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Louisiana Bar Exam Redux > Code I > Flashcards

Code I Flashcards

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1
Q

Consent Decree Modification

A

Requires:

  1. Material change in circumstances
  2. Proposed Modification is BIOTCH
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2
Q

Petitory Action

A

Pl. seeks judgment declaring that he IS the owner of the property. Show:

  1. Pl. is NOT in possession AND
  2. D. is in possession and claims ownership

Pl. must prove title is good against the world

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3
Q

Possessory Action

A
  1. Π must prove that he was in possession at the time of the disturbance;
  2. that he had acquired the right to possess (possession for 1 year);
  3. a disturbance in law or in fact; and
  4. the possessory action was brought within 1 year of the
    disturbance.
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4
Q

Acquisitive prescription of Immovables

A

10 year possession + good faith

Good Faith = just title: a juridical act sufficient to transfer ownership that is properly recorded.

30 year ➠ must be in possession for 30 years of a thing susceptible of acquisitive prescription.

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5
Q

Acquisitive prescription of movables

A

3 year ➠ possession for 3 years + good faith (pursuant to an act translative of ownership)

10 year ➠ (bad faith) possession for 10 years .

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6
Q

Marriage Requirements:

A
  1. Absence of legal impediment (same-sex, existing marriage, incest/relatives to 4th degree),
  2. valid ceremony performed by qualified celebrant where:
    a. both parties are present,
    b. witnessed by 2 competent Witnesses ages 18 or older,
  3. verbal consent of both parties at the ceremony

Relative nullity if no consent, absolute nullity for everything else.

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7
Q

Art. 102 Divorce

A

Art. 102 (separation after service)

  1. file petition (allege jurisdiction and venue, be verified by affidavit),
  2. request service w/in 90 days of filing,
  3. file RTSC after requisite time period and Affidavit - service of petition and passage of requisite time period
  4. have hearing on divorce petition + affidavit of mover - that the parties have lived apart since petition and mover wants divorce.

Abandoned if no RTSC w/in 2 years of service.

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8
Q

Art. 103(1) Divorce

A

Art. 103(1) (separation prior to filing)

  1. Live separate and apart for 180/365 days before filing petition,
  2. then have petition served,
  3. file RTSC,
  4. have hearing.
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9
Q

Fault based Divorces

A

Art 103(2) (immediate adultery)

  1. must prove adultery at trial;
  2. evidence presented must “lead fairly and necessarily to the conclusion that adultery has been committed;”

NOTE -admission of adulterous spouse is not enough.

Art 103(3) (immediate felony conviction)

  1. conviction of a felony and
  2. sentenced to hard labor or death
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10
Q

Spousal Support types

A

Interim & Final Spousal Support

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11
Q

Interim Spousal Support

A

Regardless of Fault - Cannot be contracted out of

MUST SHOW:

  1. claimant spouse in need
  2. other spouse has the ability to pay

Purpose of Interim Support is to maintain the standard of living enjoyed by the couple during the marriage

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12
Q

Final Spousal Support + Factors used by court

A
  1. claimant spouse in need
  2. other spouse has the ability to pay, and
  3. claimant is free from fault

Court will consider the following factors (TAFCRIED)

  1. taxes,
  2. age and health
  3. financial obligations
  4. child custody
  5. rehabilitation
  6. income and means
  7. earning capacity
  8. duration of the marriage
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13
Q

Termination of Interim Support

A

Generally, it will terminate at judgment of divorce, but may continue past it if the parties have not had HG for final SS yet.

If no HG -

  1. when the final support judgment is rendered, or
  2. 180 days, whichever happens first.
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14
Q

Termination of Final Spousal Support

A

Terminates upon:

  1. death of either party;
  2. remarriage of obligee spouse;
  3. judicial determination that obligee spouse has cohabitated w/ another person of either sex in the manner of married persons.
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15
Q

Contribution to earning capacity:

A

spouse or former spouse made contributions to other spouse’s education or training during the marriage that

  1. increased the other spouse’s earning power, and
  2. the spouse didn’t benefit from the increase during the marriage.

3-year PP.

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16
Q

Best Interests of Child (BIOTCH) Factors

A
  1. emotional ties,
  2. ability to nurture,
  3. ability to provide,
  4. prior relationship,
  5. stability,
  6. moral fitness as it affects the child,
  7. Health - mental and physical,
  8. history (home, community and social - child),
  9. reasonable preference of the child,
  10. cooperation between the parties,
  11. location of the parties, and
  12. past caregiver
17
Q

How to change custody

A

distinguish between consent decrees and considered decrees.

consent decrees ➠ no evidence of parental fitness was considered by the trial court

considered decree ➠ trial court considered evidence of parental fitness

18
Q

Consent Decree change of custody requires

A
  1. a material change in circumstances and

2. the proposed modification is in the best interest of the child.

19
Q

Considered Decree change of custody requires

A

heightened showing under Bergeron; show either that:

  1. continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the decree, OR
  2. that the harm to be caused by a change in environment is substantially outweighed by its advantages to the child.
20
Q

Mental Examination in a child custody setting

A

a party can petition the court to compel the other parent to undergo a mental examination by

  1. filing a motion for other party to undergo a mental examination, and
  2. showing good cause (testimony of people who say her mental health is suffering).
21
Q

Ex Parte Temporary Custody Order:

A

Requires:

  1. irreparable, immediate injury/harm to the child will result
  2. before the other parent can be heard;
  3. must allege specific facts in a verified petition or supporting affidavit.

Expires in 30 days but may be modified for one 15-day period upon the showing of good cause.

22
Q

Visitation - child custody

A

parent not granted custody will get visitation unless court finds that it’s not in the best interests of the child.

All others must show extraordinary circumstances.

23
Q

Child Support:

A

court considers

  1. child’s needs, and
  2. parent’s ability to support.
24
Q

Child Support Amount

A

Income Shares Model;

  1. take each parents gross income
  2. subtract preexisting support payments to another child or spouse who is not a party to the proceedings;
  3. adjusted gross income (= 1 and 2 for both parents);
  4. add adjusted gross income of both parents together and get the BASIC CHILD SUPPORT OBLIGATION from the statutory tables
  5. add health insurance, net childcare costs, extraordinary medical expenses and other extraordinary expenses (like private school tuition) to the basic obligation;

each party’s obligation is based on the percentage of the adjusted gross monthly income.

25
Q

UCCJEA - Initial Determination

A
  1. La. must be the child’s home state (lived w/ parent for 6 months before the proceeding commenced), or
  2. was the child’s home state w/in the preceding 6 months, or
  3. the preceding 12 months and the child left because of an emergency or natural disaster.
26
Q

UCCJEA - No Home State, or State Declined

A

La. has jurisdiction if

  1. the child and at least one parent have a significant connection with La., and
  2. there is substantial evidence available in La.
27
Q

UCCJEA - Continuing Jurisdiction

A

the court that makes an initial determination of custody has exclusive continuing jurisdiction until

  1. neither the child nor the parents continue to reside in this state, or
  2. the child no longer has a significant connection with this state and substantial evidence is no longer available
28
Q

Filiation - Mother

A

proof by preponderance of evidence that the child was born of a particular woman;

can be testimony of
witnesses to the birth, documentary evidence and scientific evidence.

29
Q

Filiation - Paternity of child born during Marriage

A

If child is:

  1. born during the marriage, or
  2. within 300 days of the dissolution of the marriage,

then the husband (or former) is presumed to be the father of the child.

HOWEVER,

  1. if mother is remarried at the time of the child’s birth, and
  2. first husband disavows,

then the second husband is presumed to be the father.

30
Q

paternity by subsequent marriage

A
  1. man marries the mother of the child
  2. child is not filiated to another man, and
  3. he acknowledges the child by
    a. AA, or
    b. by signing the birth certificate, and
  4. mother concurs in the form of a juridical act.
31
Q

Challenging Paternity by Husband/Ex-Husband

A

Disavowal by husband (or successors) -
clear and convincing evidence that he is not the father

Rx for first husband ➠

  1. One year after actual or constructive knowledge of the birth of the child, or
  2. if lived separate and apart for 300 days preceding the birth - notified of the birth in writing before prescription begins to accrue.

❧ Rx for first husband’s successors ➠
1. if Rx has begun to accrue at the time of father’s death, then successor has 1 year from the date of the death

  1. if Rx has not begun to accrue at the time of the father’s death, then 1 year from the date the successor is notified in writing that a party has asserted paternity
32
Q

Challenging Paternity by Subsequent Husband

A

Disavowal Action:

peremptive period for second husband and his successors: 1 year from the date of finality of the
judgment of disavowal of the first husband.

peremptive period for presumption arising from subsequent marriage and acknowledgment ➠ 180
days from the later of the marriage or acknowledgment.

33
Q

action to challenge and establish paternity

A

contestation and establishment action
(to show that former husband is not father, and current husband is father)

Rx - within 180 days from marriage to current husband and 2 years from child’s birth

Prove by C&C evidence.

34
Q

Avowal Action

A

Rx:

  1. within one year from child’s birth, if filiated to another, or
  2. one year from death of child.

If bad faith deception by mother:

  1. One year from date of discovery, and
  2. Ten years from child’s birth.

Prove by POE.

35
Q

Adoption (legal consideration)

A

an adopted child is the legitimate child of his adoptive parent for all purposes;

36
Q

Types of Tutorship

A
  1. natural (parents are natural tutors of children),
  2. by will (spouse dying last or spouse with sole custody may appoint a tutor in a will),
  3. by effect of law (court will select a tutor from the following, using the BIOC standard: qualified direct ascendants, qualified collaterals by blood within the 3rd degree, stepparents),
  4. dative (if none of the above are available, court will appoint someone).

Louisiana Bar Exam Redux (13 decks)

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