Persons and Domicile Flashcards
When does natural personality commence?
Natural personality commences from the moment of live birth and terminates at death.
Exception: a fetus need not be born alive for a wrongful death action to be maintained against the person who caused its death, but a survival action on behalf of the fetus is not authorized.
What is the effect of natural personality?
All natural person enjoy a general legal capacity (as opposed to contractual capacity) to have rights and duties. Majority begins at 18.
WHen does natural personality terminate?
Natural personality terminates at death. Death is established by any of the following:
1) Doctor’s certification of death. Death includes a) the irreversible cessation of spontaneous respiratory and circulatory functions, and b) if kept alive artificially, irreversible cessation of brain function.
2) Judicial declaration of death. Can be a) presumed dead–person has disappeared under circumstances that his death seems certain, established by a preponderance of the evidence; b) a person has been an absent person for 5 years.
Conflict of laws regarding personhood status
The status 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 are examples of juridical persons?
Business and governmental organizations.
In vitro fertilized ovum. It becomes a natural person when implanted in the womb. An ovum has no inheritance rights unless it is born alive. An ovum does not retain rights to inherit from its biological donor parents when it’s donated to another couple.
Where is a person’s domicile?
Natural person: habitual residence. Requires actual residence in a particular location + intent to have that parish as habitual residence.
Juridical person: the state of its formation or its PPB, whichever is more pertinent to the particular issue.
If no habitual residence, any place of residence may be considered one’s domicile.
How does one change domiciles?
Move residence to another location AND intent to make new residence habitual residence. This can be proven by circumstantial evidence. To change domiciles, one must overcome the legal presumption that domicile hasn’t changed.
Domicile as a matter of status
Spouses have either a common domicile or separate domiciles. Unemancipated minor children have domicile of parents with whom the minor USUALLY resides (parent, tutor). Full interdicts have domicile of their creator; limited interdict’s domicile continues.
What are some examples of when a person’s domicile is important?
Venue: custody of a minor may be brought where the party is domiciled; proceeding to change custody may be brought in the parish where the person awarded custody is domiciled.
Subject Matter Jurisdiction: to annul or divorce, one or both of the parties must be domiciled in LA. If the spouse has established and maintained a residence in LA for 6 months, there is a rebuttable presumption that this residence is the spouse’s domicile (this presumption doesn’t apply to other things). Domicile establishes jurisdiction for adoption, emancipation, interdiction…etc.
Community property regimes: for those who are domiciled in LA.
Marriage
Legal relationship between a man and a woman created by civil contract.
Prerequisites for a valid marriage?
1) Absence of legal impediments
2) Marriage ceremony; and
3) Mutual consent of both parties expressed at the ceremony
What are legal impediments to marriage?
Absence of legal impediments is required for a valid marriage. Legal impediments include: an existing marriage, persons of the same sex, direct line relatives and collaterals in the fourth degree including adopted relatives.
What are the requirements of a valid marriage ceremony?
A marriage must have a ceremony to be considered valid. The requirements are:
1) A celebrant who is qualified or the parties reasonably believe is qualified;
2) attendance, in person, by both parties.
The marriage will still be valid, even if it doesn’t have: marriage witnesses, two competent witnesses, a signed certificate, and a summary of laws by the celebrant.
What are the requirements for consent to a marriage?
The parties must give free express consent, not under duress, without mental impediment and of the correct age unless written authorization in juvenile court or parents approval.
What is a covenant marriage?
It’s a special type of marriage that is between one male and one female who understand that marriage is “a lifelong relationship.” No one uses this anymore.
Under what circumstances is a marriage relatively null?
When it’s lacking consent. A judicial declaration is required to annul the marriage.
Effect: The marriage is valid and produces civil effects until officially declared null by the court.
Confirmation by the nonconsenting party precludes an action to annul the marriage.
Under what circumstances is a marriage absolutely null?
1) In violation of any impediment to marriage;
2) Without a marriage ceremony attended by both parties; or
3) by procuration.
Effects: devoid of all legal effect. No judicial declaration is required. Any interested party may bring the action to annul. BUT look to see if there’s a putative marriage.
A party can remarry without a judicial declaration of nullity
When are spouses putatively married? Putative marriage doctrine:
Spouses are putatively married when their marriage is absolutely null AND at least one of the spouses was in good faith in contracting the marriage.
Good faith: honest and reasonable belief that there exists no legal impediment to marriage. Good faith is presumed on the part of the party asserting a putative marriage EXCEPT a party to the previous undissolved marriage bears the burden of proving his good faith in contracting the second marriage.
Actual knowledge of an impediment vitiates good faith. Secondhand knowledge imposes a duty to inquire. If no inquiry, then no good faith.
Civil effects: same as marriage (but good faith/bad faith community rule in Code II. Civil effects continue as long as the spouse remains in good faith. If bigamy is the impediment, civil effects continue until official declaration of nullity or innocent spouse retires.
Children: putative marriage produces civil effects for children of the marriage.
What are the mutual duties spouses owe to each other?
1) Fidelity: Cannot commit adultery; mutual obligation to submit to reasonable and normal sexual desires of each other;
2) support: must furnish necessities of life
3) assistance: must care for an ill or infirm spouse
Spouses can’t sue each other during marriage, so they are unenforceable during marriage.
Parties can’t modify the duties.
Does marriage change the a spouse’s surname?
No. A married person may use the surname of either or both spouses. A widowed, divorced, or remarried woman may use her former spouse’s name or may using her maiden name. No special steps are required.
What events trigger the termination of marriage?
1) Death of either spouse;
2) a judicial declaration of nullity when the marriage is relatively null (absolutely null marriages are null from inception);
3) the issuance of a court order authorizing the spouse of a person on active duty in the military who is presumed dead to remarry;
4) the entry of a judgment of divorce.
What are the types of no-fault and fault divorces?
No-fault divorces
1) Article 102 divorce: parties have lived apart continuously for either 180 days (no minor children) or 365 days (if minor children) after service of petition or written waiver of service.
2) Article 103(1) divorce: living separate and apart continuously for 180 or 365 days or more before petition is filed AND physical separation must be voluntary on the part of at least one party.
Fault divorces:
1) Article 103(2) divorce: immediate adultery divorce–period of separation is not required. Proof by corroborated testimony.
2) 103(3) divorce: immediate felony-conviction divorce–no separation required. Spouse must be convicted of a felony AND must be sentenced to death or to imprisonment at hard labor.
What are the defenses to divorce actions?
1) Procedural: in a 102 divorice, parties can argue that the civ. code proc. requirements haven’t been met (petition alleging jurisdiction and venue verified by an affidavit, rule to show cause, required evidence hearing on rule…etc.)
2) Reconciliation: extinguish divorce action. Resumption of life together with mutual intent to resume the marriage (holding yourself out as married). Isolated sex acts aren’t considered reconciliation. After Adultery: must have forgiveness and knowledge of the offense.
3) Mental condition of at-fault spouse. Mental condition must cause the faulty conduct.
What are the common actions incidental to divorce?
1) Injunctions: no waste of community property; no abuse; no harassment
2) children: custody, visitation, and child support
3) money: spousal support; use of property including the matrimonial domicile. The spouse must have custody of the minor children and living in the matrimonial domicile is “in the best interest of the family.” Last for the earlier of partition of the community or until 180 days after termination of the marriage.
4) the court can award a spouse with the use of community movables or immovables in line with the best interest of the family.
When is a spouse entitled to interim spousal support? How long does it last? When can it be modified?
Interim support is permitted in a divorce when
1) one spouse has a need. The spouse with the need bears the burden of showing a need. Considerations are the spouses income, but not assets or earning capacity.
2) the other spouse has the means to pay, any interim or final child support obligation. Courts look at the payor’s income, assets, earning capacity, and obligations.
3) and the standard of living of the parties during the
marriage.
The trial court has a GREAT DEAL OF DISCRETION.
The role of fault is irrelevant to who can receive interim spousal support.
Duration: An award for interim spousal support terminates upon the rendition of a judgment of divorce UNLESS there
is pending claim for final spousal support when the divorce is rendered.
Modification or termination: if the circumstances of either party materially change OR if it becomes unnecessary.
Spouses can’t waive their right to interim spousal support.
When can a spouse receive final spousal support?
Court may award final period support to a party free from fault prior to the filing of the proceeding to terminate marriage. The award is based on the needs of the claimant (not limited to items for basic survival, but doesn’t include luxury items) and the ability of the other to pay.
What are the relevant factors for determining an amount and duration of the final spousal support?
1) Income and means of the parties, including its liquidity
2) financial obligations of the parties, including child support obligations;
3) earning capacity of the parties
4) effect of custody of children upon a party’s earning capacity;
5) time necessary for the claimant to acquire appropriate education, training, or employment;
6) the health and age of the parties;
7) the duration of the marriage;
8) the tax consequences to either or both parties;
9) the duration of any domestic abuse committed by the other spouse upon the claimant.
The court SHALL award final periodic support or a lump sum it finds that the spouse seeking divorce was not at fault prior to filing and was the victim of domestic abuse committed by the other spouse during the marriage.
What does it mean for a party to be “free from fault” in terms of awarding final spousal support?
1) Adultery: in an action for divorce based on adultery a spouse is entitled to final spousal support when in need, but the other spouse can affirmatively prove the claiming spouse was at fault.
2) Conviction: of felony and sentenced to hard labor or death.
3) Habitual intemperance or cruel treatment that renders living together insupportable. Doesn’t include nagging, fussing, and criticism.
4) abandonment: leaving the dwelling without lawful cause and refusing to return after request
5) Other grounds: defamation, attempted murder, fugitive, nonsupport, other (failure to live up to marital duties of fidelity, support, and assistance–includes no sex).
What is the limitation on the award of final spousal support?
1/3 of the obigor’s net income, unless the claiming spouse is the victim of domestic abuse, then it can be more.
How does one enforce a spousal support award?
Income-assignment orders to enforce spousal support and child support awards. The court must award attorneys’ fees and costs to the other spouse, absent good cause when it renders judgment for past due spousal or child support payments.
The action to collect arrearages is subject to a 5-year liberative prescription. BUT any payment interrupts prescription.
How does a spouse modify, waive, or terminate spousal support orders?
Modification: Party seeking modification must prove a material change in circumstance OR it becomes unnecessary if done through a court. Remarriage isn’t a material change of circumstance.
Procedure: Can be done by a judgment of a court of competent jurisdiction; authentic act; private signature duly acknowledged.
You can also waive final spousal support at any time before or during marriage.
What is the prescriptive period for seeking spousal support?
The RIGHT to seek spousal support is subject to a peremption of 3 years that begins to run from the latest of divorce, judgment terminating previous award, or the last day a payment was made when the obligation was voluntary.
When may a spouse make a claim for contribution?
Spouse or former spouse who has made financial contributions to the other spouse’s training or education during marriage that increased other spouse’s earning power may make a claim for contribution.
The claimant must not have benefitted from the other spouse’s increased earning power during marriage.
