Mutual Consent at Marriage Cermony

Question 1

What type of mutual consent can be expressed at the marriage ceremony?

Answer 1

1. No actual violence or threatened violence
2. Threats of criminal prosecution
3. Persons not capable of discernment due to insanity, drunkenness, mental infirmity.
4. Minors must have judicial or parents consent

Question 2

Covenant Marriage is between two people when they:

Answer 2

1. Go through counseling
2. Declare their intent to contract a covenant marriage on their application for a
   marriage license, and 3. Execute a notarized declaration of intent to contract a covenant marriage

These can be converted from a regular marriage.

Question 3

When does covenant marriage counseling become important?

Answer 3

Must begin when the parties experience difficulties and continue untl the divorce. But this is not required when there is sexual or or physical abuse of the child or spouse.

Question 4

How is a covenant marriage terminated?

Answer 4

Terminated by divorce after counseling plus one of the following grounds:

(i) the other spouse has committed adultery;
(ii) the other spouse has committed a felony and has been sentenced to
death or imprisonment at hard labor;
(iii) the other spouse has abandoned the matrimonial domicile for one year and
refuses to return;
(iv) the other spouse has physically or sexually abused the spouse seeking the divorce or a child of
one of the spouses; (v) the spouses have been living apart continuously without reconciliation for two years;
(vi) the
spouses have been living apart continuously without reconciliation for one year from a judgment of separation if they are
childless; or
(vii) the spouses have been living apart continuously without reconciliation for one-and-a-half years if they have a child, unless child abuse was the basis for the separation, in which case the spouses need live apart for only one
year after a judgment of separation.

Separation is the same except for (vi):

(vi) the other spouse is habitually intemperate or engages in other
excesses, cruel treatment, or other outrageous conduct of such a nature as to render living together insupportable.

Question 5

What does lack of consent do for marriage?

Answer 5

Makes it relatively null which still produces civil effects until officially declared null by the court.

Question 6

Who can raise marriage nullity?

Answer 6

Must be raised by the nonconsenting party.

In succession case Ricks, a succession rep brought an action to have marriage declared null because the decedent lacked mental capacity.

Question 7

When is a marriage absolutely null?

Answer 7

1. Violation of any impediment
2. No valid marriage ceremony attended by both parties.

Question 8

What is the effect of an absolutely null marriage?

Answer 8

Devoid of all legal effect.

Any interested party may bring annulment action.

Party in absolutely null marriage can remarry without a judicial declaration.

Question 9

Putative marriage is:

Answer 9

a marriage is absolutely null, and at least one of the spouses was in good faith
in contracting the marriage. [La. Civ. Code art. 96]

Good faith is presumed.

Party challenging has the burden of proof.

Firsthand knowledge vitiates good faith.

Secondhand knowledge imposes duty to inquire.

Question 10

What are the civil effects of a putative marriage?

Answer 10

1. Spousal support.
2. Marital Portion.
3. Wrongful death suits.
4. Children
5. Impediment of age does not vitiate good faith.
6. CP exists.

Question 11

What about death of spouse in putative marriage?

Answer 11

Spouse who was in good faith get the CP.

When in bad faith, spouse half foes to the legal and good faith putative spouse.

Question 12

What are incidents of marriage?

Answer 12

1. Not to engage in infidelity.
2. Submit to reasonable sexual demands.
3. Support.
4. Support.
5. Parties exercise parental authority and assume moral and material obligations.
6. Marriage does not change surnames.

Question 13

How is a marriage terminated?

Answer 13

1. Divorce
2. Death
3. Judicial Declaration of Nullity
4. Authorization to Remarry for the Spouse of Presumed Dead Military Person

Question 14

102 No Fault Separation After Service

Answer 14

Divorce permitted after parties lived apart for 180 days without children, 365 days with children after service of petition or written waiver of serice.

Question 15

What is the procedure for a 102 divorce?

Answer 15

1. Filing petition alleging jx venue verified by an affidavit.
2. Rule to show cause may be filed by either party, which must show:
   (a) allege proper service within 90 days
   (b) allege the time period since service or waiver has elapsed.
   (c) Allege separation of the spouses prior to filing
   (d) Verified by mover.

Question 16

What is the required evidence for 102 divorce?

Answer 16

1) Petition
The petition for divorce; and
(2) Return of Service of Petition
Return of service in one of the following forms:
(a) The sheriff’s return of service of the petition;
(b) The sheriff’s return of service showing personal service on the defendant if the parties were living together
at the time of the filing of the petition;
(c) The return receipt when service is effected pursuant to the Louisiana long-arm statute; or
(d) Written waiver of service of the petition.
(3) Rule to Show Cause and Verifying Affidavit
The rule to show cause and the affidavit required by Code of Civil Procedure article 3952.
(4) Return of Service of Rule
The sheriff’s return of personal service of the rule or written waiver of service.
(5) Affidavit of Mover
The affidavit of the mover, executed after the filing of the rule, swearing that the parties have lived separate and
apart continuously prior to filing of rule and that the mover desires to be divorced.

Question 17

When is a divorce petition abandoned?

Answer 17

Rule to show Cause is not filed within two years.

Question 18

When is a divorce petition dismissed?

Answer 18

By way of a joint motion or contradictory motion filed by P.

Question 19

When is the CP regime terminated?

Answer 19

Terminated retroactively to the petition filing date.

Question 20

What is a 103(1) divorce?

Answer 20

Parties must
be living separate and apart continuously for either 180 days (no minor children) or 365 days (minor children) or more
before the petition is filed.

Question 21

What is the procedure for a 103 divorce?

Answer 21

Pleadings Delays
Regular delays for pleading apply but can be waived.

b) Answer
An answer is required after service of petition; however, it can be waived.

c) Default
A default judgment is possible following service of the petition if the defendant does not answer within the time
prescribed by law or if the defendant waives all delays.

d) Affidavits
Technically, no affidavit is required.

e) Effect on Community Property
Because the community property regime is terminated retroactively to the date of the filing of the petition for divorce,
if the divorce is granted based on an article 103(1) petition, the regime will terminate after separation, later than in
an article 102 divorce. [La. Civ. Code art. 159]

Question 22

What is an article 103(2) divorce?

Answer 22

Immediate Adultery Divorce

Must be proved at trial by testimony. Admission of adulterous spouse is not enough.

Proof must be specific.

Circumstantial evidence may be used.

Question 23

What is the procedure for an article 103(2) divorce?

Answer 23

(a) Pleadings Delays
Regular delays for pleading apply but can be waived.
b) Answer
An answer is required; however, it can be waived.
c) Default
A default judgment is possible after service of the petition

Question 24

What is an article 103(3) divorce?

Answer 24

Felony-Conviction

Spouse must be convicted of a felony and must be sentenced to death or to imprisonment at hard labor. No time period
of physical separation is required