Code I (Persons) Flashcards
Natural Person
human being
commences moment of live birth then retroactive to time of conception
Juridical Person
entity to which law attributes a personality
Domicile
- Presence
- Intent to remain indefinitely
Change of Domicile
must move and have intent to remain indefinitely
Spouses Domicile
may have common or separate
Unemancipated Minors Domicile
of the parent or parents with whom minor usually resides
Interdicts Domicile
domicile of their curator
limited interdict retains his domicile
Military Personnel Domicile
domiciliary of parish where action is filed if:
1. has been in state for 6 months
2. resided in the parish where the suit was filed for at least 90 days prior to filing
Marriage
legal relationship between two people created by civil contract
Prerequisites for Valid Marriage
- no legal impediments
- marriage ceremony
- mutual consent expressed at ceremony
Legal Impediments of Marriage
- existing marriage
- Too closely related
- Age (under 16 = no; 16-17 w/consent = not with major if more than 3 year difference)
Marriage Ceremony
- performed by a qualified third party celebrant (reasonably believe is qualified)
- license issued 24 hours before ceremony
- two witnesses 18 or older
- signature of the parties
Mutual Consent
- both parties must attend
- verbally expressed
Covenant Marriage
subject to special rules for formation, counseling and termination
Relative Nullity Marriage
lacking consent
only revocable by nonconsenting party
can be later confirmed by party without consent by acts
Absolute Nullity Marriage
- impediment
- invalid ceremony
Putative Marriage Doctrine
absolute null marriage but atleast one spouse was in good faith
Rules of Putative Marriage - Death of common spouse
bad faith = 1/2 community goes to legal spouse and 1/2 to putative spouse
good faith = heirs acquire 1/2 and GF putative spouse gets 1/2
Mutual Duties of Marriage
- Fidelity
- furnish necessities
- care for ill spouse
unenforceable by may bar final support
Parental Authority
jointly exercise parental authority
Termination of Marriage
- death of spouse
- judicial declaration of nullity when relatively null
- issuance by court of military spouse when presumed dead
- entry of judgment for divorce
102 No-Fault Divorce
divorce AFTER parties have lived separate and apart for requisite time
180/365 (minor children of marriage)
Comm Prop terminated retroactively to date of filing
102 Divorce Procedure
- File Petition alleging jurisdiction and venue verified by affidavit
- File Rule to show cause AFTER requisite time passes
RULE TO SHOW CAUSE MUST:
i) allege service or waiver within 90 days of filing of initial pleading
ii) allege requisite time has passed
iii) allege separation
iv) verified by mover with affidavit
103(1) No-Fault Divorce
living separately and apart continuously for 180/365days BEFORE filing
comm prop is terminated retroactively at time of filing
Fault Based Divorces
Immediate
103(2) Adultery - corroborated proof of adultery
103(3) Felony - death or imprisonment at hard labor
103(4)&(5) Physical/Sex Abuse - upon proof or if there was a protective order or injunction
Defenses to Divorces
no-fault - procedural
fault - reconciliation or mental condition
Domestic Abuse Assistance Act
civil remedy for victims of domestic violence
provides issuance of ex parte temp restraining order
contradictory hearing is required within 21 days must prove by preponderance of the evidence
Interim Spousal Support
maintain financial status quo until judgment of divorce
- spouse has a need
- other spouse has the ability
- considering any interim or final child support
- based on standard of living enjoyed during marriage
modified if MATERIAL CHANGE and terminated if unnecessary
terminated 180 days from judgment
FAULT IS IRRELEVANT
Final Spousal Support
- based on need of spouse
- ability of other to pay
- only when claimant is free from fault prior to the filing
when receiving fault based divorce or spouse/child was victim of abuse presumed to be entitled to final support
Freedom from Fault
serious misconduct independent contributory OR proximate cause of separation
- adultery
- felony
- abuse spouse or child
- habitual intemperance or cruel treatment
- abandonment
- public and inflammatory defamation
- attempted murder of spouse
- failure to live up to marital duties
Reconciliation is defense
Amount of Final Support Factors
TAFCRIEDD
1. Tax consequences of parties
2. age and health
3. financial obligations
4. child custody arrangements
5. Rehabilitation
6. Income and means
7. Earning Capacity
8. Duration of marriage
9. Domestic Abuse
Modification of Final Support
materially change of either party
Enforcement of Support
income assignment
if judgement for arrearages MUST award attorney’s fees to other
Termination of Final Support
- remarriage of obligee
- death of either
- judicial determination obligee has cohabitated with another person in manner of married persons
Waiver of Support
Authentic act under private signature duly aknowledged
anytime prior or during marriage or after divorce
CANT WAIVE INTERIM
Peremption Period for Final Spousal Support
3 years
Contributions to Education or Training
factors
1. contributing spouse’s expected shared benefit
2. degree of detriment
3. benefit received by recipient spouse
Prescribes 3 years after divorce
“DeLa Rosa Formula” for financial contributions to education and training
half of earning spouse’s income used for joint living expenses
subtract half of student’s spouse’s income used for joint living expenses
add cost of direct education expenses
Best Interest of Child Factors
PAPA HELPS CHAMP
1. Potential for abuse
2. Abusive History (alcohol, violence, etc.)
3. Prior Relationships (time in stable environment)
4. Ability to Nurture (love and guidance)
- Health (mental and physical)
- Emotional ties (between parties and child)
- Location (distance between)
- Preference of Child (reasonable)
- Stability (permanence as family unit)
- Cooperation with Other Party (Except when abuse is present)
- History (home, school, community)
- Ability to provide (meet child’s needs)
- Moral Fitness (as it affects welfare of child)
- Past Caregiver (responsibility of care)
Change of Custody
Bergeron Considered Decree
1. continuation of present custody is do deleterious as to justify modification; OR
2. by clear and convincing evidence harm likely to be caused by change outweighed by advantages to child
Consent Custody Judgments
1. a material change
2. proposed modification is in best interest of the child
Custody Preferences by Court
- in accordance with parents agreement (unless not in BIOC)
- absent agreement or not in BIOC typically joint custody
Implementation Order
MUST ALLOCATE:
1. physical custody time periods
2. legal authority of parents
3. Designate a domiciliary parent
Domiciliary Parent’s Rights
to make all decisions affecting the child unless implementation order says otherwise
presumed BIOC
NO CO-DOM parents
Parental Sole Custody
clear and convincing evidence to serve BIOC
Nonparent Custodian
if joint or sole would result in substantial harm custody awarded to another whom the child has been living in a wholesome and stable environment or able to provide adequate environment
Parental Visitation
Not granted custody or joint custody is entitled to reasonable visitation unless not in BIOC
Nonparent Visitation
parents are not married or living together, or married and filed for divorce
grandparent’s and under EXTRAORDINARY circumstances siblings or other relatives may be granted visitation if in BIOC
Domestic Violence and Visitation
presume no custody and only supervised visitation
can overcome presumption (treatment program, no drugs or alcohol, in BIOC)
Relocation of Residence of Child
must give notice to parent or other with custody or visitation when moving out of state, or 75 miles or more within state
Failure to give notice may constitute change of circumstance for modification
Parties with equal custody MUST obtain court authorization or written consent from other party
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Home State Jurisdiction Test:
1. child’s home state which child lived with parent (>6mths or since birth if younger)
2. Was home state and is absent but parent lives in state
3. had been home state w/in last 12 months by emergency or disaster prevents return
Home state does NOT apply when no other state accepts J and:
1. child and at least one parent have significant connection with sate AND
2. substantial evidence concerning child is in the state
Exclusive Continuing Jurisdiction
court that makes initial custody or visitation ruling has exclusive continuing J until:
1. child and parent no longer reside in state OR
2. child no longer has significant connections and substantial evidence is no longer available
Modifying another states Order
must have initial J and:
1. other court determines no longer has J OR
2. LA court or other state court determines parties no longer reside in that state
Temp Emergency Jurisdiction
child is present and has been abandoned or it is necessary to protect child, sibling, or parent from abuse
Venue - Custody
Initial Hearing:
where party is domiciled OR parish of last matrimonial domicile
Change Custody:
parish where person awarded custody is domiciled OR parish where custody decree was entered
joint custody = parish of domiciliary parent
Child Support
based on needs of child and ability to pay
Income Shares Model
Income = actual or potential income if parent is voluntarily un or underemployed
- determine each party’s gross income
- subtract preexisting child or spouse support paid to another not a party or on behalf of another child
- Combine parties adjusted gross income and compute share as percentage
- look to child support schedule
- equal time = child support obligation x1.5
- adds cost of health insurance and care costs
- multiply by party’s percentage
Child support duration
until majority or fully emancipated
when student beyond 18 until 19 or graduating high school whichever is first
Child with disability regardless of age
adult child if in need and is limited to basics upon proof of inability
Enforcement of Child Support
by a summary contempt proceeding
makes past due amounts executory and legal interest is awarded on payments due
generally awarded attny fees
Proof of Maternity
proof by a preponderance of the evidence
Presumption of Paternity of Husband
husband of mother presumed to be father of child born during the marriage or within 300 days of termination of marriage
If remarried 1st is assumed, if 1st disavows 2nd presumed
Disavowal Action
husband (or heirs) be clear and convincing evidence
within 1 year of birth or day in which husband knew or should have known he might not be biological father
Contestation and Establishment Action
remarried mother established former husband is NOT father and present husband is…IF present husband acknowledged by AUTHENTIC ACT
Mother must prove by clear and convincing evidence
must be instituted by mother within 180 days from her present marriage AND within 2 years of birth
Three-Party Aknowledgement
blood or tissue shows 99.99% that biological father is the father and NOT husband or former husband
mother, bio father, and PRESUMED father sign authentic act declaring bio father
MUST be executed before child turns 10 and within one year of the child’s death
Presumption of Paternity by subsequent marriage and Acknowledgment
man marries mother of child is presumed father if he acknowledges by authentic act
CHILD MUST NOT BE FILIATED TO ANOTHER MAN
mother must concur in form of judicial act
Father may disavow paternity subject to 180 day peremptive period from day of marriage or acknowledgment whichever is later
Presumption of Paternity by Formal Acknowledgment
child NOT filiated to another man by signing authentic act
sufficient to establish obligation to child and visition
ANYONE may rebut
may be annulled w/o cause w/in 60 days after must be by clear and convincing evidence it was induced by fraud, duress, mistake or other is father
Child’s Action (Paternity Action)
even if presumed to another (dual paternity is OKAY)
father alive = preponderance of the evidence
Father dead = clear and convincing
within one year of death of father for succession purposes
Father’s Action (avowal action)
preponderance of the evidence
presumed child of another = within one year of birth (unless mother in BF) one year from knowing or should have known
within one year of child’s death
PEREMPTIVE
Presumption for Child Support ONLY
mother identifies father and he fails to contest
Filiation by Adoption
may adopt from both parents
Obligations of Parents
support, maintain, and educate
vicariously liable for torts of children
Obligations of Children
care for ill parent and may not leave home without consent, obey parents in all lawful and moral matters
Tutorship
child not under parents must be under tutorship
may be divided over the person and over the property
Tutorship by Nature
parents are natural tutors of their children
Tutors by will
belongs exclusively to parent dying last
Tutorship by Effect of Law
court will select if none appointed or necessary
Dative Tutorship
orphan with no tutor or relations court will appoint
Duties of a tutor
minor is properly reared and educated
right and obligation to administer minor’s estate
required to file annual accounting of property
fiduciary duty to tutee
action against tutor prescribes 4 years from majority
Judicial Emancipation
minor, his parents, or minor and parents jointly file
For good cause court can order full or limited emancipation of minor 16 or older
good cause = parents need protection from liability of minor’s acts (runaway), minor needs capacity to enter juridical acts, parents treat minor poorly
Emancipation by Marriage
minor is fully emancipated when married
Limited Emancipation by Authentic Act
when minor reaches 16
authority for juridical acts stated in act
Interdiction
ordered when a person is incapable of caring for himself and administering his estate due to an infirmity
limited when capable of himself or estate
Curators and Undercurators
court must appoint
18 or older and not interdict, resident of louisiana, or have a registered agent
exercise reasonable care, diligence, and prudence and act in best interest
Absentees
no rep in state and cannot be located with diligent effort
court may appoint curator to manage property in state
Declaration of Death
absent for 5 years is presumed dead
interested person may petition court for declaration and determination of date of death
Katrina/Rita Provisions
absence between 8/26/05 and 9/30/05 and was related to the hurricanes and not charged with felony currently is presumed dead after 2 years
Reappearance of Absentee
declared dead can recover property
alienated = net proceeds
encumbered = diminution in value
Absent appears w/in two years from date of final judgment of possession:
demand immovable property by onerous title if acquired by heir
not entitled to fruits from his successors or improvements
