Marital Property Division
If you are involved in a divorce and you have property, you need a Baton Rouge property division lawyer. Louisiana is a community property state. In general, this means that spouses jointly own property that they acquired during their marriage. At the end of the marriage, each party has the right to demand that the jointly owned property be divided between them. Often, the division of their property (also called a partition) is made by agreement. Sometimes, however, a court is asked to get involved. In either event, the Cosenza Law Firm can help you protect your rights.
Deciding if something is community property or is owned separately by one of the spouses is not always easy. A simple rule of thumb is that if property is “community” if its purchase was the result of the combined effort of the couple. Even this concept is not that simple. If a husband has a job and his wife stays home caring for the house and children, a car they buy with his salary is “community” property. The wife is considered to have contributed to her husband’s ability to work by her labor at home.
Separate property, on the other hand, is property that has not been acquired by virtue of the couple’s efforts. Inherited property is a good example of this principle. If your wife’s mother leaves her $100,000 in her will, that money is your wife’s separate asset. However, if she uses the money to by a certificate of deposit at a bank, the interest her separate property earns is community property. Another example of separate property is the money a spouse is paid for “general damages” in a tort case. If your husband is injured in a car accident, his “pain and suffering” may be worth money. If an insurance company pays him $100,000 for his “pain and suffering”, that money is his separate property.
The community ends when one of the parties dies. It also ends when the parties divorce. In most cases, the termination date is the date the petition for divorce is filed. If the termination is based on the divorce petition, there must eventually be a judgment of divorce in order for the termination to take place. Couples who divorced in a Baton Rouge area court should consult with a Baton Rouge marital property lawyer.
When the community ends, one of the jobs you should ask your divorce lawyer to do is to help you split up the community property. The first step is to figure out what is community and what is separate. This is not always easy. If your wife deposited her inheritance into your joint bank account, you may be able to argue that she donated the inheritance to the community. A spouse can change separate property into community property by donating it.
Most people have community debt, too. Most couples have a combination of credit card debts and mortgage debts from home and vehicle purchases. When the community assets are divided, it is customary for the debt to be divided as well. The goal in most cases is for each person to receive – net of the debts - half of the property.
This description of what happens is an oversimplification of the process. The process of dividing property and debt is complicated by numerous factors. For example, creditors do not care that your husband has agreed to pay the mortgage on the house in exchange for your giving him your half of it. If he defaults, the mortgage company will sue both of you. In exchange for this risk, you may want to ask for more than one-half of the net community. You may want to insist that the house be sold and the mortgage paid from the proceeds.
An experienced property division attorney in the Baton Rouge area can help you negotiate an agreement that is fair. The Cosenza Law Firm has helped many clients equitably divide their community property.
These days, most people have a pretty good idea of what their property is worth. Banks and investment companies can easily provide statements of value. But the value of some assets is debatable. In such cases, there are appraisers a couple can hire to professionally value assets such as household furnishings, vehicles, and collections.
If you and your spouse owned a business during your marriage, it will be necessary to figure out its value in order to fairly divide your marital property. You can hire an expert business appraiser for this purpose. That expert will need a great deal of information in order to advise you, your opponent, and the court about the company’s worth. The information will be gathered from documents such as profit and loss statements, financial statements, and tax returns.
Once you and your spouse (and your lawyers) have agreed on a division of your community property and debt, you will probably sign a community property settlement agreement. Your lawyer may ask the judge in your case to approve it. If you transferred real estate in the document, it should be recorded in the records of the Clerk of Court. The agreement is a binding contract. Except in unusual cases, once you sign it there is no opportunity to renegotiate its terms. If one or both of you have retirement benefits such as pensions or profit sharing plans, there will probably be another document that must be prepared called a “qualified domestic relations order”.
Remember that just because you hire a lawyer to get you a divorce does not mean he or she has agreed to represent you in a partition of your community property. Obtaining a partition of your property will take you and your lawyer additional time and will cost you more money. If you want your lawyer to perform that service, you must make that expectation clear, preferably in a fee agreement.
The Cosenza Law Firm has experience in resolving complex property division issues and drafting divorce settlement agreements. If you are getting a divorce, Mr. Cosenza can help you protect your property rights. Call him today in Baton Rouge at 225-381-8181 or in Gonzales at 225-647-6644.