Comment by Jasmine B. Bertrand
In 1991, the Louisiana Legislature enacted Book IV of the Civil Code, which was “the first major revision of Louisiana conflicts law since 1825.” Title III of Book IV presents the conflicts law applicable to marital property. These four articles are important to married couples today, when families are increasingly more migratory, and when separation and divorce have become commonplace events. Book IV, Title III has had a significant effect on the migratory spouse—specifically, spouses who have married outside of Louisiana and have separated, with one spouse residing within the state and the other in another jurisdiction. Book IV, Title III has resulted in inequitable results for the non-Louisiana-domiciled spouse, who has been found to have no community property interest in movables acquired by her estranged Louisiana-domiciled spouse during separation, despite any interest the Louisiana domiciliary might have in property acquired by the non-Louisiana domiciliary spouse. This Comment will address: (1) the progression of Louisiana's choice-of-law principles in characterizing property as community or separate where one spouse migrates to Louisiana without the other spouse, i.e., the Hand situation; (2) how other community property states have addressed the issue of characterizing property when faced with the Hand situation; (3) the most beneficial course of action for the spouse not domiciled in Louisiana who may find herself in the Hand situation; and (4) amendments that could be made to Louisiana law in order to eliminate or alleviate this potential inequity in Louisiana conflicts law.
About the Author
Jasmine B. Bertrand. J.D. candidate 2005, Tulane University School of Law; B.A. 1999, University of Louisiana at Lafayette.
Citation
79 Tul. L. Rev. 493 (2004)