Disclaimer: This article is for general information only and does not constitute legal advice.
Detailed Answer
In Louisiana, married spouses remain co-owners of community property until a final divorce judgment. However, you can divide (partition) property held with your spouse before the divorce through either a voluntary agreement or a court-ordered partition. Below is an overview of both paths under Louisiana law.
1. Voluntary Partition Agreement
Spouses may modify or dissolve their property regime by mutual agreement any time before divorce. Under Louisiana Civil Code article 2343, a partition agreement must be:
- In writing.
- Executed before a notary.
- Recorded in the mortgage records of the parish where the immovable is located.
Once recorded, the agreement binds third parties and allocates each spouse’s share of community and separate property. This method avoids litigation and gives control over which assets each spouse receives.
2. Judicial Partition (Partition by Licitation)
If spouses cannot agree, either may file a partition action under Louisiana Code of Civil Procedure article 4651. Key points:
- Any co-owner (including a spouse) can demand partition of an indivisible thing or share in a thing.
- The court will first explore partition in kind (dividing the property into distinct portions).
- If in-kind division is impractical, the court orders sale by licitation and divides the proceeds according to ownership shares.
- This action applies equally to community property and to separate property co-owned by spouses.
See Louisiana Code of Civil Procedure article 4651: www.legis.la.gov/Legis/Law.aspx?d=88166.
When Partition Is Not Allowed Before Divorce
- You cannot unilaterally sell or encumber community property without your spouse’s consent until the divorce decree divides assets.
- Any conveyance that attempts to defeat the other spouse’s rights likely is voidable.
Helpful Hints
- Identify which assets are community vs. separate property before negotiating any partition.
- Use a notarial act to record voluntary partitions and protect against future claims.
- Consult a qualified Louisiana attorney to draft agreements and ensure compliance with recording requirements.
- Consider mediation to reach an amicable partition agreement and avoid court costs and delays.
- Remember that a judicial partition may result in a forced sale and potentially lower net proceeds.