Protecting Separate Property in Louisiana

Louisiana is one of only nine community property states in the U.S.—and its system is rooted in the Civil Code, not common law. Under La. Civ. Code art. 2336, property acquired during the marriage is presumed community—equally owned by both spouses. But Louisiana also recognizes separate property under art. 2341. Whether you're navigating an uncontested or contested divorce, understanding Louisiana's unique rules is essential to protecting what's yours.

What Qualifies as Separate Property in Louisiana?

Under La. Civ. Code art. 2341, separate property includes:

• Premarital property: Assets you owned before the marriage
• Gifts and inheritances: Property acquired by gift, bequest, or inheritance to one spouse alone
• Damages for personal injury: Compensation (except lost wages) recovered for injuries to a spouse
• Property acquired with separate funds: Things purchased using separate property

Critical distinction: Under art. 2340, all property possessed during the marriage is presumed community. You must prove separate character by a preponderance of the evidence.

The Fruits Rule: Louisiana's Unique Trap

Here's where Louisiana differs dramatically from other states. Under La. Civ. Code art. 2339, fruits of separate property are community property—unless you execute an "authentic act" reserving them as separate. This means:

• Rental income: Rent from an inherited property is community without reservation
• Dividends and interest: Income from separate investments is community without reservation
• Business profits: Returns from a separately-owned business are community without reservation

How to reserve: The reservation must be made by "declaration in an authentic act" (before a notary with two witnesses). Once properly reserved, the fruits remain separate. Without this, all income your separate property generates during the marriage belongs to the community.

Tracing: The Talbot Standard

Under Talbot v. Talbot (1989), the spouse claiming separate property must trace the asset to a separate source with "sufficient certainty." This standard is:

• Not strict dollar-for-dollar: You don't need perfect accounting
• Preponderance standard: More likely than not that the property is separate
• Documentation-friendly: Bank statements, inheritance records, and gift letters help
• Commingling risk: Mixing separate and community funds can destroy traceability

The key is maintaining clear records. If you can show the separate source and follow the funds through to the current asset, you can preserve your claim even if some commingling occurred.

Reimbursement Claims: When Estates Intermingle

Louisiana provides detailed reimbursement rules when one estate benefits another. Under arts. 2364-2368:

• Art. 2364: If community property is used to satisfy separate debts, the community is entitled to reimbursement
• Art. 2365: If separate property benefits the community, the separate estate may claim reimbursement
• Art. 2366: If community funds improve separate property, the community may claim either the cost or the enhanced value (whichever is less)
• Art. 2367: If separate funds improve community property, the separate estate gets the cost or enhanced value (whichever is less)

These reimbursement claims are calculated at divorce and can significantly affect the final division.

Pensions and Retirement: The Sims Time Rule

For retirement benefits, Louisiana applies the Sims time rule from Sims v. Sims (1983). The community's share is calculated by:

• Numerator: Years of service during the marriage
• Denominator: Total years of service

Example: If you worked 30 years total and were married for 20 of those years, the community share is 20/30 (66.7%) of the pension value. The remaining 33.3% is your separate property.

The Termination Date: When Community Ends

Under La. Civ. Code art. 159, the community property regime terminates retroactively to the date of filing the divorce petition. This means:

• Post-filing income is separate: Wages earned after you file belong only to you
• Post-filing purchases are separate: Assets acquired after filing are not community
• Debts follow the same rule: Obligations incurred after filing are generally separate

Unlike states using a separation date, Louisiana's rule is clear and document-based—filing creates the cutoff.

Estimate Your Louisiana Divorce Costs

Property disputes in community property states can increase legal costs, especially when tracing or reimbursement claims are involved. Louisiana filing fees are approximately $250-$400 depending on the parish. Use our calculator to estimate your total expenses:

Protection Strategies

• Execute an authentic act for fruits: If you want income from separate property to remain separate, file the proper declaration
• Keep separate property segregated: Maintain inherited and premarital assets in accounts titled only in your name
• Document everything: Retain inheritance records, gift letters, premarital account statements, and property records
• Avoid commingling: Mixing separate and community funds in the same account complicates tracing
• Track reimbursement claims: If community funds pay for separate property improvements (or vice versa), keep records
• Consider a matrimonial agreement: Louisiana allows prenuptial contracts to modify the community property regime

Key Takeaways

• Community property presumption: All property during marriage is presumed community under art. 2340
• Fruits are community by default: Income from separate property is community unless reserved by authentic act
• Talbot tracing standard: Prove separate character with "sufficient certainty," not strict accounting
• Reimbursement claims apply: When one estate benefits another, compensation is due
• Sims time rule for pensions: Community share is proportional to marriage years vs. total service
• Filing date ends community: Termination is retroactive to when you file the petition

For the complete Louisiana property division guide and divorce timeline, see our detailed resources. For official forms, visit the Louisiana Supreme Court Self-Represented Litigants page.