How Community Property Jurisdictions Can Avoid Being Lost in Cyberspace

• Author: Sally Brown Richardson
• Position: Associate at Skadden, Arps, Slate, Meagher & Flom. J.D./D.C.L., Louisiana State University; B.A., Georgetown University
• Pages: 89-125

How Community Property Jurisdictions Can Avoid

Being Lost in Cyberspace

Sally Brown Richardson*

TABLE OF CONTENTS

Introduction ............................................................................89

I. Classification ..........................................................................92

A. Classification of Property as Community or Separate .....93

B. Example of Virtual Property: Blogs ................................97

C. Classification of Blogs ...................................................100

II. Management .........................................................................105

A. Management of Community Property ...........................106

B. Example of Virtual Property: Twitter Accounts ............109

C. Management of Twitter Accounts .................................111

III. Termination ..........................................................................115

A. Termination of the Community......................................115

B. Example of Virtual Property: Facebook Profiles ...........118

C. Termination and Facebook Profiles ...............................121

Conclusion ...........................................................................125

INTRODUCTION

Things have changed. Before tying the knot, a man in the

1950s might have owned a car, some furniture, a few pots and

pans, a closet half-filled with clothes, and the money in his

checking account. A woman entering holy matrimony in the 1970s

might have had a car, some furniture, a few pots and pans, a closet

Copyright 2011, by SALLY BROWN RICHARDSON.

* Associate at Skadden, Arps, Slate, Meagher & Flom. J.D./D.C.L.,

Louisiana State University; B.A., Georgetown University. The author wishes to

thank the Board of Editors from Volumes 71 and 72 of the Louisiana Law

Review for all of their work organizing and hosting the 2011 Louisiana Law

Review Symposium. All views and any errors herein are solely attributable to

the author and do not r eflect the views of the author’s employer o r its clients.

90 LOUISIANA LAW REVIEW [Vol. 72

filled with clothes, the money in her checking account, the money

in her savings account, and a few shares of stock. By the 21st

century, a couple walking down the aisle might each already

possess a car, some furniture, a few pots and pans, a closet filled

with clothes, the money in his checking account, the money in her

savings account, shares of stock, a certificate of deposit account,

two email accounts, one Facebook profile, and a blog. Things,

quite literally, have changed.

While time has altered the items that people own, a few

constants remain: people still marry, people still divorce, and

people still die. And, as they have for thousands of years, marriage,

divorce, and death still affect the things people possess,

particularly in community property jurisdictions where there is a

presumption that all property created or acquired during marriage

is part of the community. This presumption takes effect from the

moment vows are exchanged, thereby impacting not only how

property is divided at the termination of the marriage, but also how

property is managed throughout the community.1

In considering the future viability of the community property

regime, we must contemplate how jurisdictions will respond to the

changing things in our lives. Particularly, we must consider one

burgeoning form of property: virtual property. “[V]irtual property

is code that mimics the properties of real-space objects.”2 Things

like blogs, Twitter accounts, and Facebook profiles create rights in

virtual property that exist only online, yet maintain the

interconnected, physical, and persistent qualities associated with

tangible property.3 Given the proliferation of virtual property and

the economic gains to be reaped from such property,4 it is only a

matter of time before divorcing couples litigate how virtual

property should be classified and managed during marriage or

divided and valued at the termination of a marriage. Historically,

community property jurisdictions have struggled when first

1. See Terry L. Turnipseed, Community Property v. The Elective Share, 72

LA. L. REV. 161 (2011) (discussing how community property regimes impact

property during the marriage, as compared to separate property regimes that

only impact property at the termination of the marriage).

2. Joshua A.T. Fairfield, Virtual Property, 85 B.U. L. REV. 1047, 1063

(2005).

3. See Sally Brown Richardson, Classifying Virtual Property in

Community Property Regimes: Are my Facebook Friends Considered Earnings,

Profits, Increases in Value, or Goodwill?, 85 TUL. L. REV. 717, 747–57 (2011)

(describing virtual property and examples of virtual property); F. Gregory

Lastowka & Dan Hunter, The Laws of the Virtual World, 92 CALIF. L. REV. 1,

37–43 (2004) (describing virtual property).

4. See Richardson, supra note 3, at 720–21 (discussing the social and

economic impact of virtual property).

2011] AVOID BEING LOST IN CYBERSPACE 91

reacting to new forms of property,5 and there is no reason to think

that governing virtual property will pose any easier challenge

initially.

This Article continues an effort to bring to light some questions

that will arise when community property regimes begin facing

issues concerning virtual property6 by examining the classification

of virtual property as community property or separate property, the

management of community virtual property, and the effect the

termination of a community will have on virtual property. In doing

so, this Article reaches two conclusions. First, to avoid being lost

in cyberspace, courts and legislatures in community property

jurisdictions must fully understand how virtual property operates

and, more specifically, how the particular virtual property in

question operates. This conclusion appears remarkably self-

intuitive; prior to drafting legislation and decisions, lawmakers and

judges should always fully understand any impacted property.

While this is undoubtedly true, the first conclusion serves as an

important reminder, for, as demonstrated herein, while different

types of virtual property may appear similar on a computer screen,

the underlying code of such properties may be very different and

warrant different outcomes in the law. Before any precedent is set

regarding how virtual property should be classified, managed, or

valued, the property itself must be fully understood.

Building on the understandings gained after applying the first

conclusion, the second conclusion this Article reaches is that,

generally speaking, new laws governing virtual property need not

be created. Though most community property rules were initially

codified hundreds of years ago,7 our well-aged community

property constructs adequately govern virtual property in most

cases. There are some areas of the law that may require slight

enhancements—particularly our rules regarding the management

of community property—but community property laws should not

5. See, e.g., KATHERINE S. SPAHT & RICHARD D. MORENO, MATRIMONIAL

REGIMES § 3.12, in 16 LOUISIANA CIVIL LAW TREATISE 125–26 (3d ed. 2007)

(commenting on the complications of classifying trusts under Louisiana

community property law); J. Wesley Cochran, It Takes Two to Tango!:

Problems with Community Property Ownership of Copyrights and Patents in

Texas, 58 BAYLOR L. REV. 407 (2006) (discussing the interplay of copyrights

and patents with Texas community property law); Thomas R. Andrews, Income

from Separate Property: Towards a Theoretical Foundation, 56 LAW &

CONTEMP. PROBS. 171, 175–76 (1993) (noting the difficulties in classifying

business interests).

6. See Richardson, supra note 3 (discussing how virtual property should be

classified in community property regimes).

7. See WILLIAM Q. DE FUNIAK & MICHAEL J. VAUGHN, PRINCIPLES OF

COMMUNITY PROPERTY § 8 (2d ed. 1971).