Flashcards in CODE I Deck (290)
Natural personality commences from the moment of live birth and terminates at death.
live birth is characterized by crying or respiration
Termination of personality can be established by licensed doctor’s certification (of irreversible cessation of spontaneous respiratory and circulatory functions or, if kept alive artificially, irreversible and total cessation of brain function), disappearance under circumstances such that death seems certain (plane crash), or judicial declaration of death can be obtained from a court if the person has been absent for five years.
An unborn child is considered to have natural personality for whatever relates to its interests from the moment of conception but must be born alive for natural personality to commence.
Louisiana law defines a juridical person as an entity to which law attributes personality such as states, municipalities, corporations, by-laws, and partnerships governed by provisions of their charters rather than being indistinguishable from its members.
Ova are juridical persons until implanted in the womb at which point they become natural persons.
A person may have multiple residences but only one domicile
To change domicile, a person must move his residence (actual presence required) to another location with the intent to make it his habitual residence.
Could argue that: placement of furniture, matrimonial home, travel to residence to reconcile, husband’s moving ahead to prepare home.
Domicile of Spouses/Minors/Interdicts/Military Personel/Venue/Subject Matter Jur
Barbri P&D outline p. 4-5
Prerequisites for valid marriage
For a marriage to be valid there must be a valid marriage ceremony in which both parties express consent in the absence of legal impediments or vices of consent.
Barbri P&D outline p. 8-9
Relative Nullity of Marriage
A marriage may be declared relatively null if a party does not expressly consent or they suffer from a vice of consent such as duress through actual/threatened violence or criminal prosecution, lacking capacity of discernment (insanity, drunkenness, mental retardation), or minority w/o parental consent.
A relatively null marriage is valid until it is officially declared null by the court and such a marriage produces civil effects until it is officially declared null, nullity must be declared in a judicial proceeding by the party whose consent was not free.
Absolutely Null Marriage
A marriage is absolutely null when contracted without a valid marriage ceremony (performed by a qualified third-party celebrant, both parties in attendance, prior marriage license may be required, signed certificate, 2 competent witnesses) or where there is a legal impediment (such as bigamy, same-sex marriage, and incest)
An absolutely null marriage is devoid of all legal effect from the moment of its inception. A judicial declaration of nullity is not required but civil effects can arise and flow to one or both parties under the putative marriage doctrine.
Putative Marriage Doctrine
The putative marriage doctrine potential applies to an absolutely null marriage when one of the spouses was in good faith in contracting the marriage.
Good faith is defined as the honest and reasonable belief that there exists no legal impediment to the marriage.
The putative marriage doctrine applies to errors of law (null divorce) as well as errors of fact (no divorce).
There is a presumption of good faith for the party making a putative marriage claim, the burden to prove otherwise is on the party challenging the putative marriage.
A party’s first-hand actual knowledge of an impediment vitiates good faith and second-hand knowledge of an impediment imposes a duty to inquire.
Civil Effects of Putative Marriage
The civil effects of a putative marriage are the same as in a normal marriage except with regard to property that would have been community property had the marriage been valid in cases where there was a first spouse (If putative wife is in good faith, then putative wife acquires husband’s half of community property; If both spouses are in good fatih, then husband’s heirs acquire his half of community property and the first wife and putative wife split the remaining half.)
The civil effects of putative marriage continue as long as the putative spouse remains in good faith unless bigamy is the impediment at issue in which case the civil effects continue after nonbigamous spouse learns of impediment until either an official declaration of nullity or nonbigamous spouse remarries.
Provisional and Incidental Proceedings in Action of Nullity
Barbri P&D outline p. 12-13
Incidents of Marriage
Husbands and wives owe each other the mutual duties of negative and positive fidelity, support (necessities of life), assistance (care for ill/infirm). These duties are not enforceable during marriage and cannot be derogated from by contract.
Marriage does not change either spouse’s surname, but married persons may use the surname of either or both spouses (widowed/divorced/remarried woman may use former spouse’s name).
Termination of Marriage
Marriage terminates only upon the death of either spouse, a judicial declaration of nullity if the marriage is relatively null, a court order authorizing the spouse of a presumed dead active duty military personnel to remarry, or a judgment of divorce.
Article 102 permits the divorce the parties without fault after parties have lived apart continuously for the specified time period following the service of petition for divorce or a written waiver of service.
Article 103(1) permits a simpler alternative to an action under Article 102 where the parties need only live separate and apart continuously for the specified time period before the petition is filed.
If there are no minor children of the marriage being terminated, the parties must live separate and apart continuously for 180 days.
If there are minor children of the marriage being terminated, the parties must live separate and apart continuously for 365 days unless a court finds that the spouse physically or sexually abused the other spouse or the child or there is already an injunction in place when the divorce is filed protecting the spouse or child from abuse (in which case 180 days).
No-Fault Divorce Procedure
Barbri P&D outline p. 15-16, 17
Article 103(2) provides for an immediate adultery divorce (no physical separation required), but requires specific proof leading fairly and necessarily to the conclusion that adultery has been committed through corroborated testimony (admission by guilty spouse not sufficient) but sexual intercourse is not necessary for adultery.
Article 103(3) provides for an immediate felony-conviction divorce (no physical separation required) where one spouse is convicted of a felony and sentenced to either death or hard labor.
Defenses to Divorce
Article 102 procedural defect.
Reconciliation extinguishes a divorce action and is characterized by resumption of life together with the mutual intent to resume the marriage. Sex is not sufficient, must have intent. For fault-based divorces, some element of forgiveness or condonation after knowledge of offense may amount to reconciliation.
The mental condition of an at-fault spouse can be a defense if it caused or induced the faulty conduct.
Actions Incidental to Divorce
In a divorce action under article 102 or 103 other matters may be resolved as well
this includes injunctions against encumbering, waisting, selling or disposing of community property, prohibiting a spouse from physically or sexually abusing spouse or children, and against harassment, violence or contact with spouse or children)
this also includes child custody, visitation and support, spousal support, and use of former matrimonial domicile (even if separate if spouse has physical/legal custody of minor children of marriage until earliest of partition of community or 180 days, can use community spousal residence until further order of the court) and use of community movables and immovables (in line with the best interest of the family and including personal property such as food and eating utensils deemed necessary for safety and well being of spouse and children in spouse’s custody.
Domestic Abuse Assistance Act
Barbri P&D Outline p.20
Interim Spousal Support
The purpose of interim spousal support is to maintain the status quo for both parties without unnecessary economic dislocation until a determination of the amount of final support can be made.
The spouse seeking interim spousal support, the “claimant” bears the burden of proving entitlement.
For an award of interim spousal support, a court considers the needs of the claimant spouse (income is primary, don’t consider assets unless they can be invested w/o risk most courts don’t consider earning capacity of stay-at-home spouse) the ability of the other party to pay (income, assets and maybe liabilities/earning capacity), and the standard of living the parties enjoyed while they were married.
fault is irrelevant to a determination of interim spousal support, the primary income earner pre-separation is typically the payor.
The trial court is vested with a great deal of discretion in determining whether and how much interim spousal support is appropriate and will only be overturned for abuse of discretion.
Interim spousal support is terminated by the judgment awarding/denying final spousal support or 180 days, whatever is shorter, can be extended upon showing of good cause.
Interim spousal support may be modified if there is a material change in circumstances (remarriage not sufficient) or terminated if no longer necessary.
Waiver of interim spousal support in a matrimonial agreement is against public policy and thus invalid.
Final Spousal Support
The court may award final periodic support to a party free from fault based on the needs of the claimant, the ability of the other party to pay, and the standard of living that the parties enjoyed while they were married.
In making a determination of final spousal support the court shall consider all relevant factors which may include: income and means of both parties including liquidity of assets, financial obligations of the parties, the earning capacity of the parties, the effect of child custody on earning capacity, “rehabilitative support” temporally limited support to help claimant acquire appropriate training/education/employment, the age and health of the parties, the duration of the marriage (habituation to dependency as if effects earning capacity), and the tax consequences to either/both parties.
The claimant must prove freedom from fault pre-petition that is both of a serious nature and independently contributory or a proximate cause of the termination (Article 102(2) or (3) divorce, intemperance or cruelty that renders living together insupportable (once incident sufficient but should be a series, reconciliation condones acts but future acts can “revive” series; but not incompatibility, nagging, fussing, criticism), abandonment without lawful cause and refusing to return after request (not leaving with lawful cause or living apart by agreement; abandonment can be “constructive” if forced/ordered out), public/infamatory defamation, attempted murder, fugitive spouse, intentional nonsupport in necessitous circumstances, failure to live up to marital duties of fidelity.
Condonation, mental illness, mental incapacity, physical infirmity, reconciliation, and provocation (?) can be a defense to fault.
The amount of final periodic support awarded shall not exceed one-third of the obligor’s net income.
Same standards for modification/termination as interim spousal support.
Enforcement/Procedure/Jurisdiction/Preemption for Support Awards/Modifications
Barbri P&D outline p. 26-27
Contribution to Earning Capacity of Spouse
A party that has made financial contributions to their spouse’s training or education during marriage that increased the other spouse’s earning power has a claim to recoup those financial contributions if they did not benefit from such during the marriage.
The claim arises when the divorce action is filed and prescribes 3 years from the signing of the judgment of divorce.
Calculation/Characterization/Nature of Financial Contribution Claim/Award
Barbi P&D outline p. 28
Child Custody Standard
In a proceeding for divorce, or thereafter, the court shall award custody of a child in accordance with the best interests of the child, the following factors bear on the court’s finding of best interest:
Emotional ties - love affection and emotional ties between party and child
Ability to nurture - Capacity and disposition of party to give love and guidance, and to continue the child’s education and rearing.
Ability to provide - Capacity of party to meet the child’s material needs.
Prior relationship - Length of time child has lived in stable and adequate environment and the desirability of continuing that environment.
Stability - Permanence, as a family unit, of existing or proposed custody home
Moral Fitness - Moral fitness of party, as it affects child.
Health - Party’s mental and physical health
History - Home, school and community history of child
Preference of child - reasonable preference of the child if old enough to decide.
Cooperation with other party - willingness and ability of party to foster child’s relationship with other party.
Location - Distance between parties’ residences.
Past Caregiver - Responsibility for care of child previously exercised by parties.
Child Custody Preference and Allocation of Authority and Responsibility
Barbri P&D outline p. 30-31
Change in Child Custody
In determining the requirements for a change in a custody arrangement depends upon whether the custody decision was a consent judgment or a considered decree.
in a consent judgment the trial court does not consider evidence of parental fitness and the party seeking modification need prove only that there has been a material change in circumstances and that the change is in the best interests of the child.
if the custody decision was a considered decree, which does take into account evidence of parental fitness, the court will apply the Bergeron standard and the party seeking modification must show that a change in circumstances has occurred such that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree or that harm is likely to be caused by a change in environment is substantially outweighed by its advantages to the child.
Some courts have applied the Bergeron standard to motions to modify the designation of a domiciliary parent.
Custody of Illegitimate Children
Barbri P&D outline p.31-32
Visitation by Noncustodians
Barbri P&D outline p. 32-33