay the purchase loan, THEN:
S2’s reimbursement claim may be limited to ONE HALF of the funds used to reduce the principal payment on the loan, because the family is living in the home rent free, deriving a benefit from the SP, warranting a limitation of the reimbursement claim. ***INTEREST PAYMENTS ARE NOT REIMBURSED.