Community Property: Louisiana is a community property state. Unless there is a postnuptial or prenuptial agreement, everything you earn from employment is 50% yours and 50% your spouse’s. Community property also includes interest and dividends paid on separate property during the marriage, gifts to you and your spouse jointly, inheritances granted to you and your spouse jointly,
Separate Property: The following are your separate property and excluded from community property: assets either spouse owned prior to marriage, inheritances, the appreciation of separate property, gifts to that spouse alone. Assets may have to be tracked through time. In other words, if you put up the down payment for the first family home, from the savings you owned prior to marriage, the first house was sold during the marriage and the proceeds were used to buy a second family home, then if you have proof of your savings prior to marriage, proof they were used as a down payment for the first home and proof that they were then rolled over in to the second family home, you are still entitled to get 100% of those funds back in a property partition.
Commingling: If however, your savings were mixed with your spouse’s in the joint checking account prior to buying the first house and mixed again in the joint checking account after the sale of the first house and prior to buying the second family home, then they are considered “commingled” and are not reimburseable.
Liabilities: Similarly, debt can be community or separate. Debt incurred by one spouse prior to marriage or during the marriage but only for the benefit of one spouse, is separate.
QDROs: Some assets will require a second document to partition them even after you have a Judgment of Partition. Pensions, 401k’s and retirements require these second documents which are called Qualified Domestic Relations Orders (QDROs). Every plan administrator has their own preferences as to format for these QDROs. Your attorney can order the plan administrator’s guidelines, then draft the QDRO for you, send it to an estate attorney for review, then send it to the plan administrator for pre-approval. At this time the parties execute it, it is filed with the Clerk of Court, your Judge signs it and a certified copy is sent to the plan administrator. The plan administrator then splits the plan into two accounts. There is no national QDRO uniformity and there are several variables that can change the effect that the QDRO has on you, for instance a survivorship clause. So this is not a quick process.
Prenuptial and Postnuptial Agreements: Without court approval, couples can opt out of community property partially, or totally before marriage. With court approval, couples can opt out of community property partially or totally after marriage. Marital agreements can include clauses regarding earnings from employment during the marriage, interest earned on separate property, spousal support.
If you are facing divorce, or have already gone through it you need an experienced attorney to guide you through the partition of community assets and liabilities. Call the experienced attorneys at Ellen Cronin Badeaux, LLC at 985-892-1955
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