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Louisiana Bar > Code 1 > Flashcards

Code 1 Flashcards

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1
Q

What are the best interest of child factors?

A

Potential for abuse
Abusive history
Prior relationships
Ability to provide
Health of the parties
Emotional ties
Location
Preference of child, if reasonable
Stability
Cooperation between parents
History of school/community
Ability to nurture
Moral fitness
Prior caregiving

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2
Q

What are the considerations for spousal support?

A

Tax consequences
Age and health
Financial obligations
Child custody arrangement
Rehabilitation
Income and means
Earning capacity
Duration of the marriage
Domestic abuse

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3
Q

What is the prescriptive period for seeking final spousal support?

A

3 years, later of
-divorce
-judgment terminating previous award
-last payment

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4
Q

What are the requirements of final spousal support?

A

-needs of the party
-ability of other party to pay
-no fault occurring before the petition of the divorce that caused the breakdown of the marriage
-standard of living considered (more than just survival)

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5
Q

What are the requirements of interim spousal support?

A

-Needs of the parties (primarily claimant’s income)
-Ability of other party to pay
-any interim or final child support
-standard of living during marriage

NOT fault
sometimes earning capacity

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6
Q

How long does interim spousal support last?

A

Ends 180 days from divorce judgment, extended for good cause

OR

remarriage, death of either party, judicial determination of cohabitation like married persons

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7
Q

How much discretion is given for interim spousal support?

A

Lots of discretion about the money and duration

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8
Q

When is interim spousal support modified?

A

Material change

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9
Q

When does final spousal support terminate?

A

Remarriage of obligee, death of either party, judicial determination like married persons

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10
Q

What is the child custody hierarchy?

A
  1. Agreement of. the parents in BIOC
  2. Joint custody with frequent and continuous physical contact
  3. Parent sole custody
  4. Non-parent custodian
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11
Q

In what venue can you file a custody suit to obtain custody?

A

Where party is domiciled
Parish of last matrimonial domicile

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12
Q

Where can you file a custody suit to modify custody?

A

Parish of domiciliary parent
Where decree was entered

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13
Q

When is a prenuptial matrimonial agreement enforceable?

A

Unlike a postnuptial agreement, it is enforceable without requirement of court approval and there is no requirement of execution of a specified period in advance of the marriage ceremony.

A contract signed at any time in advance of the marriage ceremony will be classified as a prenuptial matrimonial agreement.

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14
Q

What is duress with regards to a matrimonial agreement?

A

The pressure one feels to sign an agreement due to a planned marriage ceremony has never given rise to duress.

Rather, a court would need to find that a party’s will was absolutely overcome such that she was forced to sign against her will.

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15
Q

What should you say if they are using community property regime?

A

The parties did not attempt to develop a separate property regime via agreement. There was also no attempt to modify Louisiana’s default community property regime in any way.

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16
Q

What is the presumption of community property?

A

Property possessed during the marriage is presumed community property.

The person asserting separate property must prove otherwise by a preponderance of the evidence

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17
Q

What is the controlling test for a joint donation?

A

The intent of the donor.

A gift given to the couple after a wedding ceremony is likely intended as a joint gift.

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18
Q

What happens when parties mix community and separate funds to acquire a new asset?

A

It depends on the consequentiality test.

If the community funds used are consequential in comparison with the separate funds used, the entire asset will be classified as community property.

The Louisiana jurisprudence classifies contributions of less than 30% to be consequential.

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19
Q

When is property classified?

A

At inception of title

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20
Q

What happens to fruits with separate property?

A

Absent a valid reservation of fruits, fruits of spouse’s separate property are community property.

Any interest on an interest-baring checking account will be community property.

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21
Q

What does fault mean for final spousal support?

A

Fault means misconduct that rises to the level of one of the fault based grounds for divorce

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22
Q

How much do you reimburse when a spouse uses community funds to improve separate property?

A

1/2 of the funds expended, not the increase in value

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23
Q

What is the procedure for a 102 divorce?

A

W must file a petition and serve it on H. After the requisite time period of living separate and apart from service or a written waive of service has passed, either spouse can file a rule to show cause to set the matter for a hearing.

At the hearing, the moving party must present the petition for divorce, the return of service or written waiver of service, the rule to show cause and return of service of the rule, and the mover shall present on affidavit attesting that the parties lived separate and apart continuously prior to filing the rule.

If the procedural requirements are met and the parties have not reconciled, the court will grant a divorce.

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24
Q

What is the procedure of a 103(1) divorce?

A

Under a 103(1) divorce, W or H must separate voluntarily, with the intent to end marital association.

Once the divorce is filed and served, general pleading delays apply.

H must answer, but in the absence of an answer, W can seek a default judgment of divorce.

If the parties did not reconcile and assuming all the time delays were met, court can grant 103(1) divorce.

For a fault based divorce, the petitioner must have a hearing in a court of competent jurisdiction to prove adultery.

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25
Q

What is adultery of a spouse?

A

It is not limited to sexual intercourse; other acts of sexual contact have been sufficient to prove adultery and obtain an immediate divorce.

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26
Q

How must adultery be proved?

A

It must be proven by corroborated testimony.

The admission of the offending spouse alone will not be enough.

In the event that there is only indirect or circumstantial evidence, the petitioner must show facts or circumstances that lead fairly and necessarily to the conclusion that adultery has been committed.

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27
Q

What are the rules about use for co-owners?

A

One co-owner may not prohibit another from using the co-owned thing in accordance with its destination.

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28
Q

What are the rules about substantial improvement to a co-owned thing over a co-owner’s objection?

A

When a co-owner makes a substantial improvement over his fellow co-owners’ express objections, he can be compelled to remove the thing at his expense, with damages paid to the other co-owners for any injuries they have sustained as a result of the improvement.

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29
Q

What are the shares of a co-owned thing?

A

Unless otherwise specified by contract or law, co-owner’s shares are equal and they contribute to the expenses related to the co-owned thing in proportion to those shares.

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30
Q

When can you seek a declaration of death?

A

Under LA law, after the passage of 5 years, any interested person can petition the court to receive a declaration of death of the absent person.

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31
Q

Who is an absent person?

A

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

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32
Q

What do you do when a person who has been declared dead reappears?

A

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 transfer of gratuitous title.

If the property is transferred by onerous title, the person who reappears is entitled to recover the net proceeds of the alienated property.

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33
Q

What repairs is a naked owner responsible for?

A

A naked owner is responsible for extraordinary repairs that involve reconstruction of a whole or substantial part of the co-owned thing.

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34
Q

How can you make a reservation of rights for separate property?

A

A declaration in an authentic act or act under private signature duly acknowledged, filed in the appropriate public record, give copy to spouse prior to filing

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35
Q

What is seizable by a creditor with respect to community property and separate property?

A

The separate property of the debt incurring spouse and the entirity of the community property at the hands of either spouse.

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36
Q

What are the managing rights of a car?

A

Registered movables like a car are solely and exclusively managed by the spouse whose name the property is registered or issued.

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37
Q

What is the rule about alienating furnishings of the community home?

A

The sale of furniture or furnishings while located in the family home requires the concurrence of both spouses. The action is relative nullity and the non-consenting spouse can sue to have it set aside.

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38
Q

Who has to agree to sell an immovable?

A

Both spouses

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39
Q

When are courts reluctant to grant an adultery-based divorce?

A

Only the testimony of a private investigator and the mere belief from friends and family that adultery has occurred

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40
Q

Who bears the burden of proving fault (or freedom of fault) in a spousal support claim?

A

If there was a fault-based divorce, other party bears burden.

If the party seeking final support obtains a divorce based on the fault of the other spouse, a court presumes that the claimant is free from fault and the opponent must affirmatively prove the claimant was at fault.

41
Q

What improvements can a usufructuary make.

A

With written consent of a naked owner, a usufructuary is permitted to make improvements.

If the naked owner refuses to consent, the usufructuary seeking to make improvements or alterations may seek court approval to do so.

42
Q

What kind of improvements can co-owners make?

A

Only with the consent of all co-owners can a party make substantial improvements or alterations.

When a co-owner acts alone to make such improvements and they are consistent with the use of the property, the other co-owner is compelled to keep the improvement and pay for it.

43
Q

Can a usuf. get reimbursed for improvements?

A

No, they make improvements at their own expsense

44
Q

What is an extraordinary repair?

A

One that requires reconstruction of the whole or substantial party of the property

45
Q

What are the rules about a naked owner making extraordinary repairs

A

He may make the repairs but must do so within a reasonable time and in the manner least inconvenient and onerous for the usufructuary.

46
Q

How do co-owners split costs?

A

They bear necessary expenses in proportion to their shares.

47
Q

How do co-owners share fruits?

A

Co-owners share in the fruits produced by the co-owned thing in proportion to their ownership.

48
Q

What are the requirements of a marriage?

A
  1. free from legal impediments (incest, bigamy, age)
  2. Attend a valid wedding ceremony
  3. Express their free consent to wed at the ceremony
49
Q

Will lack of consent invalidate a marriage?

A

No, but it could result in a null marriage.

A null marriage is a legal marriage that can be declared null by a party if consent was not free .If the party whose consent was not free later confirms the marriage, they lose the right to annul.

50
Q

What are the requirements of free consent to wed at a marriage?

A
  1. The parties must be physically present
  2. The ceremony must be performed by a third person who is qualified, or reasonably believed by the parties to be qualified.
51
Q

Who is someone reasonably believed to be qualified for a marriage?

A

Members of the class of persons generally recognized as empowerered to perform such ceremonies, whether or not properly registered to do so

52
Q

What are the three ways to get a fault-based divorce?

A

-Adultery
-Commission of a felony and sentenced to death or hard labor
-Abuse during the marriage

53
Q

When a marriage contract includes a valid waiver to spousal support and an invalid waiver of community property regime, can you sever?

A

You would need a sever ability clause.

But likely it is not severable. (Acurio dissent)

54
Q

When can you waive final spousal support?

A

Any time before or during the marriage or after the divorce

55
Q

How can you modify or waive final spousal support?

A

Authentic act or act under private signature duly acknowledged

56
Q

When can you waive interim spousal support?

A

You cannot waive it.

LSC has held that the waiver is contrary to public policy because of the mutual duties of support owed during the marriage.

Because the spouses are still married pending a final judgment of divorce, the mutual duty to support the other spouse persists on an interim basis.

57
Q

Can fault prior reconciliation be a basis of denying final spousal support?

A

No

58
Q

When will sole custody be granted?

A

If one parent can show by clear and convincing evidence that sole custody to one parent is in the best interest of the child?

59
Q

How will the court decide a custody determination?

A

Ultimately, the court makes a custody determination based on the facts presented at the hearing

60
Q

What is a domiciliary parent?

A

The domiciliary parent is the parent with whom the child primarily resides, even though the other parent must be assured frequent and continuing contact with the child

61
Q

What is an implementation order?

A

In a custody order if the parties cannot agree on the details, the court will issue a custody implementation order which will name a domiciliary parent and provide the schedule of physical custody of the children.

The implementation order could also require one parent to seek anger management courses or participate in substance abuse prevention.

62
Q

Best Interest of Child Standards

A

Potential for abuse
Abusive history
Prior relationships
Ability to provide
Health of parent
Emotional ties
Location
Preference child, if reas.
Stability
Cooperation of parents
History of school and community
Ability to nurture
Moral character
Prior caregiving

63
Q

What are the standards for modifying custody?

A

Paramount consideration is best interest of the child standard.

If consent decree based on stipulated judgment
-material change of circumstance
-modification in BIOC

If considered decree (heavier burden)
-so deleterious to the child to justify modification of the custody decree or by
-clear and convincing evidence that harm likely to be caused by the change of environment is substantially outweighed by advantages to the child

64
Q

What is the standard for a considered degree for changing child custody?

A

-so deleterious to child to justify modification
-proof by clear and convincing evidence that the harm is likely to be caused by change of environment substantially outweighed by its advantages to the child

65
Q

What is the standard for a consent decree?

A

Best interest of the child
Material change in circumstance

66
Q

How long does a father have to bring a disavowal?

A

1 year from birth of child or 1 year from actual or constructive knowledge that he may not be the biological child, whichever is later

67
Q

What is the standard for proving they are not the father?

A

Clear and convincing

68
Q

What is the presumption about community property?

A

Any property possessed during the marriage is community property.

Overcome by a preponderance of the evidence

69
Q

How do you classify a home if it was acquired on credit?

A

When a couple acquires a home on credit during the existence of a community property regime, the source of the funds used to make the down-payment or cash portion of the price determines is classification.

That the couple purchased the rest with a loan or may have used funds of a different classification to make a note payments throughout the marriage do not bear on classification.

The consequentiality test does NOT apply to credit acquisitions

70
Q

What happens when you commingle funds?

A

Try to uncomingle.

Bank accounts are treated as money and the commingling does not result in the loss of ownership

71
Q

Inheritances are?

A

Separate property

They will be presumed community because it is possessed but the spouses during the marriage, the spouse arguing separate property can easily rebut the presumption

72
Q

What do you need to make a postnuptial agreement?

A

Court approval

73
Q

Can you later confirm an invalid premarital agreement?

A

Yes with court approval

74
Q

What does a matrimonial agreement that waives community property need?

A

To be in the form of an authentic act or an act under private signature duly acknowledged by the spouses

75
Q

How do you classify building a home on separate property during the marriage?

A

When buildings are made of the separate property of a spouse with community property, the building belongs to the owner of the ground as separate property

76
Q

What are the reimbursement claims a former spouse can assert?

A

Former spouses can recover direct educational expenses and living expenses paid for the student spouse when
-education and training increased earning power of student spouse
-contributing spouse did not benefit from the increased earnings

77
Q

What is the factor test to determine whether an award for educational expenses is appropriate?

A

Claimant’s expectation of shared benefit when contributions were made

Degree of detriment suffered but he claimant in making contributions

Magnitude of benefit received by the other spouse

78
Q

What type of obligations are ones incurred by the spouse alone during the existence of the community property regime

A

Community obligations

This can be rebutted by contrary evidence

79
Q

When will an obligation be separate if during community regime?

A

Not for common interest of the spouse or in the best interest of other spouse

(ex. gambling. although one spouse might imagine a situation in which a spouse gambling is an attempt to put food on the table, it is not the case when H withdraws from children, spends time drinking/gambling”

80
Q

What principle does acurio v. acurio state (in community property)?

A

You can sever a waiver of final spousal support from an invalid premarital agreement.

You still have to get it duly acknowledged, but there is not the requirement of the courts becoming involved.

81
Q

What is a child’s home state?

A
  1. Where lived with parent for 6 months before proceeding
  2. Was child’s home state within the last 6 months and not in the state, but a parent still lives in the state
  3. State that was child’s home state within a year and there is an emergency

Exceptions:
La can still have jurisdiction has no court has jurisdiction or another state declines jurisdiction if
-both child and one parent has significant connect
-substantial evidence

82
Q

What is the test for modification of child support?

A

Material change in circumstance

83
Q

When is court approval for a matrimonial agreement required?

A

Court approval is needed during the marriage for a matrimonial agreement that modifies or terminates a matrimonial agreement during marriage

UNLESS the couple is opting into the legal regime of community property. Then court approval is not necessary

84
Q

What are the good faith rules for an absolutely null marriage?

A

Parties who enter into an absolutely null marriage may still be entitled to the civil effects of the marriage if they entered into the null marriage in good faith.

Good faith is the honest and reasonable belief that there was no impediment to marriage when it was contracted.

Generally, good faith is presumed and the burden of proof rests on the party who challenges its existence.

For a spouse who is a party to a prior undissolved marriage, that spouse will not enjoy the presumption of good faith and will have to affirmatively prove its existence.

The civil effects continue in favor of the other, innocent party regardless of whether they remain in good faith, until the marriage is declared null or the innocent party contracts a valid marriage.

When the cause for nullity is is one party’s undisolved prior marriage, the civil effects continue in favor of the other, inncocent party, regardless of whether they are in good faith, until the marriage is declared null or the innocent party contracts a valid marriage

85
Q

If you donate a non-consumable as a usufruct, what happens?

A

You owe n.o. the value of the thing at the time of donation

86
Q

How long do civil effects last for a puntative spouse who learns of the other’s undissolved marriage?

A

Until the marriage is declared null by a court or until they contract a valid marriage.

87
Q

When must separation of the spouses be voluntary for at least one of the parties in a divorce?

A

A no-fault 103(1) divorce

88
Q

What happens when a court takes judicial notice of a conviction for a divorce?

A

The divorce will be granted quickly.

You only need to wait for the general procedural delays.

89
Q

What is a benefit of a fault divorce?

A

The other spouse is presumed free from fault for purposes of receiving final spousal support.

90
Q

When is property classified?

A

Inception of title

91
Q

What is the double dipping rule?

A

A claiming spouse cannot recoup for community funds used and uncompensated labor done on separate property if it would be double dipping.

92
Q

When is a spouse entitled to compensation for work on a separate?

A

When they were not paid or were under paid

They may get 1/2 the increase in the value

93
Q

Is an obligation a community obligation or a separate obligation?

A

If an obligation “results from an intentional wrong” it will be a separate obligation “to the extent it does not benefit both spouses, the family, or the other spouse”.

94
Q

When is a right of passage gratuitous?

A
  1. Passage was previously exercised (even if not shortest route and even if act of alienation does not mention)
  2. Cannot be a voluntary act to enclose
95
Q

What do you need to tack?

A

Juridical link

96
Q

What happens when the home is destroyed by force majure? Can the usufructuary require the naked owner to rebuild the home?

A

Usufruct cannot compel n.o. to rebuild home. The home was destroyed by force manure, no one I required to replace it.

The usufruct has the right to use the property subject to the usufruct in the condition it exists and to return the property to the naked owner at the end.

There is no guarantee of continuing value.

97
Q

When a home is destroyed by force majure, can the usufruct build a new home on the property? If so, what steps are necessary?

A

A usufruct cannot make improvements or alterations on the property subject to the usufruct without written consent of the owner or permission from the court.

Building a home on the property is an improvement or alteration.

If going to court, usufruct must prove that the improvements are one that a prudent administrator would make.

98
Q

If the usufruct has permission from the court to build a new home because the last was destroyed by force majure, what rights does the usufruct have to recover costs for building the home now or at the end of usufruct?

A

IF the usufruct rebuilds the home, they cannot get reimbursement now or at end of usufruct. Improvements are made at sole expense of usufructuary

Louisiana Bar (9 decks)

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