1999年--外文翻譯---夫妻財產(chǎn)制度分配

1、<p>　　5100單詞，2.7萬英文字符，8000漢字</p><p>　　出處：Rigby K. Matrimonial regimes: Recent developments[J]. Louisiana Law Review, 1999, 59(2):465-519.</p><p>　　Matrimonial Regimes: Recent Developments&l

2、t;/p><p>　　Kenneth Rigby*</p><p><b>　　BIO: </b></p><p>　　*Attorney at Law, Shreveport, Louisiana; Adjunct Professor, Paul M. Hebert Law Center, Louisiana State University,

3、Baton Rouge, Louisiana, teaching Matrimonial Regimes; Member of Persons Committee and Council, Louisiana State Law Institute. </p><p>　　LEXISNEXIS SUMMARY:</p><p>　　... The important distinction

4、 between a matrimonial agreement and other types of interspousal contracts continues to elude some attorneys and courts. ... The contract, although dealing with an asset to be acquired in the future, concerned only the

5、construction of a house, options granted to the parties to purchase the house upon its completion, and its valuation, and not the classification of that asset. ... The most frequent example is a matrimonial agreement te

6、rminating the legal regime and </p><p><b>　　TEXT:</b></p><p>　　I. Matrimonial Agreements </p><p>　　The important distinction between a matrimonial agreement and other ty

7、pes of interspousal contracts continues to elude some attorneys and courts.</p><p>　　In Vogt v. Vogt, a former wife filed an action styled "Rule to Show Cause To Enforce Support Provisions of Matrimonia

8、l Agreement." The agreement was executed prior to marriage and stated that the parties elected to be governed by Louisiana community property law. It contained provisions stipulating the amount of alimony that the h

9、usband would pay to the wife in the event of divorce, provided that she had not committed adultery, as well as the husband's obligation to maintain a life insurance pol</p><p>　　The failure to distinguis

10、h between a matrimonial agreement and other types of interspousal agreements probably is the result of not understanding the restrictive nature of a matrimonial agreement. In one of the few commentaries that have defined

11、 "matrimonial agreement," Professors Spaht and Hargrave explain: "[A matrimonial agreement] is the kind of agreement that affects the classification and management of future acquisitions that are unique to

12、 the matrimonial agreements. Matrimonial agreement</p><p>　　Not all agreements between spouses affecting future property are matrimonial agreements, however. As Professors Spaht and Hargrave carefully point

13、out, it is only an agreement which affects "the classification and management of future acquisitions" that is a matrimonial agreement. Although an agreement may have as its object future acquisitions, unless th

14、e agreement affects the classification or management of that future property, it is not a matrimonial agreement.</p><p>　　The writer has defined a matrimonial agreement as follows:</p><p>　　All

15、agreements entered into between married persons are not matrimonial agreements. The latter are a particular type of agreement, defined by the subject matter [object] of the agreement.</p><p>　　The basic char

16、acteristic that distinguishes a matrimonial agreement from other types of contracts entered into between spouses or between persons contemplating marriage is that a matrimonial agreement contracts with reference to the p

17、roperty regime that exists or will exist between them during the marriage. A property regime is a system of principles and rules that govern the ownership and management of the property of spouses during marriage, both a

18、s between themselves and towards third persons</p><p>　　The object of a matrimonial agreement is these governing principles and rules. If the agreement modifies any of the principles or rules of a particular

19、 regime, or one system of principles or rules is substituted for another (one regime for another) in whole or in part, the agreement is a matrimonial agreement. Spouses are at liberty, however, to enter into a myriad of

20、other contracts or agreements between themselves before or during marriage which are not matrimonial agreements. For convenience,</p><p>　　When spouses contract with respect to presently owned community prop

21、erty, they do not modify any of the governing rules and principles of the legal regime classifying property as community or separate. In the legal regime, property is classified as community or separate property (or part

22、ially community and partially separate in the case of incorporeal movables) at the moment of acquisition by application of the rules and principles governing the legal regime. Likewise, if the spouses contract wi</p&g

23、t;<p>　　Spouses may agree between themselves on the classification of a particular item of property at the time of its acquisition. The spouses may also change the classification after its acquisition. Neither act

24、 is a matrimonial agreement, as neither terminates the legal regime nor modifies any of the rules of their matrimonial regime.</p><p>　　The failure to distinguish between a matrimonial agreement and other ty

25、pes of interspousal contracts can have significant consequences. Matrimonial agreements, whether executed prior to marriage or during marriage, have special requirements not applicable to other types of interspousal cont

26、racts, and failure to observe these requirements may result in the matrimonial agreement being a nullity. </p><p>　　Whenever executed, a matrimonial agreement must be by authentic act or by an act under priv

27、ate signature duly acknowledged by both of the spouses; a pre-marital matrimonial agreement under private signature establishing a separation of property regime for the marriage is not valid. In Ritz v. Ritz, the [*79]

28、 matrimonial agreement purporting to be in authentic form was signed by one of the witnesses after the marriage ceremony and outside the presence of the parties. The court held that the mat</p><p>　　The requ

29、irement for a judicial finding that the matrimonial agreement is in the best interests of the spouses presents a closer question. The court, rather than the parties, is called upon to decide what is in the best interests

30、 of the contracting spouses. This requirement also presents other problems. The terms and conditions of most matrimonial agreements are designed to be in the economic best interest of one party and against the economic b

31、est interest of the other. The most frequent example</p><p>　　The purpose of these article 2329 requirements is to prevent imposition upon one spouse by the other spouse. Without a meaningful judicial inquir

32、y into the terms of the matrimonial agreement and their effect on the spouses, this purpose is not achieved. A more realistic requirement would be that there be judicial findings: (1) that both parties understand the gov

33、erning rules and principles and the changes in those rules and principles effected by the matrimonial agreement, and (2) that they have</p><p>　　This proposal would place upon the court the responsibility or

34、 duty to ascertain that the parties truly understand the consequences of what they are doing and that they have both knowingly and freely consented to it, rather than requiring the court to determine if the agreement ser

35、ves their mutual best interests. If judicial supervision or oversight for the renunciation or modification of marital property rights during marriage is to be required, it is [*81] important that the court prevent im&l

36、t;/p><p>　　Some have contended that this judicial supervision is not needed to prevent imposition on a spouse by the other spouse during marriage. Indeed, such imposition is already possible: a spouse during ma

37、rriage may waive final spousal support without judicial supervision, and this waiver may have as much of a devastating economic impact on a spouse as a waiver of the legal regime. Arguably, the legislature should give mo

38、re protection to spouses with reference to property and support rights that accru</p><p>　　There are exceptions to these requirements. Spouses may subject themselves to the legal regime by a matrimonial agre

39、ement at any time "without court approval." Also, during the first year after moving into and acquiring a domicile in this state, spouses [*82] may enter into a matrimonial agreement "without court appro

40、val." If a judgment of separation of property is rendered for one of the stipulated causes, a reconciliation of the parties reestablishes the legal regime, unless prior to the rec</p><p>　　In Poirier v.

41、 Poirier, while married, the Poiriers signed a document entitled "Community Property Partition." It purported to partition community property, but the document contained the following provisions:</p><

42、;p>　　[T]hey [Poiriers] desire to settle and liquidate the community property which formerly existed between them. . . . [S]he [Lynette] agrees to accept her interest in the community property described herein to avoid

43、 any further litigation between all parties; . . . and . . . the parties hereto discharge each other from any further accounting of the community property which formerly existed between them. . . . </p><p>　

44、　The court concluded that by referring to community property in the past tense the parties intended to terminate the legal regime, not just to partition community property of an existing legal regime. The court found tha

45、t there were no dual judicial findings made pursuant to article 2329; the recitation in the judgment of divorce that the partition "be confirmed and made final" was not a compliance with the article 2329 requir

46、ements; accordingly, the court affirmed the trial court's annulling of </p><p>　　The agreement was, in part, a matrimonial agreement because it purported, according to the court, to terminate the legal r

47、egime. A partition of community property is not a matrimonial agreement because it does not modify or terminate a matrimonial regime nor modify any of its rules. Hence, dual judicial findings pursuant to Louisiana Civil

48、Code article 2329 are not required if the parties are married at the time of the confection of the interspousal contract to partition community property. The </p><p>　　Johnson v. Johnson erroneously held &qu

49、ot;that a Marriage Contract drawn up by the plaintiff before the marriage" that established "a separate property agreement in lieu of a community property regime," and which the court of appeal decided was

50、 "at the very least . . . executed by an act under private signature" was "valid as to form." Although wrong in its conclusion, the opinion correctly quotes article 2331, which requires that a matrimo

51、nial agreement be by authentic act or by act under private si</p><p>　　In Holland v. Holland, the husband contended that he and his wife had an (apparently verbal) agreement "during their marriage where

52、by he would support her while she was in medical school and then she would support plaintiff while he pursued his [*84] education." In a classic goose/gander twist, the wife left the husband shortly before her gra

53、duation from medical school. He sought "reimbursement" both under then Louisiana Civil Code article 161 (now article 121) and under the "contract." The co</p><p>　　This, of course, is wro

54、ng. The claimed agreement was not a matrimonial agreement: it did not affect any rule or principle of the property regime of the parties, and the form requirements of article 2331 were not applicable to the contract. If

55、they had been, the agreement also would have required compliance with the judicial findings requirement of article 2329 because it was entered into during the marriage. Nor was the object of the agreement any property of

56、 the parties, either separate or comm</p><p>　　In Washington v. Washington, a husband and wife entered into a written contract (an act under private signature) for the avowed purpose of settling "their

57、respective property rights and to agree on support provisions for the Wife and Children," including a specific provision for support of the wife's two children, who were not the husband's children. The contr

58、act provided that the agreement "may be offered in evidence" and, "if acceptable to the court, shall be incorporated by reference in any j</p><p>　　The contract in question was neither by auth

59、entic act nor was it an act under private signature duly acknowledged by the parties. Therefore, pretermitting the question of validity of the husband's agreement to support children of whom he is not the legal or na

60、tural father, we find the marital contract void for failure of the parties to comply with the form requirements of Article 2331. Therefore, the trial court correctly rejected the wife's reconventional demands.</p&

61、gt;<p><b>　　[*86] </b></p><p>　　The agreement was not a matrimonial agreement. The referenced articles 2328, 2329, and 2331 are not applicable to the agreement. It was an interspousal cont

62、ract, which has neither a judicial findings requirement nor any form requirement not applicable to contracts in general. Once again, the error seems to be the assumption that all agreements between spouses are matrimonia

63、l agreements.</p><p>　　The dual judicial findings requirement of a matrimonial agreement (if executed during the marriage) and the form requirements (whenever executed) are essential to the validity of that

64、type of interspousal contract. Under article 2332, lack of proper registry of the matrimonial agreement does not invalidate the matrimonial agreement as between the parties; however, lack of registry may render the agree

65、ment ineffective as to third persons:</p><p>　　A matrimonial agreement . . . is effective toward third persons as to immovable property when it is filed for registry in the conveyance records of the parish i

66、n which the immovable property is situated, and as to movables when filed for registry in the parish or parishes in which the spouses are domiciled. </p><p>　　These registry requirements regulate only the ef

67、fect of the matrimonial agreement as to third persons; although unrecorded, if the form and other requirements are met, the matrimonial agreement is valid as between the parties.</p><p>　　In contrast to a ma

68、trimonial agreement, other interspousal contracts do not have any special form requirements or other requirements because the parties are married to each other at the time of the agreement. They are subject only to the g

69、eneral rules governing the proof of obligations and the special rules governing the proof of some particular types of obligations. The latter include the form requirements for an inter vivos trust; for a sale of immovabl

70、e property; for a conventional mortgage; </p><p>　　There are no special registry requirements for interspousal contracts that are not matrimonial agreements. Depending upon the nature of the interspousal con

71、tract and its subject matter (object), there may be registry requirements in order for the interspousal contract to be effective as to third persons. These include the filing for registry requirements for the alienation

72、and encumbrance of immovables, donations of immovables, and contracts of partnership. </p><p>　　Under prior law, spouses were prohibited from entering into contracts with each other except in certain limited

73、 situations. The present matrimonial regimes law reverses this rule, providing that spouses can contract with each other to the same extent as persons who are not married to each other, except in certain limited situatio

74、ns. This freedom of interspousal contracting includes [*88] sales, donations, voluntary partitions of any or all of the community or co-owned separate assets, compromi</p><p>　　Louisiana Civil Code article

75、 2330 limits the contractual freedom of the spouses as to certain specified matters of public order or public policy. Spouses may not, either before or during marriage, renounce or alter the marital portion or the establ

76、ished order of succession, nor may they limit with respect to third persons the right that one spouse alone has under the legal regime [*89] to obligate the community or to alienate, encumber, or lease community proper

77、ty. These specific public policy</p><p>　　II. Valuation of Community Assets</p><p>　　Louisiana Revised Statutes Section 9:2801(A)(4)(a), regulating the procedure in an action to partition commun

78、ity property, provides that the court shall value the assets as of the time of trial on the merits. The act does not provide a formula for determining the value of the community assets. It has been suggested that an infl

79、exible formula for determining the value of a business would be impractical:</p><p>　　Business valuations methods are not an exact science and are basically guides to determine a fair market value for buyers

80、 and sellers of a given business. Here, the evaluation is made for the purpose of resolving community property disputes. Given the dynamics of businesses and business practices, factoring in circumstances that may be uni

81、que to [*98] the parties, an inflexible formula for determining value is said to be impractical. </p><p>　　The courts have had occasion to decide only a limited number of business valuation issues in commu

82、nity property partition actions. Although Section 9:2801(A)(4)(a) mandates valuation as of the time of the trial on the merits of the partition action, if the parties do not present valuation evidence as of that date, a

83、court does not err in making its valuations based upon the evidence submitted. The court is not required to value assets as of the date of trial when the parties do not submit curren</p><p>　　If a business h

84、as accounts receivables, their value may be discounted for collectibility and the cost of collecting the accounts. The average collection rates may be used in valuing accounts receivable. </p><p>　　Goodwill

85、of a professional person is not a factor in the valuation of the professional's practice because his goodwill results from his professional competence and his relationship with his patients or clients, and not from a

86、ny affiliation between the legal entity, of which he is an owner, and the patients or clients. Goodwill of a community-owned corporation, commercial, or professional business may be included in its valuation. [*100]Howe

87、ver, that portion of the goodwill attributable to any p</p><p>　　Goodwill has been defined, inter alia, as the value of a business resulting from the probability that the customers of the establishment will

88、continue their patronage. When a sale of a business to a third party is not contemplated, as in the case of the partition of community property, the value of the business should be determined without a discount because o

89、f the ownership of a minority interest in the business or because of lack of marketability of the business. </p><p>　　If the community asset to be valued is an interest in a partnership or corporation, the c

90、ourt must be careful to value the interest, not just the assets of the business entity. </p><p>　　Until recently, Louisiana courts, and the courts of nearly all states, rejected the consideration of future t

91、ax consequences in the valuation of property received in a community property partition, including a real estate partnership and a medical corporation.</p><p>　　In Hansel v. Holyfield, Mr. Hansel was allocat

92、ed non-qualified stock options worth $ 25,673,272, which he had to exercise by [*102] specified dates or lose the options. The difference between the "strike price" (the price at which the stock was to be pur

93、chased from the employer under the stock option agreement) and the market price of the stock at the time the option is exercised is taxed at rates applicable to ordinary income, and the exercise of the option triggers th

94、e tax liability. The inc</p><p>　　The trial court disallowed tax consequences not because it found the exercise of the options or the imposition of the taxes to be speculative, but, rather, because it found

95、the amount of taxes to be speculative. However, at trial, Mr. Hansel submitted evidence that he is subject to the maximum applicable tax rate (39.5% in federal taxes and 6% in state taxes). Although it is possible that M

96、r. Hansel may be taxed at a lower rate, the rate of taxation is no more speculative than the value of the s</p><p>　　Mr. Hansel argued in the appellate court that his situation was different from that of the

97、 spouses in the cases in which future tax consequences in the valuation of assets were disallowed. In those cases, both the fact of whether there would ever be any taxes due upon disposition of the property received in t