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Code I Exam > Persons > Flashcards

Persons Flashcards

1
Q

Two types of person in Louisiana

A

Natural and Juridical Persons

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2
Q

Two exceptions to the rule that natural personality begins at birth

A

(1) Once you are born alive, then the law says that your natural personality relates back to the moment of conception for purposes of inheritance. (2) An unborn child need not ever be born for the parents to sue for wrongful death.

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3
Q

Death is established by:

A

(i) certification of a physician, or (ii) a judicial declaration of death.
A physician will declare a person dead if there has been irreversible cessation of respiratory and circulatory functions (i.e., the lungs and the heart) or irreversible cessation of the brain.

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4
Q

The domicile of a juridical person is both

A

its state of incorporation and principle place of business

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5
Q

Domicile for married persons

A

Spouses may have a common domicile or they may have different domiciles.

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6
Q

Un-emancipated minors (domicile)

A

Domicile of the parent with whom the child usually resides

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7
Q

Full interdicts (domicile)

A

same domicile as their curiator

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8
Q

Limited interdicts (domicile)

A

retains his or her own domicile

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9
Q

Prerequisites of Marriage

A

(1) absence of any legal impediment, (2) marriage ceremony, and (3) free consent.

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10
Q

Legal impediments to marriage include

A

(1) A prior existing marriage, (2) Marriage to someone in your direct line, (3) Marriage to someone related to you in the fourth degree,

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11
Q

Effect of having a legal impediment to marriage

A

If there are any of these legal impediments to marriage, then the marriage is absolutely null, meaning it is void; it cannot be confirmed.

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12
Q

A valid marriage ceremony requires two things:

A

(1) Both the husband and wife must be present for the ceremony, and it must be performed by a qualified celebrant.

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13
Q

Qualified celebrant is

A

either someone who is qualified (e.g., clergy, state judge) or someone who both parties to the marriage reasonably believe is qualified.

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14
Q

Effect of not having a valid marriage ceremony

A

If you do not have a valid marriage ceremony, the marriage is absolutely null, meaning it is void; it cannot be confirmed.

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15
Q

Free consent requires three things

A

(1) No duress, (2) Parties must be “capable of discernment” (sober), and (3) Be of proper age (Un-emancipated minors (i.e., under 18) cannot marry without parental consent).

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16
Q

Effect of not having free consent (marriage)

A

(1) If a marriage does not have free consent, the marriage is relatively null.
(2) This means that the marriage can be confirmed.

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17
Q

A putative marriage occurs when

A

there is an absolute nullity (so either there is a legal impediment or a problem with the marriage ceremony), and at least one spouse has good faith.

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18
Q

Good faith in the context of putative marriage means

A

The honest and reasonable belief that there was no impediment to marriage

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19
Q

Effects of a Valid Marriage

A

a. Duties of fidelity, support, and assistance
b. Either spouse can take the other’s surname
c. Default creation of community property

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20
Q

Effects of a Putative Marriage

A

The effects are the same as a valid marriage as long as the good faith spouse remains in good faith

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21
Q

If a prior marriage is the legal impediment (which is the most common legal impediment in the real world and on the bar exam), then the putative marriage continues until either:

A

(1) the good faith spouse marries someone else, or (2) there is a juridical declaration of nullity.

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22
Q

What happened to community property in a putative marriage and the common spouse is in good faith?

A

When the common spouse is in good faith, the common spouse gets ½ of the community property created during the putative marriage, and each of his wives gets ¼ of the community property created during the putative marriage.

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23
Q

What happened to community property in a putative marriage and the common spouse is NOT in good faith?

A

When the common spouse is in bad faith, the common spouse gets 0 of the community property created during the putative marriage, and each of his wives gets ½ of the community property created during the putative marriage.

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24
Q

An absolutely null marriage produces no civil effects unless

A

it is a putative marriage.

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25
Q

A relatively null marriage produces all civil effects of a valid marriage until:

A

There is a judicial declaration of nullity

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26
Q

Marriages end by

A

death, judicial declaration of nullity, or divorce.

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27
Q

There are two types of divorces in Louisiana:

A

fault-based divorce actions and no-fault divorce actions.

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28
Q

There are three types of fault-based divorce actions:

A

(a) divorce on the grounds that one spouse committed adultery; (b) divorce on the grounds that one spouse committed a felony and was sentenced to death or hard labor; (c) divorce on the grounds that one spouse physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.

NOTE: Fault-based divorce actions provide for immediate divorce.

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29
Q

To prove adultery, there must

A

be a preponderance of the evidence showing facts and circumstances that lead fairly and necessarily to the conclusion that adultery has occurred.

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30
Q

The spouse who allegedly physically or sexually abused the other spouse or a child of one of the spouses

A

does not need to be prosecuted for the act of abuse in order for a fault-based divorce to be granted.

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31
Q

Divorce can also be granted on the grounds that one spouse physically or sexually abused the spouse seeking the divorce or a child of one of the spouses or

A

if a protective order has been issued protecting the spouse seeking the divorce or a child of one of the spouses from divorce.

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32
Q

There are two types of no-fault divorce actions

A

102 and 103(1)

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33
Q

102 divorce

A

102 divorce requires the spouses to live separate and apart for the requisite time period after filing a petition for divorce.

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34
Q

103(1) divorce

A

103(1) divorce requires the spouse to live separate and apart for the requisite time period before filing a petition for divorce.

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35
Q

Requisite time periods for 102/103(1) divorce If the spouses have no minor children

A

180 lived separate and apart

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36
Q

Requisite time periods for 102/103(1) divorce If the spouses have minor children

A

365 lived separate and apart

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37
Q

Defenses to a no-fault divorce action

A

(a) Procedural steps for filing the no-fault divorce action have not been met.
(b) Reconciliation (the resumption of a life together with the mutual intent to resume the marriage)

38
Q

Types of Spousal Support

A

interim spousal support and final spousal support.

39
Q

The purpose of interim spousal support is

A

to maintain the status quo.

40
Q

Interim spousal support lasts until

A

the judgment of divorce, unless there is a claim for final spousal support pending. BUT: If there is a claim for final spousal support pending, interim spousal support lasts until the claim for final spousal support has been dispensed with.

41
Q

What kind of spousal support can be waived?

A

Final spousal support. Interim spousal support cannot be waived in advance; fault is immaterial.

42
Q

The factors for determining if interim spousal support should be given are:

A

(1) standards of living, (2) needs of the parties, (3) the ability of the spouses to pay. (SNAP)

43
Q

Final Spousal Support, when applicable?

A

(1) If you engage in behavior that would allow for a fault-based divorce, you cannot receive final spousal support, even if there is a no-fault divorce action.
(2) If you commit adultery, no final spousal support for you.
(3) However, the rules of reconciliation apply and act as an eraser for the fault.

44
Q

Factors courts use to determine the amount and duration of final spousal support include:

A

(1) tax consequences, (2) health and age of parties, (3) duration of marriage, (4) income of parties, (5) the financial obligations of the parties (owe support from prior marriage?), (6) time necessary for claimant to acquire appropriate education, training, or employment, (7) effect of custody of children on claimant’s earning capacity;
(8) present earning capacities of the parties.

NOTE: Final spousal support may be awarded for a set period of time, i.e., it does not have to go on forever.

MNEMONIC: Timmy hoarded the dirt in front of the children’s playground

45
Q

Spousal support can be modified if a party can show:

A

A material change in circumstances

46
Q

Spousal support is terminated if

A

the spouse receiving support either remarries or cohabitates like a married person.

47
Q

Use and Occupancy of Family Home After Divorce

A

The party who gets use and occupancy of the family home (regardless of who owns it) frequently will be dependent on who has custody of the children.

48
Q

Courts award child custody in the following order of preference:

A

(1) Custody arrangement the parents agree to (unless it’s not in the best interest of the child), (2) joint custody, (3) sole custody.

49
Q

The domiciliary parent is:

A

The parent with whom the child resides. The domiciliary parent is able to make all decisions for the child, but the non-domiciliary parent may have a court review major decisions.

50
Q

To receive sole custody, a parent must show by clear and convincing evidence that:

A

joint custody is not in the best interest of the child.

51
Q

Best interest of the child factors:

A

a. moral fitness of the parents; b. love, affection, and other emotional ties between each party and child;
c. distance between respective residences of parties; d. mental and physical health of the parties; e. length of time child has lived in a stable environment, with desirability of maintaining that environment;
f. capacity to provide child with food, clothing, medical care;
g. willingness of parties to facilitate and encourage a continuing relationship between child and other party (i.e., the other spouse);
h. home, school, and community history of child;
i. permanence of the existing custodial home; j. reasonable preference of child if child is of sufficient age to express a preference;
k. capacity to provide child with love, affection, and spiritual guidance, continue education and rearing of child;
l. responsibility for the care and rearing of the child previously exercised by each party.

MNEMONIC: Mommy loves Daddy. Mother loves father. Cats hate puppies. Puppies love cats (morality, love and affection, distance between parties, mental, length of time for stable environment, food, continuing relationship with ex-spouse and child, history, permanence, preference, capacity to provide love, responsibility for care).

52
Q

A proceeding for granting custody must take place in

A

either the parish where a party to the proceeding is domiciled or the parish of the last matrimonial domicile.

53
Q

A temporary custody order can be granted only if:

A

(1) there is a verified petition or support affidavit that immediate and irreparable injury will result to the child;
(2) the attorney for the person proposing a temporary custody order must certify that either efforts have been made to give any adverse parties notice of the effort to obtain a temporary custody order or reasons why notice should not be required.

54
Q

A temporary custody order can last for only 30 days, but it can be extended one time for

A

up to 15 days

55
Q

Three circumstances under which modification of child custody arises:

A

(1) Everyone agrees to the modification, (2) the parties don’t agree, and custody was originally granted via consent decree, (3) the parties don’t agree, and custody was originally granted via considered decree.

56
Q

If the parties agree to the change in custody, they must show:

A

1) material change, and

2) the modification meets the best interest of the child factors.

57
Q

Everyone does not agree to the modification and originally there was a consent decree (or stipulated judgment) granting the custody arrangement, custody can change upon a showing of

A

1) material change, and

2) the modification meets the best interest of the child factors.

58
Q

Everyone does not agree to the modification and originally there was a considered decree granting custody, custody can change upon a showing of

A

Bergeron Proof:

1) continuing the custody arrangement is deleterious for the child OR the harm caused by changing the custody arrangement is substantially outweighed by the advantages of changing custody.
2) harm caused by changing the custody arrangement is substantially outweighed by the advantages of changing the custody arrangement.

59
Q

Modifying a custody agreement can be done through a summary proceeding, which can be brought in

A

the parish where the person awarded custody is domiciled, or the parish where the most recent custody agreement was entered.

60
Q

If the party who was awarded custody is no longer domiciled in the state, the proceeding for a change of custody may be brought either:

A

(a) in the parish where the person seeking to modify custody is domiciled, or
(b) the parish where the custody decree was rendered.

61
Q

A parent not granted sole or joint custody may have visitation rights unless

A

giving visitation rights would not be in the best interest of the child.

62
Q

Persons who can propose relocation of a child post-divorce are:

A
  1. Person with sole custody
  2. Domiciliary parent if there is a joint custody arrangement
  3. Any person with equal physical custody
  4. Natural tutor if the child was born out of wedlock
63
Q

If a person proposes a relocation, the person proposing the relocation must

A

notify everyone who has any custody or visitation rights with regards to the child.

64
Q

The person proposing relocation must prove that the relocation is

A

made in good faith and is in the best interest of the child

65
Q

Best interest of the child consideration for relocation

A

(1) nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life;
(2) age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development;
(3) feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements; (4) child’s views about the proposed relocation, taking into consideration the age and maturity of the child;
(5) whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party;
(6) how the relocation of the child will affect the general quality of life for the child;
(7) reasons of each person for seeking or opposing the relocation; (8) current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child;
(9) extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation;
(10) feasibility of a relocation by the objecting person;
(11) history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation; (12) any other factors.

66
Q

Rules of Filiation that Apply to Mothers

A

You must prove by preponderance of the evidence that the child was born to a particular woman (show by testimony witnessing the birth, documentary evidence, signing the birth certificate, etc.).

Exception for surrogacy: If the gestational surrogate is related to the donor of the egg or sperm, and the egg and sperm donors are married, maternity is defined as the person from whom the fertilized egg came.

67
Q

Contestation actions are instituted to establish

A

that the former husband is not the father of the child and the present husband is the father of the child. Thus, contestation actions apply only when mom is on her second marriage and wants to show that the first husband is not the father of the child.

68
Q

For a contestation action, mom must show by clear and convincing evidence that:

A

(1) the first husband is not the father, and (2) the second husband is the father. The second husband must thereafter acknowledge the child is his by authentic act or by signing the birth certificate.

69
Q

Authentic act

A

Act executed before a notary and two witnesses and signed by the parties who executed the act, the witnesses, and the notary.

70
Q

The mother may bring a contestation action within

A

180 days of the second marriage (to the man who she is claiming is the father) and two years of the birth of the child, whichever comes first.

71
Q

The former husband may obtain a judgment of disavowal of paternity of the child by:

A

1) A disavowal action must be proved by clear and convincing evidence.
2) The former husband trying to disavow paternity must prove that he is not the father.
3) A disavowal action is subject to a one year prescriptive period from the date the former husband learned or should have learned of the birth of the child.
a) However, if the former husband and mother lived separate and apart continuously for 300 days prior to the birth of the child, the prescriptive period does not begin until the former husband is notified in writing that someone has asserted he is the father of a child.
4) If a former husband dies before prescription has run, then his successor whose interest is adversely affected may institute an action to disavow paternity.
a) The action of a successor to disavow paternity is subject to a one year prescription period from the date of the death of the former husband.
b) If prescription has not commenced when the former husband dies, the action of the successor is subject to a one year prescription period from the day the successor is notified in writing that an interested party has asserted that his ancestor is the father of a child.

72
Q

There is a presumption that the former husband of the mother is the father of the child if:

A

the child is born within 300 days since the marriage’s termination. even if the mother is remarried

73
Q

If the former husband disavows paternity for a child who was born when the mother was married to a second husband, then

A

the second husband is presumed to be the father.

74
Q

If a man marries the mother of a child who is not filiated with another man

A

the man who marries the mother may, with concurrence of the mother, acknowledge the child. Such an acknowledgment must take place by authentic act or by the man signing the birth certificate.

75
Q

The man who marries the mother and acknowledges may bring an action to disavow. Such a disavowal action is subject to:

A

180 day prescriptive period. The disavowal action must be proved by clear and convincing evidence.

76
Q

A man who does not marry the mother may acknowledge the child by

A

an authentic act or by signing the birth certificate. But, if a man acknowledges the child without marrying the mother, the man may not invoke the presumption of paternity in order to inherit from the child. It is unclear in the Civil Code how a man who acknowledges the child without marrying the mother disavows his paternity.

77
Q

Rules of Filiation that Apply to Children

A

If the father is alive, the child can do it at any time, and must prove only by a preponderance of the evidence that the father is the father.

If the father is dead, the child must prove by clear and convincing evidence that the father is the father, and the child must bring the action within 1 year.

78
Q

A tutor is:

A

the person is charge of the child when parental authority no longer exists

79
Q

Parental authority in Louisiana terminates upon

A

either death of either parent or divorce.

80
Q

There are four types of tutors

A

Natural tutors; Tutors by will; Legal tutors; Dative tutor.

81
Q

Natural tutors

A

The parents following divorce are called “natural tutors” of the child. Does not need court confirmation.

82
Q

Tutors by will

A

People appointed by the parents in a will to be the guardians of the child if they die. Needs court confirmation.

83
Q

Legal tutors

A

If no tutor appointed in the will, then the court will select from the family someone to watch over the child. Needs court confirmation.

84
Q

Dative tutor

A

If no family member, then the court will just select someone to be the tutor. Needs court confirmation.

85
Q

A curator is:

A

A person designated to be in charge of an interdict.

86
Q

Full interdicts

A

Persons incapable of taking care of their person and their estate.

87
Q

Limited interdicts

A

Persons incapable of taking care of either their person or their estate.

88
Q

The procedure for becoming a curator is to

A

a. file a petition for interdiction,
b. demonstrate by clear and convincing evidence all of the facts for interdiction (i.e., incapable of taking care of their person and/or estate), and
c. get appointed as the curator.

89
Q

There are three types of emancipation

A

by authentic act, by marriage, judicially.

90
Q

Emancipation by Authentic Act

A

(1) A minor, along with his parents or his tutor(s) if the minor has tutor(s), may execute an authentic act to emancipate himself.
(a) An emancipation by authentic act must specify the effects of majority that are being conferred upon the child.
(2) The minor must be 16 years old or older.
(3) The parties to an emancipation by authentic act (i.e., the parents and child) may modify or terminate the emancipation by a subsequent authentic act.
(4) A court may modify or terminate an emancipation by authentic act for good cause.

91
Q

Emancipation by Marriage

A

(1) When a minor marries, the minor is emancipated.

(2) Emancipation by marriage cannot be modified or terminated, even if the marriage is terminated.

92
Q

Judicial Emancipation

A

(1) A minor who is 16 years old or older may be emancipated by a court for good cause.
(2) The judicial emancipation may be full judicial emancipation, meaning that all effects of majority are conferred upon the minor.
(3) The judicial emancipation may be limited judicial emancipation, meaning that only the effects of majority specified by the court are conferred upon the minor.
(4) A court may modify or terminate a judicial emancipation for good cause.

Code I Exam (3 decks)

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