FOLLOW

CONTACT

office: 337-233-3616 / cell: 337-258-4491

ADDRESS

321 W Main St., Ste. 1-A
Lafayette, LA 70501

©2019 BY CLAIRE BERGERON, ATTORNEY AT LAW, LLC

USE/OCCUPANCY OF FAMILY HOME

Use and Occupancy of Family Home + Vehicles, Rental Value for Use and Occupancy

C.C. Art. 2336. Ownership of Community Property states…
    “Each spouse owns a present undivided one-half interest in the community property. Nevertheless, neither the community nor things of the community may be judicially partitioned prior to the termination of the regime.
    During the existence of the community property regime, the spouses may, without court approval, voluntarily partition the community property in whole or in part. In such a case, the things that each spouse acquires are separate property. The partition is effective toward third persons when filed for registry in the manner provided by Article 2332.
(a)    The coownership of the community is subject to the rules governing termination of the regime rather than the general rules of the Civil Code governing judicial partition. The spouses may, without court approval, amicably partition the community property, in whole or in part. In such a case, the things that each spouse acquires are separate property. But neither the spouses nor their creditors may force a judicial partition as long as the regime continues to exist.
After a voluntary partition, the fruits and revenues of the property attributed to each spouse fall into the community.


C.C. Art. 2339. However, each spouse may reserve them as his separate property by an appropriate declaration. Ibid.
(b)    This provision, being a rule of public order, may not be derogated from by matrimonial agreement. See Art. 2330, supra; cf. C.C. Art. 11 (1870).
(c)    The community of acquets and gains is not a legal entity but a patrimonial mass, that is, a universality of assets and liabilities. An undivided one-half of the mass forms a part of the patrimony of each spouse during the existence of a community property regime, but the entirety of the assets of the mass is liable to creditors for the satisfaction of separate as well as community obligations of the spouses. See Arts. 2345 and 2357, infra. When a separate obligation of a spouse is satisfied from community assets the other spouse has a right of reimbursement under Article 2364, infra. During the existence of a community property regime, the separate property of a spouse is not liable to creditors for the satisfaction of a separate or a community obligation incurred by the other spouse. For satisfaction of obligations after termination of a community property regime, see Article 2357, infra.
(d)    Although the patrimony of each spouse includes only an undivided one-half of the mass of the community property, each spouse has by one provision of the law the right to manage and to dispose of the entire mass and the things that compose it, Article 2346, infra, subject to certain exceptions, Articles 2347, 2349, 2350, and 2352, infra. The spouses’ right of equal management is neither a tacit mandate granted by the other spouse nor authority deriving from coownership. It is an attribute of any regime of community property, established by provisions of law. It may not be curtailed, insofar as third persons are concerned, by a matrimonial agreement. Art. 2330, supra.”


R.S. 9:374. Possession and Use of Family Residence or Community Movables or Immovables states…
    “A. When the family residence is the separate property of either spouse, after the filing of a petition for divorce or in conjunction therewith, the spouse who has physical custody or has been awarded temporary custody of the minor children of the marriage may petition for, and a court may award to that spouse, after a contradictory hearing, the use and occupancy of the family residence pending the partition of the community property or one hundred eighty days after termination of the marriage, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the occupancy of the family home in awarding spousal support.
    B. When the family residence is community property or is owned by the spouses in indivision, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support.
    C. A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.
    D. The court may determine whether a residence is separate or community property, or owned in indivision, in the contradictory hearing authorized under the provisions of this Section. 
    E. (1) In a proceeding for divorce or thereafter, a summary proceeding shall be undertaken by the court upon request of either party to allocate the use of community property, including monetary assets, bank accounts, savings plans, and other divisible movable property pending partition proceeding.
(2)  The court shall determine allocation of community property after considering:
(a) The custody of the children and exclusive use and occupancy of the family residence.
(b) The total community property
(c) The need of a spouse for funds to maintain a household prior to partition.
(d) The need of a spouse to receive legal representation during the course of the proceedings.
(3) Upon court order, each spouse shall provide the other a complete accounting of all allocated community property to demonstrate compliance with Civil Code Article 2369.3.”


C.C. Art. 2338. Community Property states…
    “The 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 classified as separate property under Article 2341; property donated to the spouses jointly; natural 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.
    Acts 1979, No. 709, § 1, eff. Jan. 1, 1980.”


C.C. Art. 2340. Presumption of Community states…
    “Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.
    Acts 1979, No. 709, § 1, eff. Jan. 1, 1980.”

Justice
Law
Business Meeting
Justice