Most legal services clients will have very little in the way of community property, and clients with significant community assets are generally able (and should be advised) to secure market-rate representation by attorneys experienced in the law of community property. The substantive and procedural law of community property can be complex, and the consequences for misapplying it can be severe for clients.
However, there are two major considerations regarding community property that any attorney working in family law should be aware of for purposes of client counseling. First, the filing of a petition for divorce allows the parties to seek a judgment of separation of property (subject to various caveats and time requirements).1 The timing of a petition for a judgment of separation of property may have a significant impact on a client’s rights in relation to the former community property. Second, the community includes not only community assets, but also community obligations;2 the balance between the two may have strategic implications in any given case.
Provided there are no countervailing considerations, it is generally advisable to include an appropriate request for partition of the community in the divorce petition even if you will not represent the client in later partition proceedings. This can be accomplished via an allegation in the petition such as “The spouses have acquired community property during the existence of the marriage, and they desire that the community of acquets and gains be partitioned in accordance with La. R.S. 9:2801.” The prayer should also request relief related to the partition in language such as:
Petitioner prays that after due and proper proceedings had, that there be judgment herein partitioning the community of acquets and gains formerly existing between the parties, and adjudicating any and all other claims arising from the former community or the former matrimonial regime, including but not limited to claims for reimbursements, an accounting in accordance with La. C.C. art. 2369, and for contributions to education or training of the defendant pursuant to La. C.C. art. 121.3
The judgment of divorce should also contain language terminating the community of acquets and gains as of the date of the filing of the petition upon which the divorce was granted.4
- 1See La. C.C. arts. 2374–2375.
- 2See La. C.C. art. 2359, et seq.
- 3This suggested language and that of the allegation are taken from materials provided by the Honorable David A. Blanchet of the 15th Judicial District Court that were incorporated into the 2013 edition of this manual.
- 4See La. C.C. art. 159.