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LA BAR > Code I (Persons) > Flashcards

Code I (Persons) Flashcards

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1
Q

Natural Person

A

human being

commences moment of live birth then retroactive to time of conception

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2
Q

Juridical Person

A

entity to which law attributes a personality

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3
Q

Domicile

A
  1. Presence
  2. Intent to remain indefinitely
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4
Q

Change of Domicile

A

must move and have intent to remain indefinitely

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5
Q

Spouses Domicile

A

may have common or separate

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6
Q

Unemancipated Minors Domicile

A

of the parent or parents with whom minor usually resides

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7
Q

Interdicts Domicile

A

domicile of their curator

limited interdict retains his domicile

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8
Q

Military Personnel Domicile

A

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

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9
Q

Marriage

A

legal relationship between two people created by civil contract

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10
Q

Prerequisites for Valid Marriage

A
  1. no legal impediments
  2. marriage ceremony
  3. mutual consent expressed at ceremony
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11
Q

Legal Impediments of Marriage

A
  1. existing marriage
  2. Too closely related
  3. Age (under 16 = no; 16-17 w/consent = not with major if more than 3 year difference)
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12
Q

Marriage Ceremony

A
  1. performed by a qualified third party celebrant (reasonably believe is qualified)
  2. license issued 24 hours before ceremony
  3. two witnesses 18 or older
  4. signature of the parties
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13
Q

Mutual Consent

A
  1. both parties must attend
  2. verbally expressed
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14
Q

Covenant Marriage

A

subject to special rules for formation, counseling and termination

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15
Q

Relative Nullity Marriage

A

lacking consent

only revocable by nonconsenting party

can be later confirmed by party without consent by acts

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16
Q

Absolute Nullity Marriage

A
  1. impediment
  2. invalid ceremony
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17
Q

Putative Marriage Doctrine

A

absolute null marriage but atleast one spouse was in good faith

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18
Q

Rules of Putative Marriage - Death of common spouse

A

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

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19
Q

Mutual Duties of Marriage

A
  1. Fidelity
  2. furnish necessities
  3. care for ill spouse

unenforceable by may bar final support

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20
Q

Parental Authority

A

jointly exercise parental authority

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21
Q

Termination of Marriage

A
  1. death of spouse
  2. judicial declaration of nullity when relatively null
  3. issuance by court of military spouse when presumed dead
  4. entry of judgment for divorce
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22
Q

102 No-Fault Divorce

A

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

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23
Q

102 Divorce Procedure

A
  1. File Petition alleging jurisdiction and venue verified by affidavit
  2. 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

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24
Q

103(1) No-Fault Divorce

A

living separately and apart continuously for 180/365days BEFORE filing

comm prop is terminated retroactively at time of filing

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25
Q

Fault Based Divorces

A

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

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26
Q

Defenses to Divorces

A

no-fault - procedural

fault - reconciliation or mental condition

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27
Q

Domestic Abuse Assistance Act

A

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

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28
Q

Interim Spousal Support

A

maintain financial status quo until judgment of divorce

  1. spouse has a need
  2. other spouse has the ability
  3. considering any interim or final child support
  4. based on standard of living enjoyed during marriage

modified if MATERIAL CHANGE and terminated if unnecessary

terminated 180 days from judgment

FAULT IS IRRELEVANT

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29
Q

Final Spousal Support

A
  1. based on need of spouse
  2. ability of other to pay
  3. 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

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30
Q

Freedom from Fault

A

serious misconduct independent contributory OR proximate cause of separation

  1. adultery
  2. felony
  3. abuse spouse or child
  4. habitual intemperance or cruel treatment
  5. abandonment
  6. public and inflammatory defamation
  7. attempted murder of spouse
  8. failure to live up to marital duties

Reconciliation is defense

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31
Q

Amount of Final Support Factors

A

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

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32
Q

Modification of Final Support

A

materially change of either party

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33
Q

Enforcement of Support

A

income assignment

if judgement for arrearages MUST award attorney’s fees to other

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34
Q

Termination of Final Support

A
  1. remarriage of obligee
  2. death of either
  3. judicial determination obligee has cohabitated with another person in manner of married persons
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35
Q

Waiver of Support

A

Authentic act under private signature duly aknowledged

anytime prior or during marriage or after divorce

CANT WAIVE INTERIM

36
Q

Peremption Period for Final Spousal Support

A

3 years

37
Q

Contributions to Education or Training

A

factors
1. contributing spouse’s expected shared benefit
2. degree of detriment
3. benefit received by recipient spouse

Prescribes 3 years after divorce

38
Q

“DeLa Rosa Formula” for financial contributions to education and training

A

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

39
Q

Best Interest of Child Factors

A

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)

  1. Health (mental and physical)
  2. Emotional ties (between parties and child)
  3. Location (distance between)
  4. Preference of Child (reasonable)
  5. Stability (permanence as family unit)
  6. Cooperation with Other Party (Except when abuse is present)
  7. History (home, school, community)
  8. Ability to provide (meet child’s needs)
  9. Moral Fitness (as it affects welfare of child)
  10. Past Caregiver (responsibility of care)
40
Q

Change of Custody

A

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

41
Q

Custody Preferences by Court

A
  1. in accordance with parents agreement (unless not in BIOC)
  2. absent agreement or not in BIOC typically joint custody
42
Q

Implementation Order

A

MUST ALLOCATE:
1. physical custody time periods
2. legal authority of parents
3. Designate a domiciliary parent

43
Q

Domiciliary Parent’s Rights

A

to make all decisions affecting the child unless implementation order says otherwise

presumed BIOC

NO CO-DOM parents

44
Q

Parental Sole Custody

A

clear and convincing evidence to serve BIOC

45
Q

Nonparent Custodian

A

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

46
Q

Parental Visitation

A

Not granted custody or joint custody is entitled to reasonable visitation unless not in BIOC

47
Q

Nonparent Visitation

A

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

48
Q

Domestic Violence and Visitation

A

presume no custody and only supervised visitation

can overcome presumption (treatment program, no drugs or alcohol, in BIOC)

49
Q

Relocation of Residence of Child

A

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

50
Q

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A

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

51
Q

Exclusive Continuing Jurisdiction

A

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

52
Q

Modifying another states Order

A

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

53
Q

Temp Emergency Jurisdiction

A

child is present and has been abandoned or it is necessary to protect child, sibling, or parent from abuse

54
Q

Venue - Custody

A

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

55
Q

Child Support

A

based on needs of child and ability to pay

56
Q

Income Shares Model

A

Income = actual or potential income if parent is voluntarily un or underemployed

  1. determine each party’s gross income
  2. subtract preexisting child or spouse support paid to another not a party or on behalf of another child
  3. Combine parties adjusted gross income and compute share as percentage
  4. look to child support schedule
  5. equal time = child support obligation x1.5
  6. adds cost of health insurance and care costs
  7. multiply by party’s percentage
57
Q

Child support duration

A

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

58
Q

Enforcement of Child Support

A

by a summary contempt proceeding

makes past due amounts executory and legal interest is awarded on payments due

generally awarded attny fees

59
Q

Proof of Maternity

A

proof by a preponderance of the evidence

60
Q

Presumption of Paternity of Husband

A

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

61
Q

Disavowal Action

A

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

62
Q

Contestation and Establishment Action

A

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

63
Q

Three-Party Aknowledgement

A

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

64
Q

Presumption of Paternity by subsequent marriage and Acknowledgment

A

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

65
Q

Presumption of Paternity by Formal Acknowledgment

A

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

66
Q

Child’s Action (Paternity Action)

A

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

67
Q

Father’s Action (avowal action)

A

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

68
Q

Presumption for Child Support ONLY

A

mother identifies father and he fails to contest

69
Q

Filiation by Adoption

A

may adopt from both parents

70
Q

Obligations of Parents

A

support, maintain, and educate

vicariously liable for torts of children

71
Q

Obligations of Children

A

care for ill parent and may not leave home without consent, obey parents in all lawful and moral matters

72
Q

Tutorship

A

child not under parents must be under tutorship

may be divided over the person and over the property

73
Q

Tutorship by Nature

A

parents are natural tutors of their children

74
Q

Tutors by will

A

belongs exclusively to parent dying last

75
Q

Tutorship by Effect of Law

A

court will select if none appointed or necessary

76
Q

Dative Tutorship

A

orphan with no tutor or relations court will appoint

77
Q

Duties of a tutor

A

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

78
Q

Judicial Emancipation

A

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

79
Q

Emancipation by Marriage

A

minor is fully emancipated when married

80
Q

Limited Emancipation by Authentic Act

A

when minor reaches 16

authority for juridical acts stated in act

81
Q

Interdiction

A

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

82
Q

Curators and Undercurators

A

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

83
Q

Absentees

A

no rep in state and cannot be located with diligent effort

court may appoint curator to manage property in state

84
Q

Declaration of Death

A

absent for 5 years is presumed dead

interested person may petition court for declaration and determination of date of death

85
Q

Katrina/Rita Provisions

A

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

86
Q

Reappearance of Absentee

A

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

LA BAR (25 decks)

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