Divorce -- Divesting Community Property during the Marriage

Different states in American utilize different laws and policies when it comes to the property rights of divorced spouses.  In Louisiana, we have what is called a “community property regime.”  This legal framework is one used in about a dozen other states, including Texas and California.  While each state has their own versions, the subject of today’s article will be the community property regime in Louisiana; and specifically how and when a spouse in the marriage may or may not divest their rights in the community property.
Let’s say Mark and Tabitha are married with two kids.  They have been married for fourteen years.  One night they have a really long fight about finances.  Mark says that he is making all of the money in the relationship, and that Tabitha needs to pitch in more so that they will have enough money to send their kids to college.  Tabitha, who got a divorce to marry Mark, really resents this accusation from Mark, because before they got married he had promised her that she would never have to work.  In fact, while Mark was working all the time, Tabitha was taking care of their children.  Now that the children are older that job is not as difficult, and it’s true, Tabitha does have some more free time on her hands.
Tabitha is so furious with Mark however, she decides to make a point.  She goes upstairs, grabs a pen and paper, and writes that she is alienating all of her rights in the community property regime to Mark’s sister, Beth.  The next day she signs the document before a notary.
Not to be outdone, Mark also goes and gets a piece of paper.  He writes on it that the boat that he and Tabitha just purchased for fifteen thousand dollars, The Darjeeling Express, is to be Tabitha’s separate property, and hers alone.   The document says that the boat is not to be part of the community property any longer.
Now let’s say two years later, Mark and Tabitha get a divorce.  Not surprisingly, they have many disputes about how to divide up their property.  Mark takes to his lawyer the document which Tabitha signed, which attempts to divest her interest in the community property regime.  The lawyer probably has bad news for Mark, because of Louisiana Code article 2337.  Article 2337 says “a spouse may not alienate, encumber, or lease to a third person his undivided interest in the community.”  This means that, despite her intentions at the time, Tabitha may not in fact have relinquished her right to half of the community property.
Tabitha on the other hand takes the document that Mark created to her lawyer.  Her lawyer may explain to her that in Louisiana, there is something called a “voluntary partition.”  This is when one spouse makes a piece of property that was once part of the community regime separate property for that spouse.  Assuming the document that Mark created was done according to the relevant form and procedural rules, he may have divested his right in the boat to Tabitha.
There are laws on the management of community property which may change the above analysis.  The above is purely informational and not legal advice.  Will Beaumont.  New Orleans.