You thought you were in love for all time, then something went wrong. You’ve broken up, but in the meantime, you and your not-so-beloved-anymore bought property and assets together. The court will dictate who gets what if you ask for a divorce, but what if you never got married?
Depending on where you lived together, this can make the process of disentangling ownership of your assets much easier or much more difficult. Louisiana falls into the difficult category – at least if you and your ex can’t agree between yourselves on how to divide everything. The law here doesn’t recognize much in the way of relationships other than marriages. Louisiana’s laws for community property don’t apply to those who never tied the knot.
Is Louisiana a Common Law Property State?
First, it’s important to make a distinction between common law states and community property states. Louisiana observes community property law. It’s not one of the many common law marriage states.
This means that if you had married and wanted to divorce, property and earnings that you and your ex acquired during the marriage would be considered community property. Yes, earnings. Your spouse is entitled to half your income if you marry in Louisiana. You would each be entitled to half of everything. The court would effectively scissor it all down the middle.
It doesn’t matter if you purchased a piece of real estate and title it in your sole name. If you did it while you’re married, half that property belongs to your spouse.
Timing Is Everything
The phrase “acquired during the marriage” is an important one. If you owned property before you got married and you did nothing to commingle it – such as retitling it to include your ex’s name or using community money earned during the marriage toward its upkeep – it’s your separate property. The same goes for inheritances or gifts given to just one spouse during the marriage. The court won't force you to share these assets with your ex.
An Exception to Louisiana’s Community Property Law
Louisiana couples can override state law with a valid prenuptial agreement. You can agree how you’re going to treat marital assets and debts before you head down the aisle. A divorce court will most likely give your agreement a nod of approval if it’s been properly prepared according to state law.
Of course, if you didn’t get married, none of this applies to you. For better or worse, you and your ex are left to fight it out on your own, so it can help to understand Louisiana’s common law marriage and cohabitation laws.
Common Law Marriages in Louisiana
You might be considered legally married in some states, even without a marriage license, if you and your ex took certain actions to present yourself to the public as a married couple. Not in Louisiana. This state doesn’t and never has recognized these common law marriages. In this case, the term common law doesn’t refer to property, but rather to a marriage that exists without a civil contract. In legalese, that means a license.
Louisiana doesn’t recognize “common law” anything, either property division after a marriage or a marriage without a license.
There is one wrinkle to Louisiana’s common law marriage law, however. It’s possible that you could embark upon your marriage in another state, one that does recognize common law marriages. Then you move to Louisiana, and you break up.
In this case, you can petition a Louisiana court to recognize your marriage as valid and divide your property along the lines of the state’s community property laws – if you want to. First, you’d most likely have to produce witnesses from your old state to testify that you were indeed considered married there. And you might be better off re-establishing residency in your old state if it was a common law state, because courts in common law property states divide marital property and debts in a way that seems fair.
There’s no carved-in-stone 50/50 rule in these jurisdictions. One spouse might come out of the marriage with a mere 25 percent of the property, while the other gets a walloping 75 percent.
Does Louisiana Recognize Domestic Partnerships?
The court doesn't recognize civil unions or domestic partnerships in Louisiana, either, so this isn’t an option for unmarried couples who want to use such laws to govern the disposition of joint property after they break up. The courts here won't apply the state’s community property rules to domestic partners, because as far as Louisiana law is concerned, domestic partnerships don't exist.
But here’s another wrinkle: Although the state doesn’t recognize domestic partnerships, New Orleans does. Unfortunately, this is just at the city level, so it really can’t help with the division of jointly-held property in a state court.
Changes in Federal Law
You might have better luck at the federal level if you’re a same-sex couple and if that’s what’s prevented you from becoming legally married in Louisiana.
A 2015 ruling handed down by the Supreme Court in Obergefell v. Hodges requires that all states must now allow same-sex couples to marry. It also extends federal marital rights to same-sex married couples in all states. This might not help you much in a divorce situation, but it can help to clarify issues such as federal taxes, pensions and Social Security while you’re together.
You might want to seek the help of an attorney if you’re having trouble with any of these issues because Louisiana won’t recognize your marriage. The state was one of a few that actively resisted the Supreme Court’s mandate, and it’s still a murky issue.
Cohabitation Agreement Louisiana
If you can’t have a domestic partnership in Louisiana, and if there aren’t common law marriages in Louisiana, what can you do to protect your property rights in the event you break up? You might want to pretend that you’re just roommates.
Sit down together and hammer out a cohabitation agreement when you first begin living together. Do it by the book – have it notarized so it can be recognized as a legal civil contract. “Civil” is the key word here. It’s a contract between two unrelated individuals, not domestic partners or spouses, so a civil court would enforce it, not a family court.
You might still want to consult with a local attorney, however, because Louisiana has been historically reluctant to honor contracts between unmarried cohabitants. In fact, it’s one of only three states that take this position, the others being Georgia and Illinois.
Or Just Title Your Property Accordingly
Deeds and titles to property are also civil contracts. Generally, if a deed or title gives ownership to one individual, that contract will be honored as long as you’re not married and subject to community property rules. Perhaps the easiest way to protect your assets when the law isn't on your side is to make sure they're only in your name to begin with. Community property law only overrides this type of claim of ownership if you're married.
- NOLO: Legal Issues When an Unmarried Couple Breaks Up
- Family Equality Council: Louisiana LGBTQ Law
- FindLaw: Louisiana Marital Property Laws
- FindLaw: Cohabitation Property Rights for Unmarried Couples
- FindLaw: Unmarried Couples and Property – Basics
- KPLC: Legal Corner
- Louisiana State Bar Association: Community Property
- National Conference of State Legislatures: Civil Unions and Domestic Partnership Status
- TurboTax: Tax Tips for Registered Domestic Partners
- Nolo: Dividing Property and Debt During Divorce FAQ
- California Courts. "Property and Debt in a Divorce or Legal Separation." Accessed Sept. 14, 2020.
- Texas Statutes. "Family Code, Title 1, Subtitle B, Chapter 3, Subchapter A: General Rules for Separate and Community Property." Accessed Sept. 14, 2020.
- Internal Revenue Service. "Part 25, Chapter 18, Section 1: Basic Principles of Community Property Law." Accessed Sept. 14, 2020.
- Alaska Court System. "Property & Debt for Married Couples." Accessed Sept. 14, 2020.
- Internal Revenue Service. "Publication 555 (03/2020), Community Property." Accessed Sept. 14, 2020.
Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.