LA BAR EXAM CODE I: PERSONS AND DOMICILE

Question 1

What is a natural person?

Answer 1

A “natural person” is a human being.

Question 2

What is a juridical person?

Answer 2

An entity to which law attributes personality is a juridical person.

Question 3

What is a person’s domicile?

Answer 3

The domicile of a natural person is the place of his habitual residence. The domicile of a juridical person is either the state of formation or the state of its principal place of business, whichever is more pertinent. Domicile requires presence and intent.

Question 4

What is a marriage?

Answer 4

According to Louisiana law, marriage is a legal relationship between two people created by civil contract.

Question 5

What are the prerequisites to a valid marriage?

Answer 5

For a marriage to be valid, there must be (i) no legal impediments; (ii) a marriage ceremony; and (iii) mutual consent of both parties expressed at the ceremony.

Question 6

What are the legal impediments to a valid marriage?

Answer 6

Legal impediments to a valid marriage are (i) an existing marriage, (ii) the spouses are too closely related, or (iii) age. Minors under 16 can not contract marriage and minors 16 or 17 can not contract with a major who is older by three years or more.

Question 7

What makes a marriage absolutely null?

Answer 7

A marriage is absolutely null when contracted either: (i) in violation of any legal impediment or (ii) without a valid marriage ceremony attended by both parties. An absolutely null marriage is devoid of all legal effect from the moment of its inception.

Question 8

What makes a marriage relatively null?

Answer 8

A marriage lacking consent may be declared relatively null. A relatively null marriage is valid and produces civil effects until officially declared null by the court.

Question 9

What are the civil effects of marriage?

Answer 9

The civil effects of marriage include the right to community property and the right to receive spousal support.

Question 10

What is the putative marriage doctrine?

Answer 10

The putative marriage doctrine (children are considered marital children, spouse eligible for spousal support) applies when a marriage is absolutely null, but at least one of the spouses married in good faith (that is, held an honest and reasonable belief that there were no legal impediments to the marriage).

Question 11

When do the civil effects of a putative marriage end?

Answer 11

Ordinarily, civil effects end when a party’s good faith ends. However, when the cause for nullity of the marriage is the other party’s (ex. wife’s prior undissolved marriage) a spouse’s civil effects will not end even though he is no longer in good faith. His civil effects will continue until his marriage is pronounced null or until he remarries.

Question 12

Can the good faith party of a putative marriage receive final spousal support?

Answer 12

To receive final spousal support, the claimant spouse must be free from fault.

Question 13

What is interim spousal support?

Answer 13

Interim spousal support maintains the financial status quo until judgment of divorce. A court may award interim support in divorce: (i) when one spouse has a need, and (ii) when the other spouse has the ability to pay, (iii) considering any interim or final child support obligation, and (iv) based on the standard of living the parties enjoyed during the marriage. Fault is irrelevant. An award of interim spousal support generally terminates 180 days from the judgment of divorce.

Question 14

What is final spousal support?

Answer 14

A court may award final periodic support to a party: (i) based on the needs of the claimant spouse; (ii) based on the ability of the other party to pay; and (iii) only when the claimant spouse is free from fault prior to the filing of a proceeding to terminate the marriage. If the divorce is based on fault or abuse, that spouse is presumed to be entitled to final support.

Question 15

How does a marriage terminate?

Answer 15

Marriage terminates on: (i) death of either spouse; (ii) a judicial declaration of nullity; or (iii) the entry of a judgment of divorce.

Question 16

What are the divorce actions?

Answer 16

Divorce actions are premised on (i) no-fault divorces and (ii) fault-based divorces. A defense to a divorce action is reconciliation.

Question 17

What are the no-fault divorces?

Answer 17

There are two no-fault divorce action options: (i) 102, separation after service; (ii) 103(1) separation prior to filing petition.

Question 18

What are the fault divorces?

Answer 18

There are three fault based divorce action options: (i) immediate adultery divorce; (ii) immediate felony-conviction divorce; (iii) immediate abuse divorce.

Question 19

What is an avowal action?

When does a paternal presumption apply?

Answer 19

An avowal action is when a man can file suit to establish his paternity of a child. The standard of persuasion is preponderance of the evidence.

A paternal presumption applies when a man marries the mother of a child who is not filiated to another man and acknowledges the child by authentic act, with the concurrence of the mother. If the child is presumed to be the child of the husband, the husband would have 180 days to disavow, which runs from the date of the marriage or the date of the acknowledgement, whichever occurs later. The time period is preemptive - it cannot be suspended or interrupted.

If the child is presumed to be the child of another man, the action must be filed within one year from the birth of the child UNLESS the mother IN BAD FAITH deceived the father regarding his paternity.

Then, the action must be filed within one year from the day the father knew or should have known of his paternity, or within 10 years from the birth of the child whichever occurs first.

Question 20

What factors will a court consider when awarding child custody?

Answer 20

Overall the court will consider the best interest of the child when awarding custody. The court will consider twelve factors when assessing the child’s best interest including: PAPA HELPS CHAMP –

Permanence of the custody home;
Ability to nurture, such as the capacity and disposition of the party to give love and guidance to continue the child’s education and rearing;
Past caregiver and the responsibility for the care of the child.
Ability to provide for the child’s material needs;

Home, school and community history of the child;
Emotional ties between the parties and the child;
Length (distance) between the parties’ residences;
Preference of child considered if child is old enough and preference is reasonable;
Stability of the home and adequate environment and the desirability of continuing that environment;

Cooperation with the other party;
Health (mental and physical) of the parties;
Abusive history of the parties
Moral fitness of a party as it affects the child;
Prior relationship with the child

Question 21

What is interdiction?

Answer 21

Interdiction is available as a protective regime to put the care of a person who has an infirmity and therefore cannot make reasoned decisions regarding themselves or their property in the hands of a curator to perform those tasks.

Question 22

What is an absent person?

Answer 22

An absent person is defined as one who has no representative in this state and his whereabouts cannot be ascertained with diligent effort.

Question 23

What happens if an absent person reappears?

Answer 23

When a person who has been declared dead reappears, he is entitled to recover his property that still exists in the condition in which it is found from those who took it as his successors or from their transferees by gratuitous title. If the property has been alienated (i.e., sold), the formerly absent person is entitled to recover the net proceeds of the alienated property, and if the property has been encumbered, the formerly absent person may recover for its diminution in value.