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Flashcards in Persons and Domicile Deck (84):
1

When does natural personality commence?

Natural personality commences from the moment of live birth and terminates at death.

Exception: a fetus need not be born alive for a wrongful death action to be maintained against the person who caused its death, but a survival action on behalf of the fetus is not authorized.

2

What is the effect of natural personality?

All natural person enjoy a general legal capacity (as opposed to contractual capacity) to have rights and duties. Majority begins at 18.

3

WHen does natural personality terminate?

Natural personality terminates at death. Death is established by any of the following:

1) Doctor's certification of death. Death includes a) the irreversible cessation of spontaneous respiratory and circulatory functions, and b) if kept alive artificially, irreversible cessation of brain function.
2) Judicial declaration of death. Can be a) presumed dead--person has disappeared under circumstances that his death seems certain, established by a preponderance of the evidence; b) a person has been an absent person for 5 years.

4

Conflict of laws regarding personhood status

The status of a natural person and the effects of that status are governed by the law of the state whose law would be MOST SERIOUSLY IMPAIRED if its law were not applied.

5

What are examples of juridical persons?

Business and governmental organizations.

In vitro fertilized ovum. It becomes a natural person when implanted in the womb. An ovum has no inheritance rights unless it is born alive. An ovum does not retain rights to inherit from its biological donor parents when it's donated to another couple.

6

Where is a person's domicile?

Natural person: habitual residence. Requires actual residence in a particular location + intent to have that parish as habitual residence.

Juridical person: the state of its formation or its PPB, whichever is more pertinent to the particular issue.

If no habitual residence, any place of residence may be considered one's domicile.

7

How does one change domiciles?

Move residence to another location AND intent to make new residence habitual residence. This can be proven by circumstantial evidence. To change domiciles, one must overcome the legal presumption that domicile hasn't changed.

8

Domicile as a matter of status

Spouses have either a common domicile or separate domiciles. Unemancipated minor children have domicile of parents with whom the minor USUALLY resides (parent, tutor). Full interdicts have domicile of their creator; limited interdict's domicile continues.

9

What are some examples of when a person's domicile is important?

Venue: custody of a minor may be brought where the party is domiciled; proceeding to change custody may be brought in the parish where the person awarded custody is domiciled.

Subject Matter Jurisdiction: to annul or divorce, one or both of the parties must be domiciled in LA. If the spouse has established and maintained a residence in LA for 6 months, there is a rebuttable presumption that this residence is the spouse's domicile (this presumption doesn't apply to other things). Domicile establishes jurisdiction for adoption, emancipation, interdiction...etc.

Community property regimes: for those who are domiciled in LA.

10

Marriage

Legal relationship between a man and a woman created by civil contract.

11

Prerequisites for a valid marriage?

1) Absence of legal impediments
2) Marriage ceremony; and
3) Mutual consent of both parties expressed at the ceremony

12

What are legal impediments to marriage?

Absence of legal impediments is required for a valid marriage. Legal impediments include: an existing marriage, persons of the same sex, direct line relatives and collaterals in the fourth degree including adopted relatives.

13

What are the requirements of a valid marriage ceremony?

A marriage must have a ceremony to be considered valid. The requirements are:
1) A celebrant who is qualified or the parties reasonably believe is qualified;
2) attendance, in person, by both parties.

The marriage will still be valid, even if it doesn't have: marriage witnesses, two competent witnesses, a signed certificate, and a summary of laws by the celebrant.

14

What are the requirements for consent to a marriage?

The parties must give free express consent, not under duress, without mental impediment and of the correct age unless written authorization in juvenile court or parents approval.

15

What is a covenant marriage?

It's a special type of marriage that is between one male and one female who understand that marriage is "a lifelong relationship." No one uses this anymore.

16

Under what circumstances is a marriage relatively null?

When it's lacking consent. A judicial declaration is required to annul the marriage.

Effect: The marriage is valid and produces civil effects until officially declared null by the court.

Confirmation by the nonconsenting party precludes an action to annul the marriage.

17

Under what circumstances is a marriage absolutely null?

1) In violation of any impediment to marriage;
2) Without a marriage ceremony attended by both parties; or
3) by procuration.

Effects: devoid of all legal effect. No judicial declaration is required. Any interested party may bring the action to annul. BUT look to see if there's a putative marriage.

A party can remarry without a judicial declaration of nullity

18

When are spouses putatively married? Putative marriage doctrine:

Spouses are putatively married when their marriage is absolutely null AND at least one of the spouses was in good faith in contracting the marriage.

Good faith: honest and reasonable belief that there exists no legal impediment to marriage. Good faith is presumed on the part of the party asserting a putative marriage EXCEPT a party to the previous undissolved marriage bears the burden of proving his good faith in contracting the second marriage.

Actual knowledge of an impediment vitiates good faith. Secondhand knowledge imposes a duty to inquire. If no inquiry, then no good faith.

Civil effects: same as marriage (but good faith/bad faith community rule in Code II. Civil effects continue as long as the spouse remains in good faith. If bigamy is the impediment, civil effects continue until official declaration of nullity or innocent spouse retires.

Children: putative marriage produces civil effects for children of the marriage.

19

What are the mutual duties spouses owe to each other?

1) Fidelity: Cannot commit adultery; mutual obligation to submit to reasonable and normal sexual desires of each other;
2) support: must furnish necessities of life
3) assistance: must care for an ill or infirm spouse

Spouses can't sue each other during marriage, so they are unenforceable during marriage.

Parties can't modify the duties.

20

Does marriage change the a spouse's surname?

No. A married person may use the surname of either or both spouses. A widowed, divorced, or remarried woman may use her former spouse's name or may using her maiden name. No special steps are required.

21

What events trigger the termination of marriage?

1) Death of either spouse;
2) a judicial declaration of nullity when the marriage is relatively null (absolutely null marriages are null from inception);
3) the issuance of a court order authorizing the spouse of a person on active duty in the military who is presumed dead to remarry;
4) the entry of a judgment of divorce.

22

What are the types of no-fault and fault divorces?

No-fault divorces
1) Article 102 divorce: parties have lived apart continuously for either 180 days (no minor children) or 365 days (if minor children) after service of petition or written waiver of service.
2) Article 103(1) divorce: living separate and apart continuously for 180 or 365 days or more before petition is filed AND physical separation must be voluntary on the part of at least one party.

Fault divorces:
1) Article 103(2) divorce: immediate adultery divorce--period of separation is not required. Proof by corroborated testimony.
2) 103(3) divorce: immediate felony-conviction divorce--no separation required. Spouse must be convicted of a felony AND must be sentenced to death or to imprisonment at hard labor.

23

What are the defenses to divorce actions?

1) Procedural: in a 102 divorice, parties can argue that the civ. code proc. requirements haven't been met (petition alleging jurisdiction and venue verified by an affidavit, rule to show cause, required evidence hearing on rule...etc.)
2) Reconciliation: extinguish divorce action. Resumption of life together with mutual intent to resume the marriage (holding yourself out as married). Isolated sex acts aren't considered reconciliation. After Adultery: must have forgiveness and knowledge of the offense.
3) Mental condition of at-fault spouse. Mental condition must cause the faulty conduct.

24

What are the common actions incidental to divorce?

1) Injunctions: no waste of community property; no abuse; no harassment
2) children: custody, visitation, and child support
3) money: spousal support; use of property including the matrimonial domicile. The spouse must have custody of the minor children and living in the matrimonial domicile is "in the best interest of the family." Last for the earlier of partition of the community or until 180 days after termination of the marriage.
4) the court can award a spouse with the use of community movables or immovables in line with the best interest of the family.

25

When is a spouse entitled to interim spousal support? How long does it last? When can it be modified?

Interim support is permitted in a divorce when
1) one spouse has a need. The spouse with the need bears the burden of showing a need. Considerations are the spouses income, but not assets or earning capacity.
2) the other spouse has the means to pay, any interim or final child support obligation. Courts look at the payor's income, assets, earning capacity, and obligations.
3) and the standard of living of the parties during the
marriage.

The trial court has a GREAT DEAL OF DISCRETION.

The role of fault is irrelevant to who can receive interim spousal support.

Duration: An award for interim spousal support terminates upon the rendition of a judgment of divorce UNLESS there
is pending claim for final spousal support when the divorce is rendered.

Modification or termination: if the circumstances of either party materially change OR if it becomes unnecessary.

Spouses can't waive their right to interim spousal support.

26

When can a spouse receive final spousal support?

Court may award final period support to a party free from fault prior to the filing of the proceeding to terminate marriage. The award is based on the needs of the claimant (not limited to items for basic survival, but doesn't include luxury items) and the ability of the other to pay.

27

What are the relevant factors for determining an amount and duration of the final spousal support?

1) Income and means of the parties, including its liquidity
2) financial obligations of the parties, including child support obligations;
3) earning capacity of the parties
4) effect of custody of children upon a party's earning capacity;
5) time necessary for the claimant to acquire appropriate education, training, or employment;
6) the health and age of the parties;
7) the duration of the marriage;
8) the tax consequences to either or both parties;
9) the duration of any domestic abuse committed by the other spouse upon the claimant.

The court SHALL award final periodic support or a lump sum it finds that the spouse seeking divorce was not at fault prior to filing and was the victim of domestic abuse committed by the other spouse during the marriage.

28

What does it mean for a party to be "free from fault" in terms of awarding final spousal support?

1) Adultery: in an action for divorce based on adultery a spouse is entitled to final spousal support when in need, but the other spouse can affirmatively prove the claiming spouse was at fault.
2) Conviction: of felony and sentenced to hard labor or death.
3) Habitual intemperance or cruel treatment that renders living together insupportable. Doesn't include nagging, fussing, and criticism.
4) abandonment: leaving the dwelling without lawful cause and refusing to return after request
5) Other grounds: defamation, attempted murder, fugitive, nonsupport, other (failure to live up to marital duties of fidelity, support, and assistance--includes no sex).

29

What is the limitation on the award of final spousal support?

1/3 of the obigor's net income, unless the claiming spouse is the victim of domestic abuse, then it can be more.

30

How does one enforce a spousal support award?

Income-assignment orders to enforce spousal support and child support awards. The court must award attorneys' fees and costs to the other spouse, absent good cause when it renders judgment for past due spousal or child support payments.

The action to collect arrearages is subject to a 5-year liberative prescription. BUT any payment interrupts prescription.

31

How does a spouse modify, waive, or terminate spousal support orders?

Modification: Party seeking modification must prove a material change in circumstance OR it becomes unnecessary if done through a court. Remarriage isn't a material change of circumstance.

Procedure: Can be done by a judgment of a court of competent jurisdiction; authentic act; private signature duly acknowledged.

You can also waive final spousal support at any time before or during marriage.

32

What is the prescriptive period for seeking spousal support?

The RIGHT to seek spousal support is subject to a peremption of 3 years that begins to run from the latest of divorce, judgment terminating previous award, or the last day a payment was made when the obligation was voluntary.

33

When may a spouse make a claim for contribution?

Spouse or former spouse who has made financial contributions to the other spouse's training or education during marriage that increased other spouse's earning power may make a claim for contribution.

The claimant must not have benefitted from the other spouse's increased earning power during marriage.

34

Generally, how does the court decide how to award custody?

In accordance with the best interest of the child. More specifically there are factors that the court looks at.

35

What are the factors the court looks at when determining custody.

1. Moral fitness of parties
2. Love, affection, emotional ties btw parties/child
3. Distance between respective residences
4. Mental/physical health of parties
5. Length of time child has lived in stable environment (want to maintain)
6. Capacity to provide kid w/food, clothing, shelter
7. Willingness of parties to facilitate continuing relationship btw. child and other party (friendly parent)
8. Home, school, community history of child
9. Permanence of existing custodial home
10. Reasonable preference of child (if old enough)
11. Capacity to provide kid w/love, affection, spiritual guidance & continue education/rearing of child
12. Responsibility for care/rearing of child previously exercised by each party

The weight to be afforded each factor is in the discretion of the court.

36

Under what circumstances can a custody order be modified?

If a considered decree (parties do not agree) the proponent of the change must show (i) that there has been a CHANGE IN CIRCUMSTANCE that is so deleterious to the child to justify modification of the custody decree; OR (ii) CLEAR AND CONVINCING EVIDENCE that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.

Consent judgment (parties agree): material change in circumstances AND BIOC

37

In the absence of an agreement, how should custody be awarded?

Strong preference for joint custody, but one parent can show by clear and convincing evidence that sole custody should be awarded.

38

How does a court allocate physical custody?

Implementation of physical custody should be allocated such that the child is assured frequent and continuing contact with both parents.

39

When is a parent not entitled visitation rights.

When, after a hearing, a court finds that the visitation would not be in the BIOC.

40

When does a grandparent get visitation rights?

Grandparent not granted custody gets visitation rights if, after a contradictory hearing, it's in the BIOC.

41

Who can propose the relocation of a child?

Can be proposed by (1) person w/ sole custody, (2) domiciliary parent in JC, (3) person w/ equal physical custody, (4) natural tutor if child out of wedlock

42

When does the relocation statute apply?

When the child will be relocated out of the state or if the relocation takes place in the state, when the child will be relocated 75 miles from the principal residence of the child under a custody order.

Only applies to a change in residence (domicile). E.g., not during hurricane evacuation when planning to come back.

43

Who must the person requesting to relocate a child give notice to?

Everyone with custody or visitation. Notice must be made 60 days before the proposed move.

44

How does a court decide whether to permit the relocation?

Contradictory hearing to consider whether the relocation is in good faith and in the BIOC.

45

What is the military parent and child custody protection act?

Protects military members on deployment: deployment alone will not constitute a material change in circumstances to permanently modify custody.

46

In what judicial actions does a court award child support?

In a divorce proceeding or thereafter in a proceeding for child support.

47

On what basis does a court award child support?

1) The needs of the child; and
2) the ability of the parents to provide support.

48

When may a child support award be modified?

If the CIRCUMSTANCES of the child or of either parent MATERIALLY CHANGE and if ti becomes UNNECESSARY.

49

What is the default duration of child support?

Until the child reaches majority (18) or the child is fully emancipated.

50

When must a parent pay child support past the age of majority?

1) Child's high school graduation or age 19, whichever comes first.

2) Developmentally disabled child until he turns 22 or as long as he is a full-time student in a secondary school.

3) The child is in necessitous circumstances and is over 18.

4) The child is incapacitated, mentally or physically.

51

General method of for determining the amount of the child support obligation?

LA uses the income shares model.

1) Court determines each party's gross income.
2) Court combines the parties' adjusted gross incomes and computes each party's proportionate share of the combined amount as a percentage.
3) The court looks to the child support schedule for the parties' basic support obligation.
4) The court adds the cost of health insurance and net child care costs to the basic obsupport obligation to compute the support obligation.
5) The court then computes each party's share of the total child support obligation.

52

In what proceeding does one enforce a child support award?

Summary contempt proceeding to recover past-due amounts.

53

When does the right to enforce a child support payment prescribe?

10 years. Each payment is an interruption of the prescriptive period.

54

How does a mother establish maternity?

Mother: woman gives birth presumed, show by preponderance of evidence that child born to woman.

55

How does a father establish paternity?

Presumption of paternity during or within 300 days from the date of the termination of the marriage.

Presumption of paternity by subsequent marriage and acknowledgement by AA or sign the birth certificate.

Formal acknowledgement: authentic act or signing a birth certificate. Child can have two fathers this way. Acknowledged father doesn't inherit from acknowledged child.

Avowal action: preponderance of the evidence of his paternity.

56

How can a husband or his heirs overcome the presumption of paternity when he's not the father of the hild?

Disavowal action: when the man and the mother were married.

Husband may disavow paternity through clear and convincing evidence he isn't the father. This includes DNA evidence, impossibility, witnesses.

57

How does a mother overcome the presumption of paternity?

Contestation action: can establish both that her former husband is not the father of teh child, and that the present husband is the father (only if the present husband has acknowledged the child by A or has signed the birth certificate.

Proof by clear and convincing evidence.

58

What is the time limitation for a disavowal action?

One year after actual or constructive knowledge of birth. EXCEPT if the husband and mother lived separate and apart for 300 days preceding the birth of the child, suit may be filed one year from the date the husband is notified in writing that a party in interest has asserted that he is the father.

Heirs have the same prescription limits. If prescription hasn't commenced, they may file suit within one year from the day he is notified in writing that a party in interest has asserted that the husband is the father of the child.

59

What is the time limit for a contestation ation?

180 days from her marriage to the present husband AND 2 years from the birth of the child. The time limit is peremptive.

60

How can a child, or mother on behalf of a child establish paternity?

A paternity action.

Must prove paternity by a preponderance of the evidence if father living. If father dead, clear and convincing evidence.

61

What are the time limits on a paternity action?

For succession purposes only: one year from the death of the alleged father.

For all other purposes: not limited by a peremptive period of one year

62

How does a child born after the death of a sperm or egg donor establish paternity?

If: child was born to the surviving spouse within 3 years of the death of the father AND the donor spouse authorized in writing that the spouse could use the gametes.

63

What is the time limit for a father to bring an avowal action?

If child is presumed to be the child of another man: 1 year from birth of the child, unless the mother deceived the father in bad faith. If mother in bad faith, 1 year from the day he knew or should have known of his paternity or 10 years from the birth of the child, whichever comes first. Must be within 1 year from child's death.

If child is not the presumed child of another man, no later than 1 year from the child's death.

64

What is the raltionship of an adopted person to his adopted parents

An adopted person is the legitimate child of his adoptive parents for all purposes, including inheritance rights.

65

What rights do mother and father chare with respect to their child?

To have custody;
To discipline;
To appoint tutors and to delegate authority;
To administer the child's estate;
To enjoy usufruct over child's property;

66

What property of the child is excepted from the parent's usufruct?

1) Property acquired by the child's own labor
2) property inherited by the child with the express condition that the property not be included in the parental usufruct;
3) Property donated inter vivos to the minor unless the right to a parental usufruct is expressly provided for in the written act of donation.

67

What are the obligations of the parent to the child?

To support, maintain and educate;
To protect;
To assume vicarious liability for the torts of their children;
Enforcing parental obligations

68

What are the reciprocal alimentary obligations of parents and children?

Reciprocal duty to maintain one another's basic necessities of food, clothing, shelter, and healthcare upon proof by the needy person of an inability to obtain these from other sources.

69

When is appointment of a tutor necessary?

When one or both parents are deceased and when parents are divorced.

70

What are the types of tutorship?

Tutorship by nature: parents are the natural tutors of their legitimate children. Upon death of one parent, the other parent automatically becomes the child's tutor. Mother is the tutrix of an illegitimate child.

Tutorship by will: right of appointing a tutor belongs to the spouse dying last.

Tutorship by law: when the parent dying last hasn't named a new tutor, the totr selects form the child's direct ascendants, the child's qualified collaterals by blood, and the child's stepparent, keeping in mind the BIOC.

Dative tutorship: when the child doesn't have a family, the court shall appoint a tutor.

71

What are the duties of a tutor?

Care for the person of the minor, upbringing, administer the minor's estate.

TUtor and undertutor have a fiduciary duty to the tutee.

72

When does tutorship terminate?

Emancipation, except for mentally incapacitated children can have a continuing tutorship.

73

When is an undertutor required?

In every tutorship.

74

What does an undertutor do?

Performs any acts that the tutor fails to perform.

75

What are the types of interdiction?

Full interdiction;
Limited interdiction;
Temporary and preliminary interdiction (substantial likelihood that grounds for interdiction exist + substantial possibility of harm to interdict)

76

When may a court order the full interdiction of a natural person?

1) When the person who, due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person AND property; and
2) whose interest can't be protected by less restrictive means

77

When should the court order a limted interdiction?

The defendant iis incapable of caring for his person OR managing his estate.

Limited curator only has the powers that are necessary to meet those needs.

78

What are the curator's duties?

Reasonable care, diligence, and prudence, and shall act in the best interest of the interdict.

79

When may a court modify or terminate interdiction?

Good cause. Interdiction terminates upon the death of the interdict or by judgment of the court.

80

When should the court remove the interdict?

When it's in the best interest of the interdict. There are factors that include misapply the interdicts property and abuse of the interdict or failing to provide the interdict with as much independence as the means of the interdict and the conditions of his estate permit.

81

Who is an absent person?

A person who has no representative in the state + cannot be located with reasonable diligence.

82

What happens if an absent person owns property in LA?

Petitioner must show the necessity of appointment of a curator to protect the By a showing of necessity, a court may appoint a curator to manage or dispose of the property.

83

When is a person presumed to be dead?

If an absentee is absent for 5 yeras, he is presumed to be dead. An interested person may petition the court for a declaration and for a determination of the date of death.

84

What happens if a person declared dead reappears?

He can recover his property that still exists and his inheritance in the condition found from his successors or their transferees by gratuitous title.

He CANNOT recover fruits from his successors, who are considered to be good faith possessors.