## Facts

- Roselyn Zito Bordes and Gary Bordes married on December 5, 1981.
- The community terminated upon the May 8, 1991 divorce petition.
- Gary worked for the Water Department of Jefferson Parish beginning May 1, 1974.
- On November 17, 1994, Gary was declared totally disabled due to aplastic anemia and avascular necrosis of his hips.
- After the disability determination, Gary began receiving disability retirement benefits from the Parochial Employees’ Retirement System of Louisiana and the Employees’ Retirement System of Jefferson Parish, totaling $1,813.93 per month.
- In October 1995, Roselyn filed to partition former community property; the parties resolved several items by consent judgment.
- The parties also agreed that Roselyn would receive a 23% interest in Gary’s regular retirement plan through a QDRO effective May 17, 2012.
- The remaining contested issue was whether Gary’s disability retirement benefits were community property subject to partition.

## Issues

1. Whether disability retirement benefits that begin after termination of the community, and are payable only upon proof of total disability, are community property or the disabled spouse’s separate property.

## Decision

- The Louisiana Supreme Court reversed.
- The court held the disability retirement benefits at issue were Gary’s separate property and not subject to partition as community property.
- The court rejected the view that the benefits were simply a substitute for ordinary retirement benefits earned during the community.

## Legal Principles

- Community property includes rights in retirement benefits to the extent attributable to employment during the community, but classification depends on the nature and purpose of the payments.
- Disability retirement benefits that are triggered by disability, require continued proof of disability, and function as income replacement for lost earning capacity are treated as the disabled spouse’s separate property when the disability and entitlement arise after community termination.
- A post-dissolution, disability-contingent right is not classified as a community asset merely because it is paid through a retirement system; it is distinct from ordinary retirement benefits that accrue predictably through service.

## Conclusion

Because Gary’s entitlement to disability retirement benefits arose only after the community ended and the payments compensated him for post-community loss of earning capacity due to total disability, the benefits were classified as his separate property and were not partitioned as community assets.


Bordes v. Bordes, 730 So. 2d 443 (La. 1999)