Blog Post

Separating? – Who gets to stay in the house??

Marie Hillman • Oct 12, 2015

This is one of the toughest issues couples can face when separating, and unfortunately it is one of the first issues that most be decided.  If both parties […] The post Separating? – Who gets to stay in the house?? appeared first on Hillman Law Firm.

This is one of the toughest issues couples can face when   separating,   and unfortunately it is one of the first issues that most be decided.  If both parties are insistent upon staying in the home, the situation can be very ugly and volatile in the weeks preceding an order from the court.

Below are the guidelines the court uses in determining who gets to stay.  Please read and share in hopes to mitigate the anger and uncertainty and make best possible informed choices for families. Contact us for further assistance. We are here to help.

Rs 9:374 Possession and use of family residence or community movables or immovables  

A. When the family residence is the separate property of either spouse, after the filing of a petition for divorce or in conjunction therewith, the spouse who has physical custody or has been awarded temporary custody of the minor children of the marriage may petition for, and a court may award to that spouse, after a contradictory hearing, the use and occupancy of the family residence pending the partition of the community property or one hundred eighty days after termination of the marriage, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the occupancy of the family residence in awarding spousal support.

B. When the family residence is community property or is owned by the spouses in indivision, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support.

C. A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, a community immovable occupied as a residence, or a community manufactured home as defined in R.S. 9:1149.2 and occupied as a residence, regardless of whether it has been immobilized, shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.

D. The court may determine whether a residence is separate or community property, or owned in indivision, in the contradictory hearing authorized under the provisions of this Section.

E.(1) In a proceeding for divorce or thereafter, a summary proceeding shall be undertaken by the court upon request of either party to allocate the use of community property, including monetary assets, bank accounts, savings plans, and other divisible movable property pending partition.

(2) The court shall determine allocation of community property after considering:

(a) The custody of the children and exclusive use and occupancy of the family residence.

(b) The total community property.

(c) The need of a spouse for funds to maintain a household prior to partition.

(d) The need of a spouse to receive legal representation during the course of the proceedings.

(3) Upon court order, each spouse shall provide the other a complete accounting of all allocated community property to demonstrate compliance with Civil Code Article 2369.3.

Acts 1990, No. 1009, §7, eff. Jan. 1, 1991; Acts 1995, No. 965, §1; Acts 1997, No. 614, §1; Acts 2001, No. 903, §1; Acts 2001, No. 1082, §1; Acts 2004, No. 668, §1, eff. July 5, 2004; Acts 2008, No. 408, §1; Acts 2009, No. 204, §2.

 

Disclaimer: The information contained in this article is for general information purposes only. Nothing in this article is or should be considered legal advice. The information in this article is not intended to create an attorney-client relationship, and viewing or receipt of information from this article does not create an attorney-client relationship.

Do You Have a Louisiana Will?

By Marie Hillman • 30 Dec, 2021
Do you have a Louisiana will? Do you need a Louisiana will? These are important questions to consider. A valid Louisiana will can not only legally […] The post Do You Have a Louisiana Will? appeared first on Hillman Law Firm.

What is a Louisiana Succession, and do you need to do one?

29 Oct, 2021
When a person dies in Louisiana and leaves behind assets that need to be transferred into someone else’s possession a Succession is generally opened. This process is called Probate in other states There are different types of Successions in Louisiana which include: Intestate Succession There is no will and assets are distributed according to the laws of Louisiana which gives preference to children and surviving spouses. Testamentary Succession A will has been left and the named hairs are put into possession Affidavit for Small Succession A legal affidavit that distributes assets when the total value of the Succession is under $125,000 and there is little-to-no debt. It is important to note that not all assets go through the Succession. Life insurances pay-outs and investment retirement accounts with a named beneficiary are not considered assets of the Succession. If a family member of yours has passed away and you need assistance with transferring the assets through a Succession, please call me. I am here to answer your questions and guide you through the legal process.
Family by their Christmas tree.

Navigating Divorce During the Holidays

30 Sep, 2021
The holidays are supposed to be a time of joy and celebration, but when you're going through a divorce they can feel like the most difficult time of year.
Mother laughing, holding her young son.

Top 5 reasons Why You Should Hire a Family Law Attorney

26 Jul, 2021
Family law is a complicated and intricate area of the law. There are many reasons why hiring an attorney can be beneficial to you as well as your family.

Do you have a hurricane evacuation custody plan?

By Marie Hillman • 26 Sep, 2018
It is hurricane season and this season has been an active one. If you are divorced with young children, then you should discuss with your children’s […] The post Do you have a hurricane evacuation custody plan? appeared first on Hillman Law Firm.

Sending your child off to college? Consider having a POA

By Marie Hillman • 31 Jul, 2018
Like many parents right now I am getting my child ready for college life away from home. We have shopped for all the fun dorm stuff, […] The post Sending your child off to college? Consider having a POA appeared first on Hillman Law Firm.

What is an HOC? HELP!!

By Marie Hillman • 03 Jul, 2018
Many clients ask me to explain what a HOC stands for. HOC stands for Hearing Officer Conference. In St. Tammany and Washington Parishes, if you have a […] The post What is an HOC? HELP!! appeared first on Hillman Law Firm.

What type of custody plan is right for you?

By Marie Hillman • 22 May, 2018
If you are going through a divorce and you have minor children, you are going to have to come up with a custody plan. This is […] The post What type of custody plan is right for you? appeared first on Hillman Law Firm.

Do you need a prenuptial agreement?

By Marie Hillman • 22 Apr, 2018
Do you need a prenuptial agreement?  Some need it more than others… A Louisiana matrimonial agreement, what is typically referred to as a prenup, is a […] The post Do you need a prenuptial agreement? appeared first on Hillman Law Firm.

Preparing for a divorce? A few recommendations from me…….

By Marie Hillman • 23 Feb, 2018
Some people know a divorce is on the horizon. They feel it, or want it, and have the wherewithal to take a few steps to prepare […] The post Preparing for a divorce? A few recommendations from me……. appeared first on Hillman Law Firm.
More Posts
Share by: