CODE I Flashcards
Natural Person
Natural personality commences from the moment of live birth and terminates at death.
live birth is characterized by crying or respiration
Termination of personality can be established by licensed doctor’s certification (of irreversible cessation of spontaneous respiratory and circulatory functions or, if kept alive artificially, irreversible and total cessation of brain function), disappearance under circumstances such that death seems certain (plane crash), or judicial declaration of death can be obtained from a court if the person has been absent for five years.
An unborn child is considered to have natural personality for whatever relates to its interests from the moment of conception but must be born alive for natural personality to commence.
Juridical Person
Louisiana law defines a juridical person as an entity to which law attributes personality such as states, municipalities, corporations, by-laws, and partnerships governed by provisions of their charters rather than being indistinguishable from its members.
Ova are juridical persons until implanted in the womb at which point they become natural persons.
Domicile
A person may have multiple residences but only one domicile
To change domicile, a person must move his residence (actual presence required) to another location with the intent to make it his habitual residence.
Could argue that: placement of furniture, matrimonial home, travel to residence to reconcile, husband’s moving ahead to prepare home.
Domicile of Spouses/Minors/Interdicts/Military Personel/Venue/Subject Matter Jur
Barbri P&D outline p. 4-5
Prerequisites for valid marriage
For a marriage to be valid there must be a valid marriage ceremony in which both parties express consent in the absence of legal impediments or vices of consent.
Covenant Marriage
Barbri P&D outline p. 8-9
Relative Nullity of Marriage
A marriage may be declared relatively null if a party does not expressly consent or they suffer from a vice of consent such as duress through actual/threatened violence or criminal prosecution, lacking capacity of discernment (insanity, drunkenness, mental retardation), or minority w/o parental consent.
A relatively null marriage is valid until it is officially declared null by the court and such a marriage produces civil effects until it is officially declared null, nullity must be declared in a judicial proceeding by the party whose consent was not free.
Absolutely Null Marriage
A marriage is absolutely null when contracted without a valid marriage ceremony (performed by a qualified third-party celebrant, both parties in attendance, prior marriage license may be required, signed certificate, 2 competent witnesses) or where there is a legal impediment (such as bigamy, same-sex marriage, and incest)
An absolutely null marriage is devoid of all legal effect from the moment of its inception. A judicial declaration of nullity is not required but civil effects can arise and flow to one or both parties under the putative marriage doctrine.
Putative Marriage Doctrine
The putative marriage doctrine potential applies to an absolutely null marriage when one of the spouses was in good faith in contracting the marriage.
Good faith is defined as the honest and reasonable belief that there exists no legal impediment to the marriage.
The putative marriage doctrine applies to errors of law (null divorce) as well as errors of fact (no divorce).
There is a presumption of good faith for the party making a putative marriage claim, the burden to prove otherwise is on the party challenging the putative marriage.
A party’s first-hand actual knowledge of an impediment vitiates good faith and second-hand knowledge of an impediment imposes a duty to inquire.
Civil Effects of Putative Marriage
The civil effects of a putative marriage are the same as in a normal marriage except with regard to property that would have been community property had the marriage been valid in cases where there was a first spouse (If putative wife is in good faith, then putative wife acquires husband’s half of community property; If both spouses are in good fatih, then husband’s heirs acquire his half of community property and the first wife and putative wife split the remaining half.)
The civil effects of putative marriage continue as long as the putative spouse remains in good faith unless bigamy is the impediment at issue in which case the civil effects continue after nonbigamous spouse learns of impediment until either an official declaration of nullity or nonbigamous spouse remarries.
Provisional and Incidental Proceedings in Action of Nullity
Barbri P&D outline p. 12-13
Incidents of Marriage
Husbands and wives owe each other the mutual duties of negative and positive fidelity, support (necessities of life), assistance (care for ill/infirm). These duties are not enforceable during marriage and cannot be derogated from by contract.
Marriage does not change either spouse’s surname, but married persons may use the surname of either or both spouses (widowed/divorced/remarried woman may use former spouse’s name).
Termination of Marriage
Marriage terminates only upon the death of either spouse, a judicial declaration of nullity if the marriage is relatively null, a court order authorizing the spouse of a presumed dead active duty military personnel to remarry, or a judgment of divorce.
No-Fault Divorce
Article 102 permits the divorce the parties without fault after parties have lived apart continuously for the specified time period following the service of petition for divorce or a written waiver of service.
Article 103(1) permits a simpler alternative to an action under Article 102 where the parties need only live separate and apart continuously for the specified time period before the petition is filed.
If there are no minor children of the marriage being terminated, the parties must live separate and apart continuously for 180 days.
If there are minor children of the marriage being terminated, the parties must live separate and apart continuously for 365 days unless a court finds that the spouse physically or sexually abused the other spouse or the child or there is already an injunction in place when the divorce is filed protecting the spouse or child from abuse (in which case 180 days).
No-Fault Divorce Procedure
Barbri P&D outline p. 15-16, 17
Fault-Based Divorce
Article 103(2) provides for an immediate adultery divorce (no physical separation required), but requires specific proof leading fairly and necessarily to the conclusion that adultery has been committed through corroborated testimony (admission by guilty spouse not sufficient) but sexual intercourse is not necessary for adultery.
Article 103(3) provides for an immediate felony-conviction divorce (no physical separation required) where one spouse is convicted of a felony and sentenced to either death or hard labor.
Defenses to Divorce
Article 102 procedural defect.
Reconciliation extinguishes a divorce action and is characterized by resumption of life together with the mutual intent to resume the marriage. Sex is not sufficient, must have intent. For fault-based divorces, some element of forgiveness or condonation after knowledge of offense may amount to reconciliation.
The mental condition of an at-fault spouse can be a defense if it caused or induced the faulty conduct.
Actions Incidental to Divorce
In a divorce action under article 102 or 103 other matters may be resolved as well
this includes injunctions against encumbering, waisting, selling or disposing of community property, prohibiting a spouse from physically or sexually abusing spouse or children, and against harassment, violence or contact with spouse or children)
this also includes child custody, visitation and support, spousal support, and use of former matrimonial domicile (even if separate if spouse has physical/legal custody of minor children of marriage until earliest of partition of community or 180 days, can use community spousal residence until further order of the court) and use of community movables and immovables (in line with the best interest of the family and including personal property such as food and eating utensils deemed necessary for safety and well being of spouse and children in spouse’s custody.
Domestic Abuse Assistance Act
Barbri P&D Outline p.20
Interim Spousal Support
The purpose of interim spousal support is to maintain the status quo for both parties without unnecessary economic dislocation until a determination of the amount of final support can be made.
The spouse seeking interim spousal support, the “claimant” bears the burden of proving entitlement.
For an award of interim spousal support, a court considers the needs of the claimant spouse (income is primary, don’t consider assets unless they can be invested w/o risk most courts don’t consider earning capacity of stay-at-home spouse) the ability of the other party to pay (income, assets and maybe liabilities/earning capacity), and the standard of living the parties enjoyed while they were married.
fault is irrelevant to a determination of interim spousal support, the primary income earner pre-separation is typically the payor.
The trial court is vested with a great deal of discretion in determining whether and how much interim spousal support is appropriate and will only be overturned for abuse of discretion.
Interim spousal support is terminated by the judgment awarding/denying final spousal support or 180 days, whatever is shorter, can be extended upon showing of good cause.
Interim spousal support may be modified if there is a material change in circumstances (remarriage not sufficient) or terminated if no longer necessary.
Waiver of interim spousal support in a matrimonial agreement is against public policy and thus invalid.
Final Spousal Support
The court may award final periodic support to a party free from fault based on the needs of the claimant, the ability of the other party to pay, and the standard of living that the parties enjoyed while they were married.
In making a determination of final spousal support the court shall consider all relevant factors which may include: income and means of both parties including liquidity of assets, financial obligations of the parties, the earning capacity of the parties, the effect of child custody on earning capacity, “rehabilitative support” temporally limited support to help claimant acquire appropriate training/education/employment, the age and health of the parties, the duration of the marriage (habituation to dependency as if effects earning capacity), and the tax consequences to either/both parties.
The claimant must prove freedom from fault pre-petition that is both of a serious nature and independently contributory or a proximate cause of the termination (Article 102(2) or (3) divorce, intemperance or cruelty that renders living together insupportable (once incident sufficient but should be a series, reconciliation condones acts but future acts can “revive” series; but not incompatibility, nagging, fussing, criticism), abandonment without lawful cause and refusing to return after request (not leaving with lawful cause or living apart by agreement; abandonment can be “constructive” if forced/ordered out), public/infamatory defamation, attempted murder, fugitive spouse, intentional nonsupport in necessitous circumstances, failure to live up to marital duties of fidelity.
Condonation, mental illness, mental incapacity, physical infirmity, reconciliation, and provocation (?) can be a defense to fault.
The amount of final periodic support awarded shall not exceed one-third of the obligor’s net income.
Same standards for modification/termination as interim spousal support.
Enforcement/Procedure/Jurisdiction/Preemption for Support Awards/Modifications
Barbri P&D outline p. 26-27
Contribution to Earning Capacity of Spouse
A party that has made financial contributions to their spouse’s training or education during marriage that increased the other spouse’s earning power has a claim to recoup those financial contributions if they did not benefit from such during the marriage.
The claim arises when the divorce action is filed and prescribes 3 years from the signing of the judgment of divorce.
Calculation/Characterization/Nature of Financial Contribution Claim/Award
Barbi P&D outline p. 28
Child Custody Standard
In a proceeding for divorce, or thereafter, the court shall award custody of a child in accordance with the best interests of the child, the following factors bear on the court’s finding of best interest:
Emotional ties - love affection and emotional ties between party and child
Ability to nurture - Capacity and disposition of party to give love and guidance, and to continue the child’s education and rearing.
Ability to provide - Capacity of party to meet the child’s material needs.
Prior relationship - Length of time child has lived in stable and adequate environment and the desirability of continuing that environment.
Stability - Permanence, as a family unit, of existing or proposed custody home
Moral Fitness - Moral fitness of party, as it affects child.
Health - Party’s mental and physical health
History - Home, school and community history of child
Preference of child - reasonable preference of the child if old enough to decide.
Cooperation with other party - willingness and ability of party to foster child’s relationship with other party.
Location - Distance between parties’ residences.
Past Caregiver - Responsibility for care of child previously exercised by parties.
Child Custody Preference and Allocation of Authority and Responsibility
Barbri P&D outline p. 30-31
Change in Child Custody
In determining the requirements for a change in a custody arrangement depends upon whether the custody decision was a consent judgment or a considered decree.
in a consent judgment the trial court does not consider evidence of parental fitness and the party seeking modification need prove only that there has been a material change in circumstances and that the change is in the best interests of the child.
if the custody decision was a considered decree, which does take into account evidence of parental fitness, the court will apply the Bergeron standard and the party seeking modification 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 of the custody decree or that harm is likely to be caused by a change in environment is substantially outweighed by its advantages to the child.
Some courts have applied the Bergeron standard to motions to modify the designation of a domiciliary parent.
Custody of Illegitimate Children
Barbri P&D outline p.31-32
Visitation by Noncustodians
Barbri P&D outline p. 32-33
Interim Custody Pending Litigation
courts can only grant ex parte interim custody if immediate and irreparable injury to the child is imminent, any such order can last only 30-45 days and the other parent must be given visitation.
Evaluation of Person in Custody/Visitation Proceeding
The court may order an evaluation of a party or child in a custody or visitation proceeding for good cause shown by a mental health professional selected by the court who serves as a witness of the court and may be cross-examined by both parties.
Custody/Visitation Hearings/Mediation/Appeals/Compliance; Moving Child Residence; Military Parent
Barbi P&D outline p. 33-34
Venue/Jurisdiction for Child Custody/Visitation (UCCJEA)
Barbri P&D outline p. 35-36
Child Support
Barbri P&D outline p. 36-40, 47
Biological Filiation - Proof of Maternity
Maternity may be established by that the child was born of a particular woman by a preponderance of the evidence (testimony of witnesses to the fact of birth, documentary/scientific evidence).
Under Louisiana law the mother is the woman who gives birth to the child not necessarily the biological mother as compensated surrogacy contracts are null under LA law and you can adopt renounced ovum. But there is an exception for in vitro fertilization of a surrogate woman who is related by blood or affinity to mother and/or father.
Biological Filiation - Presumption of Paternity
Presumption of Paternity of Husband - The husband of the mother is presumed to be the father of a child born during the marriage or within 300 days of the termination of the marriage even if remarried by that point.
Biological Filiation - Subsequent Marriage
A man who marries the mother of a child is presumed to be the father of that child if he acknowledges the child by authentic act or signs the birth certificate with the mother’s consent, but not if the child is filiated to another man in which case the mother must file a contestation action.
Can overcome this this presumption with a disavowal subject to a 180-day preemptive period which begins from the day of the marriage or acknowledgement, whichever is later.
Biological Filiation - Formal Acknowledgment by the Father
A man may acknowledge a child, who is not filiated to another man, as his own by authentic act or by signing the birth certificate.
The acknowledgement creates a presumption of paternity which can be invoked only on behalf of the child but does not create a presumption in favor of the man acknowledging the child.
If the man executing the act of formal acknowledgment is not the biological father of the child, the act of acknowledgment is absolutely null and without legal effect.
Formal acknowledgment may be revoked (anyone can bring the action) without cause within 60 days by submitting a sworn statement or in a judicial hearing or within 2 years upon proof by clear and convincing evidence that the act was induced by fraud, duress, mistake, or the man is not the biological father (this does not affect prior child support due, paid, or owing).
Informal acknowledgment can only be used as evidence to prove paternity.
Biological Filiation - Child’s Action to Establish Paternity
A child may file suit to prove paternity even though the child is presumed to be the child of another man (LA recognized dual paternity).
If the father is living the child must prove paternity by a preponderance of the evidence, if the action is instituted after the father’s death the child must prove paternity by clear and convincing evidence.
The child must file within one year of the death of the alleged father for succession purposes only, otherwise unlimited.
Relevant evidence that is admissible to prove paternity includes blood tests (presumed at 99.9% certainty), informal acknowledgment, and cohabitation of the mother and father at the time of conception.
Biological Filiation - Avowal Action
A man can file suit to establish his paternity of a child by a preponderance of the evidence (same evidence as in the child’s avowal action).
If the child is presumed to be the child of another man the action must be filed within one year of the birth of the child unless the mother in bad faith deceived teh father regarding his paternity, then one year from the day the father knew or should have known of his paternity but not later than ten years after the child’s birth or one year from child’s death.
If the child is not presumed to be the child of another man the avowal action may be brought at any time but no later than one year from child’s death.
Biological Filliation - Disavowal Action
A husband or his heirs can overcome the presumption of paternity by filing an action to disavow paternity and showing clear and convincing evidence that he is not the father. The husband’s testimony is not necessary, but if used, must be corroborated by other evidence (lay witnesses, scientific/medical evidence).
The husband presumed to be the father must file a disavowal action within one year after he learned or should have learned of the birth of the child unless he lived apart from mother for 300 days preceding birth, in which case he must file within 1 year of receiving written notice of his alleged paternity. If husband dies, heirs have one year from death (or first notice).
If the father fails to bring timely action for disavowal the presumption of his paternity becomes irrebuttable even if another man is later proved to be the biological father.
Husband cannot disavow a child born as a result of assisted conception to which he consented.
If the mother is remarried at the time of the child’s birth and the first husband or his successor disavows, the second husband is presumed to be the father (can disavow within one year of final/definitive judgment of first husband’s disavowal.
Biological Filiation - Contestation action
The mother of the child can also overcome the presumption of paternity of a first husband in a contestation action. This requires her to prove that the former husband is not the father of the child and that her present husband is the father by showing clear and convincing evidence of such in with testimony corroborated by other evidence (lay witnesses, scientific/medical evidence). A contestation action also requires that the subsequent husband acknowledge the child by authentic act or signing of the birth certificate.
The mother must file a contestation action within 180 days of her getting married to the subsequent marriage and within two years from the birth of the child.
Applied to Facts - must have been married to first husband at most 300 days before birth of child and remarried to new husband before the child was two and must institute the contestation within 180 days
Biological Filiation - Post Mortem Artificial Conception
A child born after the death of a sperm or egg donor is deemed to be the donor’s child if born to the surviving spouse within three years of death and the donor spouse authorized in writing that the spouse could use the gametes.
Filiation by Adoption
An adopted person is the legitimate child of his adoptive parents for all purposes.
After adoption, most legal rights and duties between the adopted person and his biological parents and blood relatives terminate (unless step-parent adoption). adopted child can still inherit from natural parents and relatives.
Adult Adoption
Spouse or Surviving Spouse or Parent - no judicial authorization is necessary and the parent and person to be adopted can consent in an authentic act of adoption.
Non-Stepparent Adoptions - adoptive parent and person to be adopted must file a joint petition and the court can authorize the adoption if it is in the best interest of both parties.
In any adult adoption the consent of the spouse of the adoptive parent and the person to be adopted must be obtained in an authentic act of adoption.
A person cannot adopt his spouse in an effort to permit the spouse to participate in his parents’ succession.
Reciprocal Rights - Children and Parents
Barbri P&D outline p. 49-54
Tutorship
Whenever a child is not under parental authority (e.g. both parents deceased, divorce), he must be under tutorship.
A tutor has rights and obligations over the person of the minor and over the minor’s property.
Venue is appropriate in the parish where the child resides, where the surviving parent is domiciled or where the person awarded custody is domiciled.
Tutorship may be divided into tutorship over the person and tutorship of property.
For Tutorship by nature, the tutor need only qualify for the office, for every other type they must be confirmed or appointed by the court and qualify.
To qualify, a tutor must be 18 or older, not interdicted or incopetent, not a felon, not indebted to minor not an adverse party to a lawsuit in which the minor is a party, not infirm, not of bad moral character.
Most non-natural tutors must take an oath prior to taking office and must furnish security (bond, special mortgage, personal surety) in an amount equaling at least the total value of the minor’s moveable property.
In every tutorship there shall be an undertutor (same qualification/acceptance requirements as tutor) who performs any acts that eh tutor fails to perform but does not step in and assume the tutor’s duties if tutor dies/resigns.
Tutorship expires on majority or emancipation of the tutee, unless mentally incapacitated in which the parent of a person who has less than ⅔ mental ability of a normal person can petition court for continuing tutorship after majority which will continue until the contrary order of the court (essentially makes them a permanent minor, anyone may contest the decree).
Duties of Tutor
Under Louisiana law the tutor shall have custody of and shall care for the person of the minor, shall see that the minor is properly reared and educated in accordance with his station in life and has the obligation to administer the minor’s estate.
This is a fiduciary duty on behalf of the tutor for the benefit of the tutee and involves the right to bring suit on behalf or defend a suit against, buy or sell property in their name, accept donations on their behalf.
The tutor is required to file an annual accounting of all property of the minor.
Tutee’s action against tutor prescribes four years after tutee’s majority.
Tutorship by Nauture
Parents are the natural tutors of their legitimate children an cannot be excused from the obligation of tutorship, upon the death of one parent, the other parent automatically becomes the child’s tutor.
Upon divorce the tutor is the parent with custody, joint custody makes both parents co-tutors.
Mother is the tutrix of right if the father didn’t acknowledge the child or if she didn’t concur in his acknowledgment. If such mother dies then the court gives first consideration to mother’s parents or her siblings and secondly to the father, taking into account best interests of the child.
If both parents have acknowledge, court appoints taking into account child’s best interests.
Tutorship by Will
The right of appointing a tutor belongs exclusively to the spouse dying last unless one spouse is an interdict and the other spouse/curator dies first. Can be testamentary or through authentic act.
Named tutor need not accept, but if they refuse they lose other legacies which testator made believing he would accept tutorship.
Each parent may separately appoint a tutor of the property of the children and if several tutors are named then the first is the tutor and the others will only be called upon refusal, death, absence, or incapacitation of the previous tutor.
Tutorship by Effect of Law
When a tutor has not been appointed by the parent dying last, or otherwise necessary, the court selects a tutor from the child’s qualified direct ascendants, the child’s qualified collaterals by blood within the 3rd degree, and the child’s stepparent, while considering the best interests of the child.
Tutorship by Appointment (Dative Tutorship)
If a suitable tutorship by effect of law is not available, the court shall appoint a tutor. Court may also appoint a provisional tutor pending the appointment of a particular tutor.
Emancipation
Judicial Emancipation - court can order for “good cause” (protect parents from liability for the acts of minor; minor needs capacity to enter juridical acts; parents treat minor poorly), the full or limited emancipation of a minor over age 16 effective when the judgment is signed and can be modified/terminated for good cause but is only effective against 3p if filed where relevant property is located or where minor is domiciled (if moveable), petition for such may be filed by minor, parent, or jointly.
Emancipation by Marriage - A minor is fully emancipated when married and termination of the marriage does not affect emancipation.
Limited Emancipation by Authentic Act - Minor and parents or tutor of the minor can execute an authentic act of limited emancipation if the minor is over 16 effective when act is executed and can be modified for good cause but is only effective against 3p if filed where the property is located or where minor is domiciled (if moveable), does not relieve the parents of liability for the acts of the minor child
Interdiction
A court may order the full interdiction of an adult or emancipated minor who is unable to consistently make reasoned decision regarding the care of his person or manage his estate or is unable to effectively communicate those decisions and whose interests cannot be protected by less restrictive means.
Court may order a temporary interdiction when a petition for interdiction is pending if there is a substantial likelihood that grounds for interdiction exist and substantial harm to pending interdict is imminent.
The court shall appoint a curator and undercurator to represent the interdict who must exercise reasonable care, diligence, and prudence and act in the best interest in the interdict in caring for the person or affairs of the interdict.
A full interdict lacks the capacity to make any juridical act (partial interdict only wrt property/aspects of personal care that the judgment stipulated) all such acts post-petition are relatively null from the date of the filing for the petition for interdiction if it is granted.
Liability of Curators/Undercurators
Barbri P&D outline p. 60
Modification/Termination of Interdiction
A court may modify or terminate a judgment of interdiction for good cause if in the best interest of the interdict and will consider the following factors: whether curator has/will misapply, embezzle or remove the interdict’s property, has failed to render any account required by law, has failed to obey an order of the court, has comitted gross miscounduct or mismanagement of duties, is incapacitated (e.g. incompetence/incarceration), has abused, failed to educate interdict, or has failed to provide the interdict with as much independence as the means of the interdict and the conditions of his estate permit. Such a modification is effective on the date it is signed by the court.
A spouse, relative or interested person can petition for removal of the curator or undercurator upon a clear showing that either/both is not adequately performing their duties.
Preliminary/Temporary Interdiction and Wrongful Filing for Petition of Interdiction
Barbri P&D outline p. 62
Absent Persons
An absentee is a person who has no representative in the state and cannot be located with diligent effort.
If the absentee owns property in Louisiana the court may appoint a curator to manage or dispose of the property upon the petition of any interested party and a showing of necessity.
Curator must account for his management and restore the property when curatorship terminates and must file notice of termination in the curatorship proceeding and has the duty to initiate proceeding for a declaration of death in the case that absent person is presumed dead without known heirs. Curatorship terminates when absentee appears or when a judgement of declaration of death is rendered.
If absentee is absent for five years, he is presumed dead, interested persons may petition the court for declaration/determination of death (two years if related to Katrina/Rita and btw 8/26 and 9/30 2005)
Recovery of Property and Inheritance if Absentee Reappears
Barbri P&D outline p. 65
Legal Regine of Community of Acquets and Gains.
Married couples who are both domiciled in Louisiana are governed by Louisiana’s community property regime of acquets and gains from the time they both become Louisiana domiciliaries unless the have modified or terminated such through the establishment of a matrimonial agreement between both parties and regardless of their domicile at the time of marriage or the location of the ceremony.
While under the legal regime, each spouse owns a present undivided one-half interest in the community property and cannot alienate, encumber, or lease to a 3p their undivided interested in the community or in particular things of the community. Any such attempted disposition by intervivos act to a 3p is an absolute nullity (note: they can sell things in the community, just not their undivided interest).
Classification of Assets Under the Legal Regime
Things in the possession of a spouse during the existence of the legal regime are presumed to be community but either spouse may rebut this presumption by proof by a preponderance of the evidence that the property is separate.
Community Property - property acquired during the existence of the legal regime through effort, skill or industry of either spouse, acquired with some/all community things, property donated to spouses jointly, the natural and civil fruits of community property, damages awarded for loss or injury to a thing belonging to the community and all other property not classified as separate.
Separate Property - property acquired by spouse prior to the establishment of a community property regime, acquired by spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison to the value of separate things used (jurisprudence has held that inconsequential means less than 20%), inherited/donated to spouse individually (donative intent is dispositive), damages for mismanagement of community property by other spouse, damages arising from separate property.
Generally classification of property as community or separate is an all-or-nothing proposition (entirely community or entirely separate) unless subsequent acquisition of community interest in thing that spouse already has separate interest in or vice versa.
Legal Regine of Community of Acquets and Gains.
Married couples who are both domiciled in Louisiana are governed by Louisiana’s community property regime of acquets and gains from the time they both become Louisiana domiciliaries unless the have modified or terminated such through the establishment of a matrimonial agreement between both parties and regardless of their domicile at the time of marriage or the location of the ceremony.
While under the legal regime, each spouse owns a present undivided one-half interest in the community property and cannot alienate, encumber, or lease to a 3p their undivided interested in the community or in particular things of the community. Any such attempted disposition by intervivos act to a 3p is an absolute nullity (note: they can sell things in the community, just not their undivided interest).
Credit Sales and Bond For Deed Contracts
Classification of an asset under a legal regime is fixed at the moment of acquisition regardless of subsequent payments but may give rise to reimbursement rights for repayment of loans and the like.
Under louisiana sales law, title passes upon agreement on the thing and the price thus pre-marital property bought through a credit sale is separate property (e.g. bought car right before marriage but paid loan in community assets).
On the other hand, a bond for deed contract (installment sale) pases title after payment of the final installment and is community property if the contribution of community property to the total cost is not inconsequential.
Classification of Assets Under the Legal Regime
Things in the possession of a spouse during the existence of the legal regime are presumed to be community but either spouse may rebut this presumption by proof by a preponderance of the evidence that the property is separate.
Community Property - property acquired during the existence of the legal regime through effort, skill or industry of either spouse, acquired with some/all community things, property donated to spouses jointly, the natural and civil fruits of community property, damages awarded for loss or injury to a thing belonging to the community and all other property not classified as separate.
Separate Property - property acquired by spouse prior to the establishment of a community property regime, acquired by spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison to the value of separate things used (jurisprudence has held that inconsequential means less than 20%), inherited/donated to spouse individually (donative intent is dispositive), damages for mismanagement of community property by other spouse, damages arising from separate property.
Generally classification of property as community or separate is an all-or-nothing proposition (entirely community or entirely separate) unless subsequent acquisition of community interest in thing that spouse already has separate interest in or vice versa.
Credit Sales and Bond For Deed Contracts
Classification of an asset under a legal regime is fixed at the moment of acquisition regardless of subsequent payments but may give rise to reimbursement rights for repayment of loans and the like.
Under louisiana sales law, title passes upon agreement on the thing and the price thus pre-marital property bought through a credit sale is separate property (e.g. bought car right before marriage but paid loan in community assets).
On the other hand, a bond for deed contract (installment sale) pases title after payment of the final installment and is community property if the contribution of community property to the total cost is not inconsequential.
Real Subrogation
The principle of real subrogation is applicable to both separate and community property when a separate/community thing is converted into another thing (selling real estate and using the proceeds to buy stock).
Real Subrogation
The principle of real subrogation is applicable to both separate and community property when a separate/community thing is converted into another thing (selling real estate and using the proceeds to buy stock).
Estoppel by Deed
A declaration in an act of acquisition that things are acquired with separate funds are separate property may be controverted other spouse unless they concurred in the act and may be controverted by forced heirs and creditors regardless of whether spouse concurred in the act. Some courts have liberally interpreted this principle to apply to separate acts declaring previously acquired property as separate.
Matrimonial Agreements
Spouses may enter into a matrimonial agreement as to all matters that are not prohibited by public policy
okay - respective contributions to the expenses of the marriage, apportionment of community property, reservation of fruits of separate property as separate property, future property, waiver of final support.
not okay - renouncing/altering marital portion, renounce/alter order of succession, limitation on the right one spouse has to obligate, alienate, encumber or lease (not enforceable against 3p but enforceable between spouses), waiver of interim support.
A matrimonial agreement shall be made by authentic act or an act under private signature duly acknowledged by the spouses in the presence of a notary and two witnesses, this is only available to minors if both parents or tutor consents.
Spouses may freely enter into a matrimonial agreement before marriage, if executed/dualy acknowledged after marriage they must petition for/obtain court approval unless within first year of married couple acquiring domicile in this state.
Spouses may subject themselves to the legal regime at any time without court approval.
Estoppel by Deed
A declaration in an act of acquisition that things are acquired with separate funds are separate property may be controverted other spouse unless they concurred in the act and may be controverted by forced heirs and creditors regardless of whether spouse concurred in the act. Some courts have liberally interpreted this principle to apply to separate acts declaring previously acquired property as separate.
Matrimonial Agreements
Spouses may enter into a matrimonial agreement as to all matters that are not prohibited by public policy
okay - respective contributions to the expenses of the marriage, apportionment of community property, reservation of fruits of separate property as separate property, future property, waiver of final support.
not okay - renouncing/altering marital portion, renounce/alter order of succession, limitation on the right one spouse has to obligate, alienate, encumber or lease (not enforceable against 3p but enforceable between spouses), waiver of interim support.
A matrimonial agreement shall be made by authentic act or an act under private signature duly acknowledged by the spouses in the presence of a notary and two witnesses, this is only available to minors if both parents or tutor consents.
Spouses may freely enter into a matrimonial agreement before marriage, if executed/dualy acknowledged after marriage they must petition for/obtain court approval unless within first year of married couple acquiring domicile in this state.
Spouses may subject themselves to the legal regime at any time without court approval.
Nature of Legal Regime
Barbri CP outline p. 4-5
Nature of Legal Regime
Barbri CP outline p. 4-5
Community Property > Separate Property
The donation by a spouse to the other spouse of his undivided interest in an item of community property transforms that item into the donee spouse’s separate property. There is no special form requirement for donation of community property from one spouse to another, just has to be a valid donation (physical transfer of movable/donative intent).
Separate Property > Community Property
The transfer by a spouse to the other spouse of an item of separate property, with the stipulation that it shall be part of the community, transforms that item into community property. The Donor spouse must stipulate that the item “shall be part of the community property” and the transfer must be in writing for onerous transfers and by authentic act for gratuitous transfers. Failure to adhere to the special form requirements for donation of separate property turns the donated property into the separate property of the donee spouse.
Community Property > Separate Property
The donation by a spouse to the other spouse of his undivided interest in an item of community property transforms that item into the donee spouse’s separate property. There is no special form requirement for donation of community property from one spouse to another, just has to be a valid donation (physical transfer of movable/donative intent).
Separate Property > Community Property
The transfer by a spouse to the other spouse of an item of separate property, with the stipulation that it shall be part of the community, transforms that item into community property. The Donor spouse must stipulate that the item “shall be part of the community property” and the transfer must be in writing for onerous transfers and by authentic act for gratuitous transfers. Failure to adhere to the special form requirements for donation of separate property turns the donated property into the separate property of the donee spouse.
Comingling
Simply mixing community and separate funds/assets together does not vitiate their community/separate identity, however because assets held during the regime are presumed to be community a spouse claiming separate portion of an account balance must prove that the funds were deposited into the account and not withdrawn.
Comingling
Simply mixing community and separate funds/assets together does not vitiate their community/separate identity, however because assets held during the regime are presumed to be community a spouse claiming separate portion of an account balance must prove that the funds were deposited into the account and not withdrawn.
Earnings Under a Community Property Regime
Property acquired through the effort, skill or industry of either spouse is community property if the effort was expended during the existence of the legal regime (skill based sweepstakes=community, contingency fee=pro rata separation of fee btw separate and community based on % effort expended during legal regime).
Courts will classify funds as earnings and thus not subject to a declaration of paraphernality, to the extent the spouse expended effort in generating the funds (e.g. wife’s cash dividend from sole-owned corp is fruits if no services, earning if equal in value to uncompensated services, and part earnings part fruit if worth more than uncompensated services).
Fruits and Revenues of Separate Property Under a Community Property Regime
The natural/civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties , and shut-in payments arising from mineral leases are community property.
A spouse may unilaterally reserve such fruits and revenues as his separate property through a declaration of paraphernality a copy of which shall be provided to the other spouse, effective from the date the copy is provided and the declaration is filed for registry in the parish in which the immovable property is located or, for moveables, where the declarant is domiciled (might be okay to provide copy after filing due to ambiguity in statutory language).
Earnings Under a Community Property Regime
Property acquired through the effort, skill or industry of either spouse is community property if the effort was expended during the existence of the legal regime (skill based sweepstakes=community, contingency fee=pro rata separation of fee btw separate and community based on % effort expended during legal regime).
Courts will classify funds as earnings and thus not subject to a declaration of paraphernality, to the extent the spouse expended effort in generating the funds (e.g. wife’s cash dividend from sole-owned corp is fruits if no services, earning if equal in value to uncompensated services, and part earnings part fruit if worth more than uncompensated services).
Fruits and Revenues of Separate Property Under a Community Property Regime
The natural/civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties , and shut-in payments arising from mineral leases are community property.
A spouse may unilaterally reserve such fruits and revenues as his separate property through a declaration of paraphernality a copy of which shall be provided to the other spouse, effective from the date the copy is provided and the declaration is filed for registry in the parish in which the immovable property is located or, for moveables, where the declarant is domiciled (might be okay to provide copy after filing due to ambiguity in statutory language).
Pensions Under a Community Property Regime
Pensions are an exception to Louisiana’s all-or-nothing classification scheme and are classified on a pro rata basis and are community property to the extent attributable to effort expended by the spouse during the existence of the community.
For defined contribution pension plans he portion of the total pension attributable to the contributions made by the employee spouse during the legal regime determines the community share of the ultimate payments.
For defined benefit plans ultimate payments are typically determined using the fixed percentage approach (Sim’s Formula) which divides the portion of the pension attributable to employment during the existence of the legal regime and divides it by the total length of employment, which contributed to that pension or using the present value method of apportionment, with the (Hare) exception for extraordinary achievements by the employee after termination of the legal regime, although few reported decisions have found such efforts to be significant enough (e.g. next natural step in promotion not sufficient).
The court may also determine ultimate payments of a defined benefit plan by the present value method of apportionment which values the employee spouse’s interest in the plan and allocated to them and the nonemployee spouse is allocated community assets of an equal value, this involves greater speculation since the ultimate value of the pension is not known at the time of partition.
Social Security benefits are separate property of the beneficiary spouse through preemption of federal law but may entitle the non-beneficiary spouse to offsetting award of community assets of equal value.
The right to seek partition of pensions is imprescribable.
Pensions Under a Community Property Regime
Pensions are an exception to Louisiana’s all-or-nothing classification scheme and are classified on a pro rata basis and are community property to the extent attributable to effort expended by the spouse during the existence of the community.
For defined contribution pension plans he portion of the total pension attributable to the contributions made by the employee spouse during the legal regime determines the community share of the ultimate payments.
For defined benefit plans ultimate payments are typically determined using the fixed percentage approach (Sim’s Formula) which divides the portion of the pension attributable to employment during the existence of the legal regime and divides it by the total length of employment, which contributed to that pension or using the present value method of apportionment, with the (Hare) exception for extraordinary achievements by the employee after termination of the legal regime, although few reported decisions have found such efforts to be significant enough (e.g. next natural step in promotion not sufficient).
The court may also determine ultimate payments of a defined benefit plan by the present value method of apportionment which values the employee spouse’s interest in the plan and allocated to them and the nonemployee spouse is allocated community assets of an equal value, this involves greater speculation since the ultimate value of the pension is not known at the time of partition.
Social Security benefits are separate property of the beneficiary spouse through preemption of federal law but may entitle the non-beneficiary spouse to offsetting award of community assets of equal value.
The right to seek partition of pensions is imprescribable.
Pensions and Federal Preemption
Barbri CP outline p. 17
Personal Injury Damages Under a Community Property Regime
Damages due to personal injuries sustained during the existence of the legal regime are separate property exception the portions attributable to community expenses or lost wages during the existence of the legal regime (pro rata).
Pensions and Federal Preemption
Barbri CP outline p. 17
Personal Injury Damages Under a Community Property Regime
Damages due to personal injuries sustained during the existence of the legal regime are separate property exception the portions attributable to community expenses or lost wages during the existence of the legal regime (pro rata).
Life Insurance Under a Community Property Regime
Proceeds of a policy payable upon death (term-life) are the separate property of the named beneficiary, whole-life insurance policies acquired during marriage are community property so long as the community contribution is not inconsequential and are valued at its cash surrender value at the time of partition.
Life Insurance Under a Community Property Regime
Proceeds of a policy payable upon death (term-life) are the separate property of the named beneficiary, whole-life insurance policies acquired during marriage are community property so long as the community contribution is not inconsequential and are valued at its cash surrender value at the time of partition.
Disability Payments
For disability payments the nature of the benefits and not source of the payments is determinative lost income is community but deferred compensation is separate.
Intellectual Property Under a Community Property Regime
Intellectual property works are classified on a pro rata basis according to the portion of the revenue ultimately generated by the work attributable to work performed during the existence of the community.
This is preempted for copyrighted works where the fructus remains community while the usus and abusus remains separate.
Disability Payments
For disability payments the nature of the benefits and not source of the payments is determinative lost income is community but deferred compensation is separate.
Intellectual Property Under a Community Property Regime
Intellectual property works are classified on a pro rata basis according to the portion of the revenue ultimately generated by the work attributable to work performed during the existence of the community.
This is preempted for copyrighted works where the fructus remains community while the usus and abusus remains separate.
Goodwill of Business Under a Community Property Regime
Goodwill of a community owned corporate, commercial or professional business is community except to the extent it is attributable to any personal quality of the spouse (e.g. personal skill in designing a wedding dress).
Goodwill of Business Under a Community Property Regime
Goodwill of a community owned corporate, commercial or professional business is community except to the extent it is attributable to any personal quality of the spouse (e.g. personal skill in designing a wedding dress).
Insurance Policy Renewal Commissions
Barbri CP outline p. 13
Management of Community Property
The concurrence of both spouses is required for the donation, alienation, encumberance, or lease of community immovables, standing, cut, or fallen timber (or the harvest thereof), furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise and movables issued or registered in the names of the spouses jointly.
Concurrence is not required for the donation of a usual or customary gift of value commensurate with the economic position of the spouses at the time of the donation.
A spouse can ratify the alienation encombrance or lease of a community immovable.
A spouse may petition the court for authority to act without the concurrence of the other spouse if the other spouse arbitrarily refuses to concur or cannot concur due to incapacity/absence and it is in the best interest of the family, can also do so for property that the absent spouse has the exclusive right manage.
A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name and/or their partnership or LLC interests.
Other sole manager spouse must obtain their consent to alienate/encumber registered moveables.
Insurance Policy Renewal Commissions
Barbri CP outline p. 13
Management of Community Property
The concurrence of both spouses is required for the donation, alienation, encumberance, or lease of community immovables, standing, cut, or fallen timber (or the harvest thereof), furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise and movables issued or registered in the names of the spouses jointly.
Concurrence is not required for the donation of a usual or customary gift of value commensurate with the economic position of the spouses at the time of the donation.
A spouse can ratify the alienation encombrance or lease of a community immovable.
A spouse may petition the court for authority to act without the concurrence of the other spouse if the other spouse arbitrarily refuses to concur or cannot concur due to incapacity/absence and it is in the best interest of the family, can also do so for property that the absent spouse has the exclusive right manage.
A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name and/or their partnership or LLC interests.
Other sole manager spouse must obtain their consent to alienate/encumber registered moveables.
Renunciation of Spousal Right to Concur in the Management of Community Assets
A spouse may expressly renounce the right to concur in the alienation/donation of all/specific community property. Renunciations may only be irrevocable for up to 3 years and removes the revoking spouse from satisfaction of related obligations from their separate assets.
Renunciation of Spousal Right to Concur in the Management of Community Assets
A spouse may expressly renounce the right to concur in the alienation/donation of all/specific community property. Renunciations may only be irrevocable for up to 3 years and removes the revoking spouse from satisfaction of related obligations from their separate assets.
Mismanagement of Community Assets
The alienation/encumbrance/lease of relevant community property without concurrence is relatively null and gives rise to an action to annul the sale.
A spouse is liable for any loss or damage (sold at under value) caused by fraud or bad faith (sold to girlfriend) in the management of community property.
Termination of Legal Regime
Death, nullity, divorce, matrimonial agreement, judgment decreeing separation of property.
Mismanagement of Community Assets
The alienation/encumbrance/lease of relevant community property without concurrence is relatively null and gives rise to an action to annul the sale.
A spouse is liable for any loss or damage (sold at under value) caused by fraud or bad faith (sold to girlfriend) in the management of community property.
Termination of Legal Regime
Death, nullity, divorce, matrimonial agreement, judgment decreeing separation of property.
Management of Former Community Property
A spouse must preserve and manage former community property under his control in a manner consistent with the use of the property prior to termination.
A spouse may not alienate community property (other than moveables registered in his name) without concurrence but can seek judicial authorization to do so if he can show that that action is necessary, in the best interest of the petitioning spouse and not detrimental to the non-concurring spouse and the other spouse is absent, incapacitated, imprisoned incompetent or is acting arbitrarily.
A spouse is not liable to the other spouse for rental for the use and occupancy of the former community home unless previously agreed to or prospectively ordered by the court.
A spouse has the right to demand judicial partition of former community property at any time (contrary agreements are absolutely null).
Management of Former Community Property
A spouse must preserve and manage former community property under his control in a manner consistent with the use of the property prior to termination.
A spouse may not alienate community property (other than moveables registered in his name) without concurrence but can seek judicial authorization to do so if he can show that that action is necessary, in the best interest of the petitioning spouse and not detrimental to the non-concurring spouse and the other spouse is absent, incapacitated, imprisoned incompetent or is acting arbitrarily.
A spouse is not liable to the other spouse for rental for the use and occupancy of the former community home unless previously agreed to or prospectively ordered by the court.
A spouse has the right to demand judicial partition of former community property at any time (contrary agreements are absolutely null).
Community Obligations
An obligation incurred by a spouse during the existence of the legal regime for the common interest of the spouses or for the benefit of the other spouse is a community obligation. All obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations (this includes alimentary obligation from previous marriage and attorney fees and costs in an action for/incidental to divorce).
Separate Obligations
Obligations incurred prior to the establishment of the legal regime, incurred during the legal regime for the sole interest of the spouse incurring the obligation, and obligations for intentional torts not perpetrated for the benefit of the community are separate.
Community Obligations
An obligation incurred by a spouse during the existence of the legal regime for the common interest of the spouses or for the benefit of the other spouse is a community obligation. All obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations (this includes alimentary obligation from previous marriage and attorney fees and costs in an action for/incidental to divorce).
Separate Obligations
Obligations incurred prior to the establishment of the legal regime, incurred during the legal regime for the sole interest of the spouse incurring the obligation, and obligations for intentional torts not perpetrated for the benefit of the community are separate.
Reimbursement Between Spouses
A claim for reimbursement may be asserted only after the termination of the legal regime. Reimbursement shall be made from the patrimony of the spouse who owes reimbursement and is treated like an interest-free loan and is thus based upon the amount or value of the assets used at the time they were used.
As between spouses, the owner of the ground owns all the improvements placed thereon.
Reimbursement Between Spouses
A claim for reimbursement may be asserted only after the termination of the legal regime. Reimbursement shall be made from the patrimony of the spouse who owes reimbursement and is treated like an interest-free loan and is thus based upon the amount or value of the assets used at the time they were used.
As between spouses, the owner of the ground owns all the improvements placed thereon.
Reimbursement Between Spouses - Separate Used to Benefit Separate
A spouse that contributes separate property during the existence of the legal regime for the acquisition, use, improvement, or benefit of the other spouse’s separate property or to discharge a separate obligation is entitled to reimbursement for their property at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses).
