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Family Law Practice  



                                                           by: Elizabeth O. Rome

In order to obtain a divorce in Louisiana, a couple must generally live separate and apart for at least 180 days (6 months).  Recently, the law has been amended to require spouses of children under the age of eighteen (18) to live separate and apart for over one (1) year before filing to finalize the divorce.  In connection with that separation it is often the case that one party remains in the former matrimonial domicile and the other party lives elsewhere.  Who pays that house note in that event?  Does the co-owner (spouse) who does not stay in the home deserve rent from the one who remains there?  Under prior law a rental reimbursement would only be granted if it was asked for at the outset of the divorce petition and only if the court, in its discretion, allowed it.  The current law allows a rental reimbursement claim to be made by the non-occupying spouse any time before the community is partitioned.  Of course, the rental reimbursement claim is only retroactive to the date the petition asking for it is filed. 

Often, the person remaining in the home/rental does not have the funds to pay the house note and thus the battle is between the non-working spouse living in the home with the children and the spouse living outside the home who is working and able to pay the mortgage note. Sometimes, parties waive their right to reimbursement if they are living in the home and paying the house note.  The argument in favor of this is that while he or she is incurring the community expense of the mortgage note, they are also enjoying exclusive use of the property.  On the other hand, sometimes the spouse not living in the home will waive his or her right to a reimbursement for rent.  This is normally done as a set off of the reimbursement for the mortgage note. 

The former scenario is not always equitable nor workable.  One example of the inbalance of this situation is where a house note is a few hundred dollars or zero, due to a “Katrina payoff” or other factors.  If, on the other hand, the parties could rent the home out for double the amount of the house note or substantially more than the house note it would not be in the best interest of the person seeking a rental value to waive his or her right to the rent in exchange for the waiver of right to reimbursement for the mortgage note.

There is one school of thought that claims that it is smarter to move out of the matrimonial domicile so that you do not have to be responsible for its upkeep.  Normal wear and tear of the property is certainly the responsibility of the person remaining in the home.  On the other hand, major repairs such as replacing a defective roof, or replacing an entire air conditioning unit would be a necessary and reimbursable expense that the spouse living there should pay and ask for reimbursement at the time of the partition of the community. If not paid at the time the repair is made, the spouse making those payments would be entitled to a reimbursement of one-half of what they paid out for the necessary and reasonable repairs. 

A separate argument altogether is the thinking that moving out of the matrimonial domicile would be deemed “abandonment” of the marriage.  If a spouse is entitled to spousal support this could possibly be a concern but without entitlement to spousal support there is no worry in this regard. Obviously, the simple fact that one spouse moves out to start the divorce time period running, due to abuse of the other spouse, one spouse’s request that the other spouse move out and many other reasons would in no way be interpreted as abandonment.  

Certainly, there is an argument that, particularly with small children or simply with children who have remained in the same home for some time that the family should not be “displaced”.  Normally, the mother or father of the small children will ask the court to grant him or her “exclusive use” of the matrimonial domicile with the minor children.  Again, however, this opens the door to having a claim filed against you for rent.  In addition, the concern is that the mortgage note gets paid.  Can the spouse who does not occupy the former matrimonial domicile double dip?  In other words, can the spouse who moves out of the matrimonial domicile get a rental reimbursement from the spouse remaining there as well as his half of every mortgage payment if he/she pays it?  Yes and the courts have often granted this. 

Whether both spouses are working or not during the marriage and/or at the time of the breakup of the marriage, if a home is purchased during the existence of a marriage and there is no prenuptial contract then the home is community property.  Much consideration needs to go into the fact that although the property is indeed governed by the Louisiana articles on co-ownership generally, co-owners do not normally owe each other reimbursements for rent nor for half of the mortgage payments.  The exceptions are situations in which one spouse uses money from inheritance and/or funds received from personal injury claim recoveries, except lost wages which are separate property.


Beth@RomeFamilyLaw.com 504.780.9891
2908 Hessmer Avenue, Metairie, LA 70002
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