Restoration of the Separate Estate from Community Property after the Equal Management Reform: Some Thoughts on Louisiana's Reimbursement Rules

Abstract

problem of how best to preserve the individual wealth of the spouse during the continuance of the marital partnership is one of the important problems of community property law.1 So wrote Professor W.O. Huie in 1953 apropos of Louisiana's jurisprudence, which at that time attempted to protect the wife by making it difficult for the husband, the sole and exclusive manager of the community property, to recover his separate estate by reimbursement. When Louisiana shifted from husband management to a general rule of equal management of the community property in 1980, gender-specific protection in the reimbursement rules was appropriately jettisoned. The 1980 reimbursement rules are also more sympathetic to separate reimbursement claims than to safeguarding a spouse's interest in the community property. The rationale behind the rules is that the spouses' common endeavor, the community property, will be protected by permitting both spouses equally and independently to manage the community. The legislature apparently concluded that there was no longer a need for the reimbursement rules to protect the community property when a spouse seeks reimbursement of his or her separate estate. As the cases are beginning to show, however, the disposition of separate claims for reimbursement under the 1980 rules can be devastating on a spouse whose means consist of only his or her interest in the community property. Louisiana now has a new unsolved problem, the reverse of the old one: how best to preserve the community from the restoration of a spouse's separate estate at termination of the community regime. The theme of the 1980 revision of Louisiana management rules was clearly one favoring the independence of both spouses. A major concern was whether a spouse should be able to manage and obligate more community property than