1. Code I: Persons Flashcards
Natural Person
= general legal capacity to have rights and duties
Ends at DEATH
Begins at CONCEPTION after BORN ALIVE
can have wrongful death of fetus
Juridical Person
entity to which law attributes a personality
fertilized ovum until implanted
Valid Marriage
legal relationship between two people created by civil contract
Elements of Valid Marriage
(1) absence of legal impediments
(2) a marriage ceremony and
(3) mutual consent of both parties
Legal Impediments to Marriage
(1) an existing marriage
(2) too closely related by blood (4th degree)
(3) minors under 16 (16-17 ok if no 3+ gap)
Absolutely Null Marriage
- legel impediments
- invalid marriage ceremony
Relatively Null Marriage
- mutual consent
valid and produces civil effects until officially declared null by the court
must be declared in a judicial proceeding by the party whose consent was not free
Marriage Ceremony
- qualified celebrant
- attendance by both parties
- formalities (won’t make invalid) (license/witnesses/signed certificate/summary of laws)
Mutual Consent for Marriage ELEMENTS
(1) verbal express consent that is free from duress
(2) no mental impediment
Covenant Marriage
marriage with umph
a little extra to get in and a lot extra to get out
Putative Marriage Requirements
applies when a marriage is: (1) absolutely null; AND
(2) at least one of the spouses was in good faith in contracting the marriage
Good Faith for Putative Marriage
honest and reasonable belief that there exists no legal impediment to the marriage
Effect of Putative Marriage
civil effects SAME as normal marriage
Marital Duties
- fidelity
- $upport
- assistance (care)
unenforceable but amount to FAULT sufficient to bar final spousal support
Termination of Marriage
- death
- judicial declaration of nullity (if RELATIVELY null)
- authorization to remarry for military spouses
- divorce
Divorce Types
- No Fault
- 102
- 103 (1)
- Fault
- Adultery
- Felony
- Abuse
102 No Fault Divorce
file FIRST then separate and apart CONTINUOUSLY
retroactive to date of filing
Under a 102 divorce, a spouse can file a petition for divorce, allege jurisdiction and venue, and request a judgment of divorce after the parties have lived separate and apart from service of the petition or written waiver of service. After the requisite period, either spouse can file a rule to show cause to set the matter for a hearing. At the hearing, the other spouse can raise any defenses to divorce – if none, the divorce will be granted. 102 divorces shield the spouses from further liability because it terminates the community property regime immediately.
103(1) No Fault Divorce
separate and apart continuously, then file
physical separation must be voluntary – at least one party must intend to end the marital association through express or implied intent
date of filing is AFTER separation
simpler alternative to 102
Separate and Apart CONTINUOUSLY Time Requirement
- 180 days if NO KIDS OF THE MARRIAGE
- 365 days if KIDS OF THE MARRIAGE
Adultery: Fault Divorce
- immediate when adultery is proved at trial by corroborated testimony
- circumstantial evidence may be used but must lead to the necessary conclusion that adultery has been committed
Drawbacks to Fault Divorce
- time-consuming
- emotionally taxing
- difficult for all parties
Felony: Fault Divorce
immediate when the spouse is convicted of a felony and must be sentenced to death or imprisonment at hard labor
Abuse: Fault Divorce
- Two Modes of Divorce – Immediate Divorce Granted upon Showing Either:
- Proof of Abuse (103(4)) –> proof that spouse has physically or sexually abused the other spouse or child of either spouses – (regardless of whether there was a prosecution for the abuse)
- Protective Order or Injunction (103(5)) –> (granted w/o having to prove up abuse)
a. protective order is issued during marriage seeking protection of spouse or child of either spouse from abuse; &
b. which must be the result of a contradictory hearing or consent decree
- If the spouse proves abuse = ENTITLED to final spousal support + able to recover costs and fees
Divorce Defenses
- Procedural (for 102)
- Reconciliation
- Mental Illness CAUSED the Faulty Conduct
Effects of Fault Divorce
if a spouse commits a martial fault, he is barred from receiving support.
The claimant must prove freedom from fault that led to the break-up of the marriage, except for domestic abuse.
Spousal Support
INTERIM or FINAL
For party in NEED when other spouse can PAY
When Final Spousal Support ENDS
- remarriage
- death of either party
- judicial determination that obligee has co-habitated
Interim Spousal Support
CANNOT WAIVE
= to maintain financial status quo until judgement of divorce
fault is IRRELEVANT
When Award of Interim Spousal Support is Permitted
(1) one spouse has a need
(2) the other spouse has the ability to pay
(3) considering any interim or final child support obligation AND
(4) based on the standard of living the parties enjoyed DURING the marriage
In considering the award of interim spousal support, the court will assess the CLAIMANT SPOUSE’S _______ and will generally not consider his/her _______ or _______ ________.
In considering the award of interim spousal support, the court will assess the claimant-spouse’s INCOME and will generally not consider his/her ASSETS or EARNING CAPACITY.
Termination of Interim Spousal Support
180 days from judgment of divorce
Elements of when Final Spousal Support is Awarded
CAN WAIVE/ CANNOT REQUIRE
Based on:
(1) the needs of the claimant spouse
(2) the ability of the other party to pay; and
(3) only when the claimant spouse is FREE FROM FAULT prior the filing of a proceeding to terminate the marriage
In considering the award of final spousal support, the court will assess the inability of a CLAIMANT to meet her __________ ________, including the _________ ___ _______ during the marriage.
The court will assess the _____ _______ _______ of the PAYOR spouse.
In considering the award of final spousal support, the court will assess the inability of a CLAIMANT to meet her NECESSARY EXPENSES, including the STANDARD OF LIVING during the marriage.
The court will assess the ENTIRE FINANCIAL PICTURE of the PAYOR spouse.
Fault Defenses
- Reconciliation
- Provocation
- Mental Illness/ Physical Infirmity
Factors for AMOUNT and DURATION of Final Spousal Support
TAF–CRIEDD:
(1) Tax consequences to either or both parties
(2) Age and health of the parties
(3) Financial obligations of the parties, including child support
(4) Child custody arrangement and its effect on a party’s earning capacity
(5) Rehabilitation – the time necessary for the claimant to acquire appropriate education, training, or employment
(6) Income and means to the parties
(7) Earning capacity of the parties
(8) Duration of the marriage
(9) Domestic abuse
Limit on Final Spousal Support
cannot exceed 1/3 of obligor’s net income
UNLESS DOMESTIC VIOLENCE = no cap + as lump sum
Contribution to Education and Training of Spouse
A spouse or former spouse has a claim against the other spouse for:
(1) financial contributions to the other spouse’s training or education during the marriage
(2) that increased the other spouse’s earning power
(3) to the extent that the claimant did not benefit during the marriage
Factors for Contribution to Education and Training Award
(1) the contributing spouse’s EXPECTATION of shared benefit
(2) the degree of DETRIMENT suffered by the contributing spouse in making contributions
(3) the magnitude of the BENEFIT RECEIVED by the recipient spouse
Child Custody
The court must award custody of a child in accordance with the best interest of the child.
The court shall weigh each factor and is afforded discretion in deciding custody of the child.
Best Interest of the Child Factors
PAPA-HELPS-CHAMP
(1) Potential for Abuse
(2) Abusive History of a Party (substance abuse, violence, criminal activity)
(3) Prior Relationships (length of time the child has lived in a stable and adequate environment; desirability of continuing that environment)
(4) Ability to Nurture (capacity and disposition of a party to give love and guidance, and to continue child’s education and rearing)
(5) Health (parties’ mental and physical health)
(6) Emotional ties
(7) Location
(8) Preference of the child (reasonable preference of the child if the court deems the child to be of a sufficient age [usually 12] to express a preference)
(9) Stability
(10) Cooperation with Other Party (willingness and ability of each party to foster the child’s relationship with the other party)
(11) History (home, school, and community history)
(12) Ability to Provide
(13) Moral Fitness
(14) Past Caregiver
BIOC: PAPA
(1) Potential for Abuse
(2) Abusive History of a Party (substance abuse, violence, criminal activity)
(3) Prior Relationships (length of time the child has lived in a stable and adequate environment; desirability of continuing that environment)
(4) Ability to Nurture (capacity and disposition of a party to give love and guidance, and to continue child’s education and rearing)
BIOC: HELPS
(5) Health (parties’ mental and physical health)
(6) Emotional ties
(7) Location
(8) Preference of the child (reasonable preference of the child if the court deems the child to be of a sufficient age [usually 12] to express a preference)
(9) Stability
BIOC: CHAMP
(10) Cooperation with Other Party (willingness and ability of each party to foster the child’s relationship with the other party)
(11) History (home, school, and community history)
(12) Ability to Provide
(13) Moral Fitness
(14) Past Caregiver
Standards for Modifying Custody
- considered decree
- consent custody arrangement
Relocation of a Child (timing and what qualifies)
= change in the principal residence of a child for a period of 60 days or more and is not a temporary absence
- outside of the state or 75 miles from the principal residence of the child
Relocation When Equal Custody
parents with Equal Physical Custody do NOT need to object
the party seeking to relocate must obtain court authorization to relocate, after a contradictory hearing
OR must obtain written consent of the other party
Considered Decree
awarded after a hearing when the court considers evidence of parental fitness to exercise care, custody, and control of the child
Consent Custody Arrangement
awarded based on the parties’ agreement
NO evidence of parental fitness considered
Joint Custody
Where there is NO AGREEMENT between the parents OR the agreement is not in the best interest of the child, custody is awarded to the parents jointly.
Louisiana law strongly prefers joint custody but can be inappropriate if the parties are engaged in continuous acrimony.
IMPLEMENTATION ORDER REQUIRED
Sole Custody
If custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court will award sole custody to that parent.
When Non-Parent Custodian is awarded custody
If joint or sole custody to either parent would result in substantial harm to the child
custody is then awarded to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any person able to provide and adequate and stable environment.
Implementation Order for Joint Custody Includes…
- must include allocation of PHYSICAL CUSTODY for “frequent and continuing contact with both parents”
- must allocate legal authority and responsibility of parents
- designate DOMICILIARY PARENT
Visitation Factors
- ★ parent’s fundamental CONSTITUTIONAL right to make decisions re: their child
- prior relationship
- child in need of guidance or not
- preference of child
- mental/ physical health of child and relative
Domestic Violence Custody/ Visitation
history of family violence = apply Post Separation Family Violence Act
presumes parent should not be awarded custody and permits only supervised visitation
proof of sexual abuse = PROHIBITION of custody/ visitation
Ex Parte Interim Custody Standard
immediate and irrepable harm
- only lasts 30 days (can be extended no more than 15 days for good cause) + other parent gets visitation unless harm will result
Hearing for Ex Parte Interim Custody
should be set for hearing within 30 days of ex parte order of temporary custody
Custody Hearing
- closed to public
- BOP = clear and convincing evidence