Divorce Attorney - Fighting Over Gold Jewelry in Louisiana

When going through a marital breakup in Louisiana, it is inevitably certain that a dispute will arise relating to whether certain property or funds were separate or community. Determining whether funds were separate or community can be tricky at times. This is especially so when dealing with retirement funds, and so it can be important to hire a divorce attorney familiar with these matters. In reviewing Louisiana law, there are several cases that can help explain this area of concern.

In the Bhati case, a couple married for 28 years before the community property regime was terminated in 2001. Before applying the law, a divorce attorney must generally understand the facts. In the instant case, the couple married in Japan but established their domicile in Louisiana in 1974. Among other things disputed in this case, was a portion of a Federal Employment Retirement System (FERS) account and Indian gold jewelry. The husband was in default in the amount 689.00 on his retirement account. As a result, a 689.00 payment was made from community funds. The wife sought to increase her share of the FERS account since she made the default payment from community funds. The trial court did not award such increase since the court went with the wife’s suggested percentage when dividing the FERS account. Nonetheless, the wife received 146.00 more per month as a result of the onetime payment of 689.00.

A divorce attorney may ask why she should receive a benefit if the payment was made from community funds. Well let’s take a look. When parties purchase additional years of service in their retirement funds with community funds, the purchased years inure to the benefit of the community. Hence, when the community regime is terminated, both sides are to be compensated accordingly. As such, the appellate court denied the wife’s motion for an increased amount.

Secondly, the wife objected to the trial court’s finding that the female Indian jewelry was her ex-husband’s separate property. The husband testified that the jewelry was passed down from generation to generation. In essence, it was part of his Indian heritage. His father gave it to him. His wife claimed that he gave it to her in lieu of an engagement ring. The appellate court did not buy this argument. The appellate court cited the Talbot case by stating that the community presumption can be rebutted by a preponderance of the evidence. A divorce attorney generally must show the separate nature of property brought into the community regime.

Additionally, the appellate court reiterated that findings of fact by a trial court should not be disturbed unless there is manifest error or clear wrong. In this case, the appellate court found that there was not manifest error or clear wrong. As such, the trial court’s decision to award the husband the gold jewelry was affirmed.

So what can a divorce attorney learn from this case? One, when dealing with dividing a retirement account, it is important to hire a divorce attorney to determine exactly how much was contributed from the community regime. Once that has been determined, we will know precisely how much to seek when dividing the community regime. Additionally, we learn to keep records of separate property brought into a community regime. At trial, it is a credibility determination made by the judge that decides whether a thing is separate or community. While the community presumption can be rebutted by a preponderance of the evidence, it is best to keep records if available so that it will be clear to the judge that it is separate property.

The above is simply information on the law, not legal advice. Will Beaumont is an attorney in New Orleans, La.