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Flashcards in Code I and Code II Deck (42):

When will a court approve a post-nuptial marital agreement?

If the agreement is understood by the spouses and it is in their best interest.


What can you NOT do in a matrimonial agreement?

Renounce or alter the marital portion;Modify the established order of succession;Limit the right of one spouse to manage or to alienate, encumber, or lease CP; orWaive interim spousal support


What burden is imposed on the spouse seeking to rebut the presumption of CP?

Preponderance of the Evidence


When are assets classified?

At the moment of acquisition (even if the price is not fully paid--future payments will not alter the classification of the property either)


What is an Estoppel Based on a Double Declaration?

If in an act of acquisition of property, a spouse declares that s/he is using separate funds to acquire the new property, AND that the property is being acquired as separate property, then the spouse who concurs in the act will be estopped in the future from claiming the property is CP.


When both CP and SP are used to acquire property, how is it classified?

It's classified as CP, unless the amount of CP used in acquiring it was inconsequential (i.e., probably less than 20%, but there's no set number)


How can a spouse reserve the fruits of their own SP?

She can do this without the consent of the other spouse by: (1) executing an authentic act OR an act under private signature duly acknowledged; (2) recording that act in the records of the parish where the immovable is located (or where she is domiciled, if it's a movable); and (3) giving a copy of the reservation to her spouse.


How do you determine what percentage of a pension is CP?

Use the Sims Formula: (Years of service during marriage) divided by (Total years of service) multiplied by (Funds in the pension) equals CP portion


Though equal management is the default scheme in Louisiana, what property does a spouse need concurrence to alienate, lease, or encumber?

CP immovables, furnishings in the family home, all or substantially all of the assets in a CP enterprise, movables registered in other spouse's name, and any donation of CP


What are the duties of the spouses after termination of the CP regime but before partition?

Spouses are co-owners of the CP, and must preserve and prudently manage the property.They need concurrence for any alienation, lease or encumbrance of CP.


How can a partition of CP be done?

Judicially or Voluntarily at any time.These partitions are subject to general contract rules, and a partition can be set aside if one spouse doesn't get at least 75% of his/her share (5 year prescriptive period).


What do the spouses get when the common spouse in a putative marriage dies?

If common spouse was in BF: the other two spouses each get 1/2 of his/her share of the CP.If common spouse was in GF: the common spouse's 1/2 interest in CP goes to his/her estate, and each putative spouse gets 1/4.


What is the marital portion?

This is a sum given to the surviving spouse, if s/he was poor in comparison to his/her spouse when the spouse died.When that's the case, surviving spouse gets:- If decedent has no FH: 1/4 of their estate- If decedent has 3 or less kids: UF over 1/4 of their estate- If decedent has 4 or more kids: a child's share in UFIt's capped at $1m. Life insurance, pension proceeds, etc. count as a credit toward the marital portion.


What is the domicile of a natural person?

His or her habitual residence.


What three duties do spouses owe each other?

Fidelity, support, and assistance


102 Divorce

This is a no-fault divorce. It's the faster way, because once divorce is entered, everything is retroactive to the date the petition was filed. Spouses need to live separate and apart for either 180 or 365 days after service of the petition or written waiver of service.


103(1) Divorce

This is a no-fault divorce.It's simpler than the 102 divorce.Parties must live separate and apart for either 180 or 365 days before the petition is filed. If no answer is filed within 15 days, a preliminary default can be entered after 16 days.


103(2) Divorce

Immediate Adultery DivorceThe adultery must be proved at trial by corroborated testimony. Proof must be specific, and the admission of the adulterous spouse is not enough. The divorce is immediate and a period of physical separation is not required.


103(3) Divorce

Immediate Felony Conviction DivorceThe spouse must be convicted of a felony and must be sentenced to death or imprisonment at hard labor. There's no period of physical separation required.


103(4) and 103(5) Divorces

Immediate Divorce for AbuseThe spouse either physically or sexually abused the spouse or a child of either of the spouses, regardless of whether there was prosecution; ORThere's a protective order or injunction in place seeking to protect the spouse or a child from abuse.


When is interim spousal support granted, and when does it terminate?

When one spouse has a need and the other spouse has the means to pay. It's based on the standard of living the parties enjoyed during the marriage. It's intended to maintain the status quo. Award terminates at the judgement of divorce, unless the claimant has not had a hearing on a request for final spousal support.If circumstances of either party materially change, the award may be modified or terminated.


When is final spousal support awarded, and when does it terminate?

It may be awarded when a spouse is free from fault prior to the filing of the divorce action.It may be awarded when a claimant is unable to meet his/her necessary expenses.The obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.


What factors will a court consider in awarding the amount and duration of final spousal support?

Income and means of the parties;Financial obligations of the parties;Earning capacity of the parties;Effect of child custody on a party's earning capacity;Time necessary for claimant to acquire appropriate education, training, or employment;Health and age of the parites; andExistence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant


What constitutes fault that would preclude an award of final spousal support?

The fault must have led to the breakup of the marriage. It must be an independent contirbutory or proximate cause of the separation.Adultery, Conviction of a felony and sentence to hard labor or death,Intemperance or cruelty,Abandonment,Defamation,Being a fugitive from justice,Nonsupport in necessitous circumstances, andFailure to live up to three spousal duties of fidelity, support, and assistance


What is the time period in which to seek spousal support after a divorce?

It's a peremptive period of three years.


When are child custody orders modifiable?

They're always modifiable, and are always based on the best interest of the child.


What are the factors a court will consider in determining what's in the best interest of the child?

• Love, affection, and emotional ties between parties and child;• Capacity and disposition of each party to give the child love, affection, and spiritual guidance; • Capacity and disposition of each party to continue the education and rearing of the child;• Ability of each party to meet the child's material needs;• Desirability of continuing the child's current environment;• Permanence as a family unit;• Moral fitness of each party as it affects the welfare of the child;• Mental and physical health of the parties;• Home, school, and community history of the child;• Reasonable preference of the child;• Willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other parent; • Distance between the parties' residences; and• Responsibility for the care and rearing of the child previously exercised by the parties


What does a Joint Custody Implementation Order do?

It awards custody of the child to both parents jointly. It guides the parties in living with one another and the child under the joint custody arrangement. It allocates the time periods during which each parent shall have physical custody.It allocates the legal authority and responsibility of the parents.It designates a domiciliary parent.


If the parents cannot agree on a custody arrangement, and joint custody is not in the BIOC, what should the court do?

If either parent can prove by clear and convincing evidence that sole custody is in the BIOC, then sole custody should be awarded.


What does a parent need to show to modify a custody order?

If it was a considered decree, use the Bergeron standard. There, you 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. Proponent must show by clear and convincing evidence that the harm likely to be caused by a change in enviornment is substantially outweighed by its advantages to the child. If it was a consent judgment, a party seeking modification of the decree only needs to prove that there's been a material change in circumstances and the proposed modification is in the BIOC.


When can you seek to modify an interdiction, and what factors will the court consider?

You can seek to modify it for good cause.Factors to consider:• Whether the curator has or will misapply, embezzle, or remove the interdict's property• Curator's failure to render any account required by law• Curator's failure to obey a court order• Curator's gross misconduct or mismanagement of duties• Curator's incapacity to perform duties• Abuse of the interdict• Failure to educate the interdict• Failing to provide the interdict with as much independence as possible


What is the Greenlaw Rule?

If the fraction that would otherwise be used to calculate the legitime is greater than what the forced heir would inherit by the laws of intestacy, then he gets the lower of the two fraction
.Really only applies if there are more than five children


How and why do you calculate the Active Mass?

Calculate the active mass to determine the forced portion of a decedent's estate. Multiply active mass by the forced portion, then divide that by the number of FH.Active Mass Calculation: value of estate property (minus) estate debts (plus) donations made within three years before decedent's death


How can collation be done?

Either in kind or by taking less.In kind: giving the property backBy taking less: donee diminishes the portion to which s/he is entitled in proportion to the value of the giftIf property to be collated is immovable, collation can be done in either way.If property to be collated is movable, it must be done by taking less.


What does a spendthrift clause in a trust do?

Makes it so the beneficiary cannot voluntarily or involuntarily alienate the property in the trust.


What can a beneficiary do if they don't like the way their trust is being managed?

They can petition the court to:1. Compel trustee to act more prudently2. Enjoin trustee from committing further breach3. Compel trustee to fix situation appropriately4. Remove the trustee


What can a charitable trust be created for?

For relief of poverty, advancement of education/religion, promotion of health/gov’t/municipal resources, etc.. .Perpetual duration!


What is a trust?

A legal relationship resulting from a transfer of title of property to a person [trustee] to be administered by him as a fiduciary for the benefit of another, the beneficiary.


Who can be the beneficiary of a trust?

1. A person "in being” and objectively ascertainable from the trust instrument when trust is created (i.e., a natural person, corporate entity, partnership, any legal enterprise that can receive property, the settlor)2. Class trust exception: you can create a trust for a class of people, so long as at least one member of the trust is in existence when the trust is established.→ descendants up to 4th degree, collaterals – siblings, their kids, grand-nieces/nephews


What are the form requirements for trusts?

If done inter vivos, need authentic act or act under private signature duly acknowledged.If done mortis causa, must be done in valid will form.Must be recorded if there's immovable property in the trust. You can record the entire trust or an extract of the trust with the important info (name of trust, description of property, names of beneficiaries and trustees, etc.).


What can a trustee do?

1. Incur reasonable/necessary expenses to maintain trust property2. Sell/lease trust assets3. Mortgage/pledge trust property4. Settle/abandon trust claims5. Exercise all stock powers→ unless expressly excluded by trust instrument→ subject to abuse of discretion test


What can't a trustee do?

1. Loan trust funds to himself/relatives/biz assocs2. Directly/indirectly buy or sell trust funds to himself/ relatives/ biz assocs3. Commingle personal prop w/ trust prop4. Serve as officer/atty for business created after trust which trust funds are invested in