LEGAL CORNER: If community property was not settled and one passes, what are the rights of the other?

KPLC 7NEWS AT NOON LEGAL CORNER

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QUESTION: I bought a Mobile home and land. I put both in mine and my wife’s names. We divorced one year after buying the property. The mobile home burned down. I put a new mobile home on the property. She has been gone for 23 years. She did not buy the property but I put her name on the deed with mine. How do I get her name off my land? She won’t sign off on it.

ANSWER: The first mobile home and land were purchased after the marriage and the deed was in both of your names. Therefore, it was community property and she became one-half owner of both. An ex-spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time of the divorce. To remove her name, you must file a petition to partition the community property. Doing so, will reimburse her to what she is legally entitled to receive and return the property to your name only.

THE LAW: LA CIVIL CODE ARTICLE 2366. Use of community property or former community property for the benefit of separate property If community property has been used during the existence of the community property regime or former community property has been used thereafter for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used. Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community property belong to the owner of the ground. The other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used.

LA CODE OF CIVIL PROCEDURE ART. 82. Action to partition community property A. Except as otherwise provided in this Article, an action to partition community property and to settle the claims between the parties arising from either a matrimonial regime or from co-ownership of former community property shall be brought either as an incident of the action which would result in the termination of the community property regime or as a separate action in the parish where the judgment terminating the community property regime was rendered. B. If the spouses own community immovable property, the action to partition the community property, movable and immovable, and to settle the claims between the parties arising either from a matrimonial regime or from co-ownership of former community property may be brought in the parish in which any of the community immovable property is situated. C. If the spouses do not own community immovable property, the action to partition the community property and to settle the claims between the parties arising either from a matrimonial regime or from co-ownership of former community property may be brought in the parish where either party is domiciled.

QUESTION: If community property was not settled and one passes, what are the rights of the other? The divorce was finalized and there are no children from the marriage.

ANSWER: Community property ended upon the filing of the divorce. Whatever the deceased spouse was entitled to at that time, became separate property. If the deceased spouse left no will, and there were no children, that separate property will legally be owned by either the parents or siblings. You, as the surviving spouse would be in co-ownership with them. In this case, often the value of that portion is paid by the surviving spouse to the heirs. A petition has to be filed to settle the community property acquired during the marriage.

THE LAW: LOUISIANA CIVIL CODE ART. 880. Intestate succession. In the absence of valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according to the following articles. LA CIVL CODE ART 891. Devolution of separate property; parents and brothers and sisters If the deceased leaves no descendants but is survived by a father, mother, or both, and by a brother or sister, or both, or descendants from them, the brothers and sisters or their descendants succeed to the separate property of the deceased subject to a usufruct in favor of the surviving parent or parents. If both parents survive the deceased, the usufruct shall be joint and successive.

QUESTION: My 34-year-old son has two minor children with a woman he is no longer with and never married. He is however listed as the children’s father on the birth certificate. For the past six months she has been pressuring my son to sign over his parental rights to the children. My question is, if he does so, will this in turn negate any rights I have as a grandparent to see my grandchildren and be a part of their life?

ANSWER: If “signing over his parental rights” means allowing someone else to adopt the children, then, at this time, under the circumstances described here, as grandparents, you will not have visitations with your grandchildren. The Law provides that the natural parents of a deceased party to a marriage dissolved by death, whose child is thereafter adopted, and the parents of a party who has forfeited the right to object to the adoption of his child may have limited visitation rights to the minor child so adopted. Even then, the grandparents must prove: (1) That they have been unreasonably denied visitation rights. (2) That such limited visitation rights would be in the best interests of the minor child.

THE LAW: CHAPTER 14. VISITATION RIGHTS OF GRANDPARENTS CHC Art. 1264. Post-adoption visitation rights of grandparents Notwithstanding any provision of law to the contrary, the natural parents of a deceased party to a marriage dissolved by death whose child is thereafter adopted, and the parents of a party who has forfeited the right to object to the adoption of his child pursuant to Article 1245 may have limited visitation rights to the minor child so adopted. Art. 1265. Motion; filing: Any request for limited visitation rights shall be made by written motion of the grandparents and filed with the court which rendered the final decree of adoption. Art. 1266. Hearing: The motion for limited visitation rights shall be set for hearing contradictorily with the adoptive parents. Art. 1267. Burden of proof: The grandparents requesting limited visitation rights shall prove both of the following: (1) That they have been unreasonably denied visitation rights. (2) That such limited visitation rights would be in the best interests of the minor child. Art. 1268. Evidence: A. The court, on its own motion or on motion of any party, may order an investigation to be conducted by the department or may order such psychological evaluations as deemed necessary. B. The court shall consider all relevant factors in making its determination, including but not limited to reports of psychological evaluations. Art. 1269. Order: The court may issue any limited visitation order that is consistent with the findings of the court and the best interests of the child.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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