2006 Louisiana Laws - RS 9:374 — Possession and use of family residence or community movables or immovables

§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 home in awarding spousal support.

B.  When the family residence is community property 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 to either of the spouses pending further order of the court.  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 home and the use of community movables or immovables in awarding spousal support.

C.  A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) 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 or not 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 the family home is separate or community property in the contradictory hearing authorized under the provisions of this Section.

E.(1)  In a proceeding for divorce or thereafter, upon request of either party, where a community property regime existed, a summary proceeding may be undertaken by the trial court within sixty days of filing, allocating the use of community property, including monetary assets, bank accounts, savings plans, and other divisible movable property pending formal partition proceeding, pursuant to R.S. 9:2801.

(2)  Upon court order, each spouse shall provide the other a complete accounting of all community assets subsequent to said allocation and in compliance with Civil Code Article 2369.3, providing the duty to preserve and prudently manage community property.

(3)  The court shall determine allocation of community assets after considering:

(a)  The custody of the children and exclusive possession of the house.

(b)  The total community assets.

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

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

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.