LA BAR EXAM CODE I: COMMUNITY PROPERTY - MULTIPLE CHOICE SHUFFLE Flashcards
One week before their marriage, Cindy and Pat entered into a premarital agreement. The agreement provided that each of the parties’ earnings during the marriage would remain their separate property, and that neither party would make a claim for any form of spousal or child support in the event of a divorce. It also provided that, if the couple had any children, they would have joint custody in the event of a divorce.
Two years later, Cindy and Pat had a son, John. Cindy filed for divorce when John was three years old. She requested interim and final spousal support, child sup-port, sole custody of John, and half of the amount Pat saved during their three-year marriage. Cindy has not worked for five years.
Pat will be able to assert the premarital agreement as a defense to Cindy’s claims for:
(a) final spousal support.
(b) interim and final spousal support, child support, child custody, and earnings.
(c) final spousal support, child support, child custody, and earnings.
(d) final spousal support and earnings.
(e) Pat will not be able to use the premarital agreement as a defense to Cindy’s claims.
(d)
Before marriage, spouses can enter into a matrimonial agreement as to all matters that are not prohibited by public policy. [La. Civ. Code art. 2329] Spouses are free to enter into a regime of separation of property and are free to waive final periodic support. [La. Civ. Code art. 116] Answers (b) and (c) are incorrect because agreements of child custody are always subject to modification and child support is based on the needs of the child as they exist after divorce; therefore, neither can be waived in a premarital agreement.
Additionally, Louisiana courts have rejected attempts to waive interim spousal support because it arises from the obligation spouses owe each other during marriage. Therefore, any waiver is unenforceable as against public policy. [Holliday V. Holliday, 358 So. 2d 618 (La. 1978); Hall v. Hall, 4 So. 3d 254 (La. App. 5 Cir. 2009)]
When it comes to grandparent visitation:
(a) The judge’s determination overrides a fit parent’s decision to disallow grandparent visitation.
(b) A parent’s determination as to the appropriateness of grandparent visitation is given very little weight.
(c) When a fit parent is opposed to the requested visitation, the parent’s due process rights in the care, custody, and control of her child take precedence.
(d) The best interest of the child standard is always controlling.
(c)
The Supreme Court has held that a fit parent’s determination as to the appropriateness of third- party (e.g., grandparent) visitation must be given “special weight.” In situations where a fit parent is opposed to the requested visitation, the parent’s due process rights in the care, custody, and control of her child take precedence over the best interest of the child standard. A judge may not override a fit parent’s decision regarding third-party visitation merely because he feels a “better” decision could be made or visitation would be in the best interest of the child.
Jorinda and Rob married in 1990 and had two children. In 2005, Jorinda was diagnosed with a progressive muscle disorder that ultimately rendered her wheelchair bound. By 2009, she was in a vegetative state, and Rob and the children had done everything they could for her. Jorinda was interdicted and was moved to a 24-hour care facility. Rob moved on with his life and started dating Cathy. In 2012, Rob and Cathy married in Las Vegas while celebrating his 40th birthday. They sought a marriage license under the laws of Nevada and received a marriage certificate there. Upon returning, Rob’s children began to question whether his marriage to Cathy was valid.
Which of the following is correct?
(a) Rob and Cathy are in an absolutely null marriage because Rob was still married to Jorinda when he married Cathy.
(b) Rob and Cathy are in an absolutely null marriage because Rob and Cathy did not obtain a marriage license in the State of Louisiana.
(c) Rob and Cathy’s marriage is valid because the law permits the spouse of an interdict to remarry two years after a judgment of interdiction without obtaining a divorce.
(d) Rob and Cathy are in a relatively null marriage because Rob was still married to Jorinda when he married Cathy.
(e) Rob and Cathy are in a relatively null marriage because Rob and Cathy did not obtain a marriage license in the State of Louisiana.
(a)
A marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. [La. Civ. Code art. 94] An impediment to marriage in Louisiana is a prior undissolved marriage. [La. Civ. Code art. 881 (a) is the correct answer because Rob never divorced Jorinda and was still married to her when he married Cathy in Nevada. Answer (b) is incorrect because parties can validly marry out of state without obtaining a marriage license in Louisiana. Answer (c) is incorrect because there is no such exception in Louisiana. Answers (d) and (e) are incorrect because a marriage is relatively null when one of the parties lacks consent, which is not present here.
Joseph and Nancy want to get married. Joseph is 19 and Nancy is 17. Although Nancy’s parents agree to the marriage, Nancy and her entire family are currently living in Hawaii and Joseph is in Louisiana. Joseph is afraid that Nancy will fall for someone else and insists that they marry immediately. Joseph gets a local Louisiana justice of the peace to perform the marriage ceremony because Nancy’s parents have provided their written consent and Nancy’s best friend Molly has agreed to stand as substitute for Nancy in the ceremony.
The marriage between Joseph and Nancy is:
(a) Valid.
(b) Invalid, because a justice of the peace cannot perform a marriage in Louisiana.
(c)Invalid, because Joseph is more than one year older than Nancy.
(d) Invalid, because Louisiana does not recognize marriage by procuration.
(d)
Louisiana law provides that parties to a marriage must declare that they take each other as spouses in the presence of a third person who is qualified or reasonably believed by the parties to be qualified to perform the ceremony. A marriage may not be contracted by procuration (that is, a marriage where a prospective spouse appoints a representative as a substitute in the ceremony). Thus that is one reason why the marriage is invalid and answer choice (a) is incorrect. (In addition, minors age 16 or 17 must have judicial authorization to marry.) Answer choice (b) is incorrect because a justice of the peace is qualified to perform a marriage ceremony in Louisiana. (c) is incorrect. In Louisiana, minors ages 16 or 17 with judicial authorization and written parental consent may marry, but if the 16- or 17-year-old is married to a major who is three years or more older than the minor, parental and judicial consent will not cure the impediment to marriage. Joseph’s age is not the deciding factor here.
Jarvis and Susanna were married in 1979. Because Susanna always had dreamed of having a story-book wedding, they were married at Houmas House Plantation and Gardens in Darrow, Louisiana. The couple lived in Bay St. Louis, Mississippi, for the entire duration of their marriage. In 1997, Susanna could no longer stand Jarvis disgusting lack of personal hygiene and moved to Lancaster, Pennsylvania, to live among the Amish. In January of 1999, Jarvis moved to a new house in Gonzales, Louisiana. Later that year, in September, he resigned himself to the fact that Susanna was not coming back and filed for divorce in the Twenty-Third Judicial District Court of Louisiana, on the grounds of living separate and apart. They had no children, but Susanna had worked for seven years while Jarvis finished his education. Susanna had also taken care of the marital home which allowed Jarvis to start his own business.
Jarvis can file for divorce in Louisiana because:
(a) He resides in Louisiana.
(b) He is domiciled in Louisiana.
(c) He was married in Louisiana.
(d) Louisiana may not hear this action.
(b)
A divorce action can be heard in a Louisiana court because Jarvis was domiciled in the state. Thus, (b) is the correct answer. If only one of the spouses is domiciled in Louisiana, the divorce action can be filed there. If a spouse has established and maintained a residence in a parish in Louisiana for at least six months, there is a rebuttable presumption that he has a domicile in that parish. The facts indicate that Jarvis moved to Gonzales, Louisiana in January of 1999 and filed the divorce action against Susanna in September of 1999. (a) is incorrect because residence alone will not establish jurisdiction, and (c) is incorrect because marriage in the state alone will not confer jurisdiction in a Louisiana court either.
Jarvis and Susanna were married in 1979. Because Susanna always had dreamed of having a story-book wedding, they were married at Houmas House Plantation and Gardens in Darrow, Louisiana. The couple lived in Bay St. Louis, Mississippi, for the entire duration of their marriage. In 1997, Susanna could no longer stand Jarvis disgusting lack of personal hygiene and moved to Lancaster, Pennsylvania, to live among the Amish. In January of 1999, Jarvis moved to a new house in Gonzales, Louisiana. Later that year, in September, he resigned himself to the fact that Susanna was not coming back and filed for divorce in the Twenty-Third Judicial District Court of Louisiana, on the grounds of living separate and apart. They had no children, but Susanna had worked for seven years while Jarvis finished his education. Susanna had also taken care of the marital home which allowed Jarvis to start his own business.
The divorce decree was issued in August 2001. The court awarded Susanna the marital home and $700 per month permanent spousal support. In March 2002, Susanna began seeing Simon. Because Susanna was very lonely, Simon moved into Susanna’s home. In August 2002, Jarvis filed a petition to terminate his spousal support obligation to Susanna, arguing that she was living with Simon and she had essentially “remarried.”
The court should rule:
(a) To terminate Jarvis’ support obligation because Susanna has cohabited with Simon as though they are married.
(b) That Jarvis will only have to pay $350 a month because Susanna is living with Simon.
(c) That Jarvis must continue to nav $700 if the court finds that he has the ability to pay that amount.
(d) Jarvis support obligation cannot be terminated because Susanna has merely cohabited with Simon.
(a)
Support payments may be awarded based on the needs of the party requesting it and the ability of the other party to pay. A support award terminates upon death of either party, marriage by the recipient, or a judicial determination that the recipient has cohabited with another person in the manner of married persons. Jarvis would have to petition the court to terminate the support payments.
Jarvis and Susanna were married in 1979. Because Susanna always had dreamed of having a story-book wedding, they were married at Houmas House Plantation and Gardens in Darrow, Louisiana. The couple lived in Bay St. Louis, Mississippi, for the entire duration of their marriage. In 1997, Susanna could no longer stand Jarvis disgusting lack of personal hygiene and moved to Lancaster, Pennsylvania, to live among the Amish. In January of 1999, Jarvis moved to a new house in Gonzales, Louisiana. Later that year, in September, he resigned himself to the fact that Susanna was not coming back and filed for divorce in the Twenty-Third Judicial District Court of Louisiana, on the grounds of living separate and apart. They had no children, but Susanna had worked for seven years while Jarvis finished his education. Susanna had also taken care of the marital home which allowed Jarvis to start his own business.
Assume for the purposes of this question that Jarvis stopped paying support to Susanna.
The prescriptive period on a claim to enforce payment of the arrears is:
(a) Three years.
(b) Five years.
(c) Ten years.
(d) None of the above.
(b)
Under the Louisiana Code of Civil Procedure, there is a five-year prescriptive period to make executory past due spousal support payments.
Jarvis and Susanna were married in 1979. Because Susanna always had dreamed of having a story-book wedding, they were married at Houmas House Plantation and Gardens in Darrow, Louisiana. The couple lived in Bay St. Louis, Mississippi, for the entire duration of their marriage. In 1997, Susanna could no longer stand Jarvis disgusting lack of personal hygiene and moved to Lancaster, Pennsylvania, to live among the Amish. In January of 1999, Jarvis moved to a new house in Gonzales, Louisiana. Later that year, in September, he resigned himself to the fact that Susanna was not coming back and filed for divorce in the Twenty-Third Judicial District Court of Louisiana, on the grounds of living separate and apart. They had no children, but Susanna had worked for seven years while Jarvis finished his education. Susanna had also taken care of the marital home which allowed Jarvis to start his own business.
Which of the following is community property?
(a) 100 shares of General Cinema stock left to Susanna by her mother’s will
(b) Jarvis’ Ph.D. from Tulane University.
(c) The dividends from the 100 shares of General Cinema stock left to Susanna by her mother’s will put into a bank account held jointly by Susanna and Jarvis.
(d) Susanna’s engagement ring.
(c)
Community property is acquired during the existence of the marriage through the effort, skill, or industry of either spouse, property acquired with community things or with community and separate things unless classified as separate, property donated to the spouses jointly, 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 by law as separate property. Answer choice (a) is not correct because the stock was donated to Susanna alone at the time of her mother’s death. Answer choice (b) is not considered community property subject to division, and (d) is incorrect because it was acquired by Susanna before the marriage to Jarvis.
Answer choice (c) is the correct answer because fruits of separate property are classified as community property unless the acquiring spouse reserves the fruits in an authentic act or act under private signature duly acknowledged. This declaration must be provided to the other spouse prior to filing of the declaration. We are not told of any declaration of this kind under these facts signed by Susanna, so the fruits of her separate property, the General Cinema shares’ dividends, fall into community property.
Husband and wife enter into the following contract during the existence of the legal regime: they agree that the husband gets ownership of the house (valued at $90,000), wife gets ownership of her pension (valued at $150,000), and all fruits and revenues of their separate assets will be separate.
Which of the following statements is not a legal basis on which to attack the couple’s agreement?
(a) Assuming the couple confects the agreement as an authentic act or as an act under private signature dully authenticated by both spouses, court approval of the agreement is required.
(b) The reservation of the fruits and revenues of a spouse’s separate property as separate requires an authentic act or act under private signature duly acknowl-edged, recordation, and notice to the other spouse.
(c) The agreement might be susceptible to an attack based upon lesion, but more facts are needed to make this determination.
(d) Assuming the couple confects the agreement as an authentic act or as an act under private signature duly authenticated by both spouses, it may be attacked for error, fraud, or duress.
(e) Choices A, B, C, and D are all legal bases on which to attack the couple’s agreement.
(a)
Choice (a) is the correct choice, meaning that choice (a) is not a legal basis on which to attack the couple’s agreement.
Court approval is needed during marriage for a matrimonial agreement that modifies or terminates a matrimonial agreement during marriage unless the couple is opting into the legal regime. [La. Civ. Code art. 2329] A matrimonial agreement is defined in the Code as “a system of principles and rules governing the ownership and management of the property of married persons.” La. Civ. Code art. 23251 The temporal focus of a matrimonial agreement is property to be acquired in the future.
The only part of the couple’s contract that provides principles and rules governing property to be acquired in the future is the provision in which each spouse reserves the fruits and revenues of separate property as separate. Since the Code does not require that this be done in a matrimonial agreement, this provision does not convert the contract into an attempted matrimonial agreement.
The provision partitioning the house and the pension is permissible, as spouses are free to voluntarily partition community property during the existence of the legal regime. [See La. Civ. Code art. 2336]
Choice (b) is a legal basis on which to attack the couple’s agreement. All three of the listed requirements - authentic act, recordation, and notice to the other spouse - are required by the Code. [See La. Civ. Code art. 23391
Choices (c) and (d) are legal bases on which to attack the couple’s agreement. As stated in the explanation of answer choice (a), spouses are free to enter into a voluntary partition during the legal regime. A voluntary partition is a contract, and, like most contracts, it can be attacked for vices of consent, which include error, fraud, and duress. [La. Civ. Code art. 1948] Additionally, an extrajudicial partition (i.e., a voluntary partition such as the one entered into by this couple) may be rescinded for lesion if the value of the part received by a spouse is below three-fourths of the fair market value of the portion he should have received. [La. Civ. Code art. 814]
Choice (e) is not the correct choice, since choice (a) is not a legal basis on which to attack the couple’s agreement.
Acquisitive prescription of a servitude requires:
(a) That the servitude be apparent.
(b) That the possessor of the servitude have oral or written permission from the owner of the estate on which it is exercised.
(c) That the possessor of the servitude be in good faith at commencement of the use.
(d) All of the above.
(e) None of the above.
(a)
Answer choice (b) is not correct because if the true owner gave permission then either: a servitude by title has been created (if permission is in writing and satisfies requirements for creation of servitude or the use is permissive and not adverse (i.e., his use, or possession, is precarious). Answer choice (c) is not correct because we also have 30-year acquisitive prescription for servitudes so good faith is not always required.
Al owned two adjoining parcels of land. In 1971, Al sold the western parcel to Ben by a duly recorded Act of Sale that contained the following clause: “Grantee promises for himself, his heirs, successors, and assigns, not to erect a structure over two stories on the land.” In 1972, Ben built a two-story house on the western parcel and lived there for 30 years. In 2002 Ben sold the western parcel to Darla by an Act of Sale that did not contain the structure height restriction. In 2005 Darla tore down the existing house on the western parcel and erected a three-story house. Ed, who purchased the eastern parcel from Al in 2006 by an Act of Sale that did not mention the structure height restriction, recently learned of the structure height restriction clause in Al’s Act of Sale to Ben. Ed has sued Darla to enforce the restriction.
Who will prevail?
(a) Darla, because Ben’s Act of Sale to Darla did not contain the structure height restriction clause.
(b) Darla, because neither Al nor Ed brought suit within two years from Darla’s noticeable violation of the structure height restriction.
(c) Darla, because Al’s Act of Sale to Ed did not contain the structure height restriction clause so Ed has no right of action to enforce the clause.
(d) Darla, because she had no notice of the structure height restriction clause in the Act of sale from Al to Ben.
(e) None of the above choices is accurate.
(e)
Preliminarily, the clause contained in the deed from Al to Ben created a predial servitude. The servient estate is the western parcel (sold to Ben), and the dominant estate is the eastern parcel (sold to Ed). It is a negative servitude. [See La. Civ. Code art. 706] Though the clause never used the terms “servitude,” “dominant estate,” or “servient estate,” there are rules of interpretation that allow such a provision to nonetheless create a servitude. [See La. Civ. Code art. 732] One factor here is that Ben promised “for himself, his heirs, successors, and assigns,” evidencing the party’s intention to create a real obligation (i.e., servitude on the western parcel, which is the servient estate. The clause does not identify a dominant estate, but the servitude is nonetheless a predial servitude since “the right granted be of a nature to confer an advantage on an estate.” [See La. Civ. Code art. 733] Being able to control the height of a structure on the western parcel is of greater advantage to the owner of the retained eastern parcel than it would be to Al himself. Hence, the clause created a predial servitude with the eastern parcel as the dominant estate and the western parcel as the servient estate. Because the Al to Ben deed was properly recorded, it is binding on all future owners of both parcels.
Answer choices (a) and (c) are incorrect for the same reason. Since Al’s sale to Ben was properly recorded, the duty is imposed upon Darla’s land (western parcel - servient estate), and the benefit is conferred to Ed’s land (eastern parcel - dominant estate).
Choice (b) is incorrect because the two-year liberative prescription for a noticeable violation of a restriction applies only to building restrictions, which this clause did not create.
[See La. Civ. Code arts. 775 and 7811
Choice (d) is incorrect. Louisiana has a pure race public records doctrine. Moreover, as stated in the analysis of answer choices (a) and (c), recordation of the Al to Ben sale had the effect of making the servitude effective against third persons, regardless of their actual knowledge.
Hence, the correct choice is (e). Ed will win. Prescription of non-use commenced in 2005, when Darla violated the servitude. [See La. Civ. Code arts. 753 and 754] So long as Ed brings a suit against Darla before 2015 he will prevail.
Norma Jean died in 2004, survived by her sister Kim and her brother Robert. Norma Jean’s will bequeathed her entire estate to Robert subject to a usufruct in favor of Kim. Norma owned the following property at her death: a residence in Jefferson Parish (123 Sena Drive) (valued at $250,000 at her death), a car (2002 Toyota Camry) (valued at $10,000 at her death), and 100 acres of farmland in Tangipahoa Parish. Kim died on March 31, 2013. Each of the following questions adds additional facts.
123 Sena Drive - In 2007 Kim did the following to the residence at 123 Sena Drive: spent $4,000 to replace the old carpet with new wooden floors, and spent $1,000 for a replacement air conditioning compressor. What rights and duties arise from these particular facts?
(a) Kim’s estate must reimburse Robert $5,000 resulting from both of Kim’s expenditures.
(b) Robert must reimburse Kim’s estate $5,000 resulting from both of Kim’s expenditures.
(c) Robert must reimburse Kim’s estate $1,000 resulting from Kim’s expenditure of $1,000 to replace the air conditioning compressor.
(d) Kim’s estate must reimburse Robert $4,000 resulting from Kim’s expenditure of $4,000 to replace the carpet with wooden floors.
(e) No rights and duties arise from these facts.
(e)
As usufructuary, Kim is “responsible for ordinary maintenance and repairs for keeping the property subject to the usufruct in good order, whether the need for these repairs arises from accident or force majeure, the normal use of things, or his fault or neglect.” [See La. Civ. Code art. 577] Since the carpet was old and no longer keeping the property in good order, Kim had the duty to replace it. Since the air compressor broke, she had the duty to replace it. Kim’s estate owes nothing to Robert. Kim’s estate would owe reimbursement to Robert only if replacing the carpet with wooden floors could be considered a breach of her duty to “preserve the substance of the residence” or of her duty to obtain Robert’s consent before making “improvements and alterations on the property.” [See La. Civ. Code arts. 539 and 558] Replacing old carpet with new wood floors seems most appropriately to be considered ordinary maintenance and repair.
Regarding the air conditioning compressor, Robert would have the duty to reimburse Kim’s estate for the $1,000 she expended only if it were considered an extraordinary repair that did not result from Kim’s fault or neglect. [See La. Civ. Code art. 577] Here, however, it is not likely that this would be considered an extraordinary repair, since that term is limited to expenditures “for the reconstruction of the whole or of a substantial part of the property subject to the usufruct.” [La. Civ. Code art. 578] Hence, neither Kim’s estate nor Robert owes any amount to the other.
Norma Jean died in 2004, survived by her sister Kim and her brother Robert. Norma Jean’s will bequeathed her entire estate to Robert subject to a usufruct in favor of Kim. Norma owned the following property at her death: a residence in Jefferson Parish (123 Sena Drive) (valued at $250,000 at her death), a car (2002 Toyota Camry) (valued at $10,000 at her death), and 100 acres of farmland in Tangipahoa Parish. Kim died on March 31, 2013. Each of the following questions adds additional facts.
The Camry - In 2006 Kim learns that the Camry needs a new engine. She chooses not to replace the engine, and instead trades the car in to the Toyota dealership and buys a 2007 Toyota Avalon, the price of which is $28,000. The dealer assigns a trade-in value of $7,000 to the Camry.
Which of the following statements best describes the rights and duties that result from these facts?
(a) Kim’s estate owes Robert $10,000 because she had no power to dispose of the 2002 Camry since it is a nonconsumable.
(b) Kim’s estate must turn the 2007 Tovota Avalon over to Robert.
(c) Kim’s estate owes Robert the fair market value of the 2002 Camry as of the date the usufruct terminated.
(d) Kim’s estate owes Robert $7,000.
(e) No rights and duties arise from these facts.
(d)
Answer choice (d) describes the most likely rights and duties created by these facts.
(a) is not correct. Although ordinarily a usufructuary has no right to dispose of nonconsumables, there is an exception for “corporeal movables that are gradually and substantially impaired by use, wear, or decay, such as equipment, appliances, and vehicles, provided that [the usufructuary] acts as a prudent administrator.” [La. Civ. Code art. 568] Given that the car needed a new engine, which would be considered an extraordinary repair for which Robert would ultimately be responsible, it seems prudent for Kim to get rid of the car.
(b) is probably not correct, though I “waffle” here because the language of the 2010 amendments to usufruct is not totally clear on this point. The Code states: “If a thing subject to the usufruct is otherwise alienated by the usufructuary, the usufruct attaches to any money or other property received by the usufructuary.” [La. Civ. Code art. 568.1] If the “trade-in” is viewed as an exchange, then choice (b) would be correct. However, given that the Avalon is worth four times more than the Camry, it would be absurd to require Kim’s estate to hand the Avalon over to Robert. It makes more sense to view the “trade-in” as a sale, which makes answer choice (b) incorrect (and makes choice (d) correct).
Choice (c) is not correct. If a nonconsumable has been lost or deteriorated through the fault of the usufructuary, the Code does require a usufructuary to pay the naked owner the value the property would have had at termination. La. Civ. Code art. 6281 Here, however, Kim had the right to dispose of the Camry, so article 628 does not apply. (dis the best choice. As explained earlier in the context of choice (b), the ambiguity in article militates in favor of considering the “trade-in” as a sale of the Camry for $7,000.
Hence, through real subrogation the usufruct attaches to the money, a consumable. At the termination of the usufruct, Kim’s estate must reimburse Robert $7,000
Norma Jean died in 2004, survived by her sister Kim and her brother Robert. Norma Jean’s will bequeathed her entire estate to Robert subject to a usufruct in favor of Kim. Norma owned the following property at her death: a residence in Jefferson Parish (123 Sena Drive) (valued at $250,000 at her death), a car (2002 Toyota Camry) (valued at $10,000 at her death), and 100 acres of farmland in Tangipahoa Parish. Kim died on March 31, 2013. Each of the following questions adds additional facts.
The Farmland - On January 1, 2010, Kim leased the farmland to Barney for a five-year term at an annual rental of $2,400, due on the last calendar day of the year. Barney paid the 2010, 2011, and 2012 rentals to Kim. Which of the following statements is not accurate?
(a) Kim’s estate owes no reimbursement to Robert for the 2010, 2011, and 2012 rentals Barney paid to Kim.
(b) Robert is not bound by the lease, and can evict Barney.
(c) If Robert assumes the lease, then on December 31, 2013, when Barney pays Robert $2,400, he will owe Kim’s estate $600.
(d) Barney has a claim against Kim’s estate if he was unaware that she was a mere usufructuary.
(e) Choices A, B, C, and D are all accurate.
(e)
Choice (e) is the correct answer. The other answer choices are all accurate.
Answer choice (a) is accurate. A usufructuary of a nonconsumable has the element of fructus. All fruits accruing during the usufruct belong to the usufructuary with no duty to account. La. Civ. Code art. 5507
Choice (b) is accurate. “The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct.” [La. Civ. Code art. 567] Thus, Robert is not bound by the lease and may evict Barney.
Prior to his marriage to Sally, Nick became managing partner of Northern, Northern & Beans, a partnership. On the day of their marriage, Nick’s partnership interest was valued at $50,000. During the five years of his marriage to Sally, Nick’s partnership prospered, owing chiefly to Nick’s hard work. At the termination of Nick and Sally’s legal regime, Nick’s partnership interest was worth $150,000. You represent Sally in the partition proceeding.
Which statement best describes the parties’ rights and duties in this situation?
(a) Sally has no rights arising from the partnership interest as it was acquired prior to the marriage and is thus Nick’s separate property.
(b) Sally owns an undivided one-half interest in the partnership interest because it was transmuted into community property through commingling.
(c) Sally has no rights arising from the partnership interest because a spouse who is a partner has the exclusive right to the partnership interest.
(d) The partnership interest is community property, but at termination of the regime Sally owes Nick $25,000 (one-half of its value at commencement of the community property regime).
(e) Although the partnership interest is Nick’s separate property, additional facts are needed to determine whether he owes Sally reimbursement.
(e)
Choice (a) is only partially correct. The partnership interest was acquired prior to the marriage and thus it is Nick’s separate property. [See La. Civ. Code art. 2341] Nevertheless, a spouse whose separate property has benefited from the infusion of community funds or community labor may owe reimbursement at the termination of the regime. [La. Civ. Code arts. 2364, 2366, and 2368] The hypothetical contains facts that suggest that reimbursement by Nick to Sally may be owed. [See the discussion of answer choice (e), infra.]
(b) is incorrect. The partnership interest was acquired prior to the marriage and thus it is Nick’s separate property. [See La. Civ. Code art. 2341] Since a partnership is a juridical person, it remains Nick’s separate property. Had the partnership been converted into another form of juridical person, and had Nick contributed community funds in the conversion, then the principle of commingling would apply, and the new juridical person would be classified as community if the community amount he contributed was not inconsequential as compared to the value of this interest in his separate property (the partnership interest). [See La. Civ. Code arts. 2338 and 2341] Since this did not occur, the partnership interest remains Nick’s separate property.
Choice (c) is incorrect. It states a portion of the legal regime’s management rule applicable to a partnership interest when that interest is community property. [La. Civ. Code art.
2352] When a partnership interest is a spouse’s separate property, the legal regime’s management rules are inapplicable, since the partnership interest is Nick’s separate property.
Answer choice (d) is also incorrect. Sally would owe reimbursement to Nick if the partnership interest had been transmuted into community property (unless the transmutation resulted from a donation, La. Civ. Code art. 2343.1), but as stated in the discussion of choices (a) and (b), the partnership interest is Nick’s separate property.
(e) is the correct answer. As previously stated, the partnership interest was acquired prior to the marriage and thus it is Nick’s separate property. [See La. Civ. Code art. 23411 Nevertheless, the facts state that the value of Nick’s partnership interest has grown from $50,000 (at the inception of the marriage) to $150,000 (at the termination of the legal regime).
