Code I - Persons & Domicile Flashcards
What is a natural person? When does personality start?
A natural person is a human being. A natural person is a human being.
Commencement of personality commences from the moment of live birth and terminates at death.
After live birth, the child is consdiered to have been a natural person from the time of coneption; inheritance rights relate back to the moment of conception.
What is an exception to the live birth requirement for personality to commence?
A fetus does not need to be born alive in order to maintain a wrongful death action
When does natural personality terminate? How is death established?
Natural personality terminates at death.
Death is established by the following:
a. Docter’s certification (brain + heart death)
b. Judicial declaration (presumed dead by circumstances; absent person for five years)
What state’s law controls when determining the status of a natural person?
The statue of a natural person and the effects of that status are governed by the law of the state whose law would be most seriously impaired if its law were not applied.
What is a juridical person?
An entity to which law attributes personality.
What test factors are taken into account for conflict of laws regarding status?
Relationships; policies and needs of systems/minimizing local prejudice.
What are other factors when determining the status of a person?
- State denotes also foreign countries and territories in addition to states.
- Renvoi, when the law of another state is applicable, that law shall not include the law of conflict of laws of that state.
- Cannot apply foreign laws if it would result in the violation of the federal or state constituiton.
Is an in vitro ovum a juridical person?
Yes. An in vitro fertilized ovum is a juridical person.
- Fertilized ovum exists as a juridical person until it is implaned in the womb.
- Apply the best interest test to the in vitro fertilized ovum.
- An ovum has no inheritance rights unless it is born alive. Cannot retain inheritance rights from its biological donor parents when donated to another couple.
Are business and governmental organizations juridical persons?
Yes.
What is the domicile of a natural person?
The domicile of a natural person is his habitual residence. Generally can only have one domicile even if you have multiple residences.
Is there a presumption in favor of one domicile?
Yes, strong legal presumption in favor of ancient domicile or domicile of origin.
What test to apply to person with multiple domiciles?
Any residence may be considered the domicile or habitual residence at the option of perons whose interests are affect. STATE OF FACTS CONTROL.
What is the test for domicile?
Presence in a particular parish + intent to have that parish as habitual residence.
What law determines domicile?
The comivile of a person is determined in accordance with the law of this state.
What are the requirements to change domicile?
Must meet both prongs of the domicile test; the act of residing in another parish PLUS the intent to make that new location his habitual residence.
How does one prove intent to change domicile?
Depends on the circumstances. Sworn declaration may be considered as evidence of intent.
Who bears the burden of presumption on changing domicile?
Must overcome legal presumption that domicile has not changed; must prove as matter of fact plus requisite intent.
Is domicile forfeited upon moving away temporarily?
No, unless person demonstrates contrary intent.
Do spouses necessarily have a common domicile?
Spouses may have either a common domicile OR separate domiciles.
What is the domicile of an unempancipated minor?
Domicile of the parent or parents which whom the minor usually resides. If parents are living together, domicile of parents. If situation of legal authority or tutorship, domicile with tutor/legal authority.
What is the domicile of persons under continued or permanent tutorship?
Domicile of his tutor
What is the domicile of an interdict?
Interdicts have the domicile of their curator; limited interdicts retain their domicile.
Why is domicile important?
The parish where an action may properly be brought depends on the domicile of the parties.
What does domicile give to subject matter jurisdiction?
Domicile gives Louisiana courts subject matter jurisdiction over certain actions.
What are the domicile requirements for divorce?
To annul a marriage or obtain a divorce, one or both of the parties must be domiciled in the state.
When is there a rebuttable presumption that a spouse has a domicile in this state?
If the spouse has established and maintained a residence in the parish for six months.
What is the importance of domicile for community property regime?
Domicile establishes the rules for classifying property; also establishes the rules for partitioning property after termination of a community of acquests/gains when one or both spouses are domiciled in Louisiana.
What is marriage?
Marriage is a legal relationship between a man and a woman created by civil contract. Many rules regarding marriage cannot be altered by contract.
What are the requisites for a valid marriage?
- Absence of legal impediments (exisitng, same sex, incest); 2. Marriage ceremony; 3. Mutual consent of both parties expressed at the ceremony.
What constitutes incest?
Direct line relatives; collaterals within the fourth degree unless married prior to 1993 and over 55 years old. Adopted relatives are treated like blood relatives for the purposes of incest. However, no impediment exists if people are related by marriage.
What are the requirements for a marriage ceremony?
- Qualified celebrant, or parties reasonably believe he is qualified (3rd party); 2. Both parties attend the ceremony; 3. Other ceremonial formalities (marriage license; two witnesses over 18; signed certificate by parites, witness, and celebrant; summary of applicable laws).
How many hours before the marriage ceremony must the license be issued?
72 hours.
What constitutes mutual consent during the marriage ceremony?
- No duress (vice of consent) Duress occurs from violence or threat of violence; threats of criminal prosecution. 2. No mental impediment (insanity, drunkenness, mental retardation)
At what ages are parental or judicial consent required to marry?
- Minors have no capacity to marry without approval of both parents; (2) Minors under 16 MUST have juvenile court authority to marry.
What is a covenant marriage?
- Must receive special counseling; 2. Declare their intent to contract a covenant marriage on their application; 3. Execute a notarized declaration of inent to contract a covenant marriage. (can convert already married into covenant marriage) People in covenant marriage must commit to take all reasonable efforts to preserve the marriage, including marital counseling.
How can one end a covenant marriage?
- Divoce (only after counseling, AND only after one of the following grounds exists–adultyery; felony and sentenced to death; one spouse has abaonded the matrimonial domicile and refuses to return; physical or sexual abuse of the spouse or child seeking a divorce; spouses has been living apart for two years; spouses have been living apart for one year–judgment of separation + childless; spouses ahve been living apart for 1.5 years with child.
Does judgment of separation apply to non-covenant marriages?
No.
How can covenant spouses become legally separated?
- Through a judgment of separation, only after counseling and onlyafter [all grounds available for divorce] plus the other spouse is habitually intemperate or engages in other excesses, cruel treatment or other outrageous conduct.
Can a covenant marriage by rescinded by agreement?
No.
Do covenant spouses have to comply with all marriage provisions for non-covenant marriages?
Yes.
What circumstances make a marriage a relative nullity?
- A marriage lacking consent (must be raised by nonconsenting party, unless nonconsenting party later confirmed the marriage, e.g., living together).
What are the effects of declaring a marriage a relative nullity?
- A relatively null marriage is valid until officially declared null by the court. 2. A relatively null marriage produces civil effect until it is officially declared null.
When is a marriage an absolute nullity?
- Impediment (incest, etc.); 2. No ceremony.
What are the effects of declaring a marriage an absolute nullity?
- Null ab initio–null from the moment of its inception. Party can remarry withou a judicial declaration of nullity. 2. Putative marriage doctrine–civil effects can flow to the blindsided party.
When does the putative marriage doctrine apply?
- Absolutely null marriage + at least one of the spouses was in good faith.
What is good faith for the purposes of the putative marriage doctrine?
- Honest and reasonable belief that there exists no legal impediment to the marriage. A. Factual and legal errors are taken into account; B. Presumption of good faither on part of the party making a putative marriage claim is presumed; C. First-hand actual knowledge of impediment vitiates good faith, second-hand knowledge imposes duty to inquire; D. Only in truly exceptional circumstances can a spouse have good faith without a marriage ceremony.
What are the civil effects of a putative marriagE?
Civil effects are the same except with regard to community property; putative spouse is eligible for spousal support; children are legitimate; good faith spouse can recover marital portion; good faith spouse can sue for wrongful death of putative spouse.
What are the effect of a putative marriage on property that would have been community property?
- One spouse in bad faith–his half of the community goes to first wife; other half to putative spouse. 2. Both spouses in good faith–husband heir’s acquire his half of the community, while first spouse and putative spouse share the remaining half.
What are the duration of civil effects of a putative marriage?
Civil effects continue as long as the spouse remains in good faith. BIGAMY EXCEPTION: civil effects continue after nonbigamous “spouse” learns of impediment unitl either (1) declaration of nullity; or (2) remarriage of innocent spouse.
Does putative marriage produce civil effects for the childrem?
Yes.
Putative effects for same-sex couples?
No.
What are provisional and incidental proceedings in actions of nullity?
- Generally can receive the incidental relief afforded in a proceeding for divorce; 2. Interim relief pending the nullity action such as interim spousal support; 3. Pemanent relief intended to continue past the effective date of the judgment of nullity is generally only available to parties to relatively null marriage; or parties to absolutely null marriage entitled to civil effects as putative spouses.
What are mutual duties in marriage?
- Fidelity (sex and do not engage in adultery); Support; Assistance.
Can spouses sue on duties during marriage?
Generally no, these duties are generally only relevant in the context of separation.
Does marriage change your surname?
No; can use the surname if you wish but marriage does not change either spouse’s surname.
What are conflict of laws regarding marriage?
- If marriage is valided in state of contract will be recognized in LA unless it violates public policy; 2. Same-sex marriages are not recognized in Louisiana for any purpose.
How does marriage terminate?
Death; judicial declaration of nullity; authorization to remarry; divorce.
How many types of divorce are there?
- No-fault divorce (separation after service); 2. No-fault diveroce (separation before service); 3. Fault-based divorce (immediate adultery); 4. Fault-based divorce (immediate felony conviction)
What are steps for no-fault divorces; separation after service? Article 102 Divorce?
- Parties need to have lived apart continuously for either 180 or 265 days after serivce of petition or written waiver of service. 180 days: separate and apart continuously if there are no minor children of the marriage. Can only slip into 180 day time period with minor children of the marriage if the court finds that spouse physically or sexually abused the other spouse or child/injunction in place. 365 days: separate and continusouly apart if there are minor children of the marriage.
What is the procedure for no-fault divorce?
- Petition verified by affidavit; 2. Either party may file rule to show cause to set for hearing–rule to show cause must allege service; allege time period since service; allege separation time period; by verified by the affidavit of the mover.
What is the required evidence for hearing on rule?
- Petition for divorce; 2. Return on serviee of petition (sheriff’s return/personal service/return receipt/written waiver); 3. Rule to show cause and verifying affidavit; 4. Return of personal serive of the rule or “written waiver” of service; 5. Affidavit of mover, executed after filing of the rule, swearing that time period has been met (separate from affidavit filed with the rule to show cause).
When is a petition for divorce deemed abandoned?
- If a rule to show cause is not filed within two years of service of original petition.
Are SJ or JOTP applicable to no-fault divorce proceedings?
No.
What must accompany a dismissal of an article 102 petition?
Must be filed by way of a joint motion or a contradictory motion filed by the plaintiff.
What are the steps for a no-fault divorce–separation prior to filing petition?
- Live separate and apart for 180/365 days BEFORE petition is filed; physical separation must be voluntary on part of at least one party.
What is the procedure for a no-fault divorce if the separation is prior to filing petition? Article 103(1) divorce?
- File petition; answer required within 15 days; no affidavits are required.
What are the requirements for immediate adultery divorce? Article 103(2) divorce?
- Adultery must be proved at trial by corroborated testimony, admission of adulterous spouse alone not sufficient. Proof must be specific, finding of sexual intercourse is not necessary. 2. On finding of adultery, the divorce is immediate.
What are the requirements for immedicate felony-conviction divorce? Artile 103(3) divorce?
Spouse must be convicted of a felony and must be sentenced to death or imprisonment at hard labor.
What are the procedural defenses to divorce actions?
- Requirements of Article 3951 have not been met.
Does reconciliation extinguish a divorce action?
Yes. 1. Resumption of life together; 2. Isolated sex acts during separation may not be reconciliation need intent to resume life together; 3. Element of forgiveness after knowledge of offense may constitute reconciliation.
Is mental condition of at-fault spouse a defense?
Yes; if mental illness caused an adulterous relationship, it may be a defense.
What are actions incidental to divorce that can be resolved in the same proceeding?
- Children–custody/vistiation/child support can be resolved in the same proceeding; 2. Spousal support; 3. Use of property.
What use of proeprty can be determined at the divorce proceedings?
- Community or separate matrimonial domicile: 1. Physical child custodian can seek the use and occupancy of the matrionial domicile whether separate or community–spouse must have custody of the children–pertinent consideration is the best interest of the family. Custodial parent can use separate reisdence until partition of the community or until 180 days following termination of the marriage; can use community property until further order of the court. 2. Other Community Immovables or Movables: 1. Court can award spouse the use of community immovables in line with the best interest of the family. Use of personal property is limited to other items deemed necessary for safety/well-being.
What are conflicts of laws regarding divorce?
- Louisiana courts may grant a divorce only under Louisiana law.
What is the Domestic Abuse Assitance Act?
- Civil remedy for domestic violence affording the victim immediate protection; 2. Specific and mandatory requirements govern content of petition; 3. Provides for issuance of ex parte TRO granting, among other things, relief from ahrassment/temporary custody of minor children; 4. Contradictory hearing required in twenty-one days. Plaintiff must prove allegations of abuse by a preponderance of the evidence.
When is spousal support awarded?
In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage.
When does the obligation of spousal support end?
- Remarriage of obligee; death of either party; cohabitation.
When is interim spousal support awarded?
- One spouse has a need; 2. Other spouse has the means to pay; 3. Based on the standard of living the parties enjoyed during the marriage. Intended to termiante at the judgment of divorce.
What is the role of fault with respect to interim spousal support?
Fault is irrelevant; evan a party who is at fault can receive interim spousal support.
Who has the burden of proof with respect to interim spousal support?
- Spouse seeking interim spousal support bears the burden of proving entitlement.
What are considerations when determining spousal support?
- Look at pre-sep circumstances to determine who is the claimant; who is the payor? Typically, the primary income-earner is the payor. Court considers the claimant’s/payor’s needs to maintain standard of living parties enjoyed while living together.
What does the Court consider the Claimant’s income and needs?
- Claimant spouse’s income is the primary consdieration–generally do not require claimant to deplete her assets to live. Earning capacity of the claimant is generally not considered when determining interim support. Courts that don’t consider earning capacity focus on spouse’s staus at the time of separation; courts that do consider earning capacity fosu on the ability of the spouse to immediately secure employment and enter workforce.
How does the court consider the payor’s means?
- The payor’s means are calculated after considering the payor’s entire financial condition–courts will consider both income and assets; and earning capacity of the payor.
How much discretion does the trial court have when determing how much interim spousal support is appropriate?
- Tremendous discretion–court may award interim spousal allowance; appellate courts will overturn an award only for abuse of discretion.
*What is the duration of an award of interim spousal support?
- Terminates upon the rendition of a judgment of divorce–unless if there is a pending claim for final spousal support when divorce is rendered, ISS wil terminate at earlier of judgment awarding/denying final support or 180 days from the renditionof the judgment of divorce.
When can ISS be modified?
Periodic support may be modified if the circumstances of either party materially changes and shall be terminated it if has become unnecessary. Remarriage of the obligor spouse is not a change of circumstance.
Can you waive ISS in a prenup?
No, against public policy and is therefore invalid.
What is the standard for final spousal support?
A court may award final periodic support to a party free from fauly prior to the filing of a proceeding to terminate the marriage–the award must be based on the needs of the claimant and the ability of the party to pay.
What are the needs of claimant for FSS?
- Inability of claimant to meet his necessary expenses–courts consider standard of living; do not limit recovery to things required for basic survival.
What constitutes ability of the party to pay for FSS?
The entire financial picture of the payor spouse is considered.
**What are considerations for awarding FSS?
- Income and means of parties; financial obligations of the parties; earning capacity of the parties; child custody arrangements; rehabilitation; age and health of the parties; duration of the marriage–degree to which spouse relied on other; tax consequences.
What kind of fault must claimant show to obtain FSS?
- Freedom from pre-petition fault that led to breakup of marriage. Misconduct must be of serious nature and an independent proximate cause of the separation. Following factors constitute fault for the purposes of FSS: adultery; conviction of a felony and sentence to hard labor or death; intemperance or cruelty (series of acts); abandonment–abandoned spouse must have sought other spouse’s return, can also read constructive abandonment. Reconciliation or nonblameworth conduct shows no legal fault.
What are other fault grounds to forcelose award of FSS?
Defamation; attempted murder; fugitive; nonsupport; spouse’s failure to live up to his or her mutual duties of fidelity, support and assistance should constitute fault sufficient to preclude final support.
Does provoking spouse constitute legal fault for purposes of FSS?
No, not if spouse provokes the other’s anger/indignation/resenement or leaving, e.g. A finds out B is cheating and then A burns her clothes.
What are defenses to claim of fault?
Condonation; conduct caused by mental illness; mental incapacity or physical infirmity; and reconciliation (pre-reconciliation fault does not bar final spousal support)
Are there any monetary limitations on FSS?
Amount of final periodic support shall not exceed one-third of the obligor’s net income.
How are support awards enforced?
Courts use income-assignment orders to enforce spousal support and child support awards.
How are attorneys’ fees for FSS collected?
Prevailing party receives attorneys’ fees–these arrearages are subject to five-year liberative prescription.
What are the grounds for modification/termination of the FSS?
FSS may be modified if the circumstances of either party materially change and shall be terminated if it becomes unnecessary. The subsequent remarriage of the obligor spouse shall constitue a change of circumstance.
What is the procedure to modify, waive or terminate a FSS?
- Judgment by a court of competent jurisdiction, party seeking modification must prove a material change in circumstances of either party; 2. Juridical act–authentic act (notary + two witnesses) or act under private signature duly acknowledged by the obligee. Also, prenuptial waivers forbidding payment of FSS are allowed, as compared to ISS. However, courts unlikely to uphold agreement requiring FSS as a condition of a prenuptial agreement.
Can party challenge FSS on the grounds that divorce occurred in other state?
No, cannot deny on grounds that one spouse obtained a valid divorce from the other spouse in a court of another state/country which had not jurisdiction over the person of the claimant spouse.
What is the time period for seeking spousal support?
Right to claim spousal support after divorce is subject to a peremption of three years. Peremption begins to run from the latest of the following events: 1. Day the judgment of divorce is signed; 2. Judgment terminating a previous award is signed; 3. Last payment of a voluntary payment of spousal support.
What are contributions to earning capacity of spouse?
Applies when: 1. Spouse/former spouse made financial contributions to other’s training or eduction during marriage that increased other spouse’s earning power; 2. Claimant did not benefit during marriage. Remember: this is a separate claim. Not CP or spousal support award.
When does claim for contributions to earning capacity arise?
Claim arises when divorce action is filed and prescribes three years after date of the signing of the judgment of divorce.
What is the characterization of contribution to earning capacity of spouse?
Neither a spousal support nor a community property award; may be in addition to them.
How do courts calculate the contribution to earning capacity award?
- “De la Rosa” award. Half of the earning spouse’s income that was used for joint living expenses minus half of the student spouse’s income uses for joint living expenses, plus costs of direct educational expenses.
Is contribution for earning capacity a personal right?
Yes. Pending action abates when either spouse dies. However, an award reduced to judgment becomes a debt against the estate.
What is the touchstone of custody orders?
Custody orders are always modifiable and are always based on the best interest of the child.
What are the factors bearing on the child’s best interest?
(Weight afforded each factor in the discretion of the court); Factors relevant in actions to change/initially fix custody. 1. Emotional ties; 2. Ability to nurture; 3. Ability to provide; 4. Prior relationship; 5. Stability; 6. Moral fitness; 7. Health; 8. History; 9. Preference of Child; 10. Cooperation with Other Party; 11. Location; 12. Past caregiver.
Does the best interest rule also apply to actions to change custody?
Yes, same factors apple in actions to change custody.
What is a Bergeron considered decree?
If a custody decision is rendered as a considered decree, there is an additional requirement to change custody. The proponent of the change must show that a change in circumstances has occurred such that the continuation of the present custody arrangement is deleterious to the child as to justify a modification of the custody decree, or thar harm from change in environment is likely to be substantially outweighed by its advantages to the child.
What factors need to be taken into account for change of custody when it is a consent custody judgment?
A party seeking modificaion of a consent decree need prove only (1) material change in circumstances; and (2) proposed modification is in the best interest of the child.
What is the order of custody preferences?
- In accordance with agreement of parents; 2. Parental Custody; 3. Non-parent custodian.
What are the factors for custody when in accordance with agreement of parents?
- Still must be in child’s best interest; afgreement will not be implemented if not in the child’s best interests.
What are the factors for awarding parental custody if no agreement?
In the absence of agreement, custody is awarded to the parents jointly, or if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award sole custody to that parent alone.
