family law exam

cause of action for putative marriage

--a putative (innocent) spouse may have a cause of action for damages against the other spouse, but it probably wouldn't result in a huge damage award i. Technically possible to sue beyond Art. 96 ii. Art. 96 is not the only way to recover b/c you can also bring a tort action iii. But, you have to prove emotional damages

Abandonment

1. "Abandoned matrimonial domicile for one year and constantly refuses to return" 2. R.S. § 9:295: covenant spouses have duty to live together

habitual intemperance

1. AKA "excesses" 2. Usually when spouse is alcoholic or drug addict 3. Substance abuse

article 102 divorce

1. Art. 102: Live separate and apart after filing divorce petition (file petition, live separate and apart, get ruling of divorce)

extinguishment of right of FPS

1. Art. 115: "the obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabitated with another person of either sex in the manner of married persons (i) Death of either party/remarriage of obligee automatically extinguish obligation w/o judicial declaration (ii) Cohabitation with another person of either sex in manner of married persons *4. Requires judicial determination 5. Not automatic like remarriage 2. When term set by court runs (Arnold/Vincent) 3. By passage of preemptive period of three years from judgment of divorce 4. Art. 114: Upon court finding of a changed circumstance, if the court finds it necessary (a) 5. Art. 116: By authentic act or under private signature duly acknowledged by obligee

Legislative order of preference

1. Art. 132: If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. a. Guidance b. But, its really a mandate: "shall" c. Stronger than a "preference"

modification of award

1. Art. 142: An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary. b. Something important—real impact on child or the ability of a parent to pay (opened new business, new medical bills, etc.) something like a 25% change in the award would result if the action was brought

expressed consent (form)

1. Art. 87: requires for a contract of marriage the free consent of the parties to take each other as husband and wife, expressed at the ceremony. a. Needs to be changed to "spouses" 2. They have to say something, indicating they are taking each other as husband and wife, like "I do" (no magical words though)

prior undissolved marriage

1. Art. 88: A married person may not contract another marriage (considered polygamy) iii. Only way to contract another marriage is to terminate first marriage

presence of the spouses

1. Art. 91: "the parties must participate" indicates that you need spouses a. This means you can't have a proxy there for you at the ceremony (see art. 92), and you can't get married "remotely" (e.g., via teleconference).

marriage ceremony requirements

1. Art. 91: The parties must participate in a marriage ceremony performed by a third person who is qualified, or reasonably believed by the parties to be qualified, to perform the ceremony. The parties must be physically present at the ceremony when it is performed.

Duress vitiates consent

1. Art. 93: Consent is not free when given under duress or when given by a person incapable of discernment. b. Need violence/threat of violence of such a nature that it causes a reasonable fear of unjust and considerable injury to a party's person, property, or reputation. i. Threat must be to do unlawful act; threatening to engage in lawful activity is not duress (Courts forget duress means unlawful activity & not just emotional bad choices) ii. Threat does not have to be made by or to the contracting party iii. Third party can perpetrate duress (father)

Exception: putative marriage doctrine

1. Art. 96: "An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith. a. When the cause of the nullity is one party's prior undissolved marriage, the civil effects continue in favor of the other party, regardless of whether the latter remains in good faith, until the marriage is pronounced null or the latter party contracts a valid marriage. b. A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties. 2. A purported marriage between parties of the same sex does not produce any civil effects." * Marriage is still considered absolutely null, but allow some civil effects to flow

Notarized affidavit signed by couple and counselor

1. Brings home seriousness to parties 2. Cautionary function

cruel treatment

1. Broader than habitual intemperance 2. Refusing to submit to reasonable/normal sexual desires, persistent nagging, etc. 3. Failure to fulfill art. 98 duties 4. R.S. § 9:30—standard is that it renders couples living together insupportable a. Pre-1991 to insert some subjectivity b. One woman may think something is cruel treatment and that it's worse than another woman i. Some reasonableness standard ii. But, look at each individual couple iii. Objective inquiry with subjective elements

common material changes

1. Change of income that affects party's ability to pay a. Around 25% is significant change b. Not dispositive, but frivolous if you sue for change every year c. Losing a job would significantly change a party's income d. Remarriage of wife doesn't necessarily mean FPS obligation ends; need to look at circumstances (marry donald trump, no need)

Ability to pay

1. Consider payor's income and Entire financial condition on spouse owing obligation (com. debt)

judgement of divorce granted in another country

1. FFC doesn't apply to judgments of another country 2. Some treaties require recognition of foreign judgments 1. But, in US, even though its not required by FFC, we respect foreign judgments often under comity 2. Not required, but usually done as a courtesy 3. Courts have discretion

defenses for breach of contract to marry claim

1. Fault of the other 2. Causation 3. Existing marriage

Bergeron Standard

1. First, he has to prove that there's been a change in circumstances 2. And that the continuation of the present custody is so deleterious to child as to justify a modification of custody decree OR i. (proof that kid is "screwed") 3. Proof by clear/convincing evidence that harm is likely to be caused by change of environment is substantially outweighed by its advantages to child (evidence of fancy school, etc.) a. Not as high as substantial harm b. But greater than "best interest of the child"

Burden of proof for fault

1. General rule: burden is on claimant to prove he/she is free from fault (Carroll thinks this is dumb af) 2. Burden shift: after claimant makes prima facie case, shifts to payor to show claimant was actually at fault 3. Exception: if clamant got fault-based divorce on grounds of adultery, payor/adulterer bears initial burden a. Bc divorce is based on H's adultery, we assume that FPS claimant is free from fault. Bc nagging, etc. is a reasonable reaction to adultery. So there's no point in having BOP on claimant.

Declaration of intent

1. Includes "disclosure" provision of anything that may impact the decision/that may negatively impact marriage 2. Must make all "reasonable efforts" to preserve marriage, including marital counseling 3. This is what could give rise to possible fraud claims

No fault grounds for 103

1. Louisiana requires a wait of either 6 months or 1 year (depending on circumstances) before allowing a no-fault divorce. Art. 103.1 a. 6 months if no minor children b. 1 year if you have minor kids of the marriage

Parental Relocation

1. Move out of state or 75 miles away from original location 2. To parent with "primary custody" or either parent if they have "equal physical custody" 3. Other parent entitled to notification and before relocation, must obtain court authorization after a contradictory hearing or written consent of other parent

recovery for breach of promise to marry

1. NO specific performance 2. Art. 1995: damages by loss sustained by obligee and profit he's been deprived of 1. Bought dress, paid band, venue, etc. 2. Profit deprived of is more difficult in marriage bc it's too speculative - judges don't award loss profit 3. Non-pecuniary damages: To recover for this: 2 elements: i. 1. Contract's nature must gratify a non-pecuniary interest, and ii. 2. And breaching party (obligor) must know (or have constructive knowledge) his failure to perform will cause a non-pecuniary loss

(vi) Limitation on award

1. No cap on duration a. Meant to be permanent b. Ends at death/remarriage/end of term 2. Cap on amount—Art. 112(D): 1/3 of obligor's net income a. Net income i. General rule is that "net" means take home pay minus taxes ii. Net = take home (net of taxes/income reductions) iii. Agreed that its reduced for taxes, but cases don't agree on whether anything else is deducted in order to determine net income

existing marriage

1. No recovery awarded for breach of promise to marry, when a condition of the promise was that one of the parties would divorce his current spouse. 2. Public policy prevents from recovery - encourages divorce

child custody's 2 parts

1. Physical Custody: physical care/control of child 2. Legal Custody: decision-making authority (who decides education, religion, etc.)

The absence of legal impediment

1. Prior undissolved marriage, same sex, blood line (close relationship by blood/adoption, Art. 90) 2. Legal impediment prevents marriage and creates nullity

(iv) If other party objects: Party seeking relocation must prove (Know both 2)

1. Relocation made in good faith (can't be trying to distance kid from parent) AND 2. Relocation in best interests of the child

What is BIOC for relocation?

1. Similar to custody factors 2. But, more tailored to relocation 3. Ex: will education be just as good, how will home life be, will non-domiciliary parent still be able to exercise visitation, ability of parents to provide financially

Limitation on award

1. There are no dollar amount restrictions in art. 113; only in FPS it's 1/3 net income 3. Money can be reduced if Trial Court abuses its discretion, but often you have large sums b. Want to keep interim spousal support as long as possible if you are needy spouse because its possible to get more money than FPS

Sanctioning breach of support

1. This is different from sanctioning other duties b/c support is a prime instance for specific performance a. If you could sue for support, it would be easy to do b. This is an easy case for specific performance b/c its monetarily valued and court can physically force you to pay money c. Obstacle is the inter-spousal bar to suit.

free consent

1. This is the last requirement under art. 87: the free consent of the parties to take each other as husband and wife, expressed at the ceremony. 2. Has to be expressed at ceremony (form, if not expressed, then nullity). Also have to "feel" it internally (subjective).

Adjusting gross income

1. We adjust for two things a. Preexisting child support payments (for kids from previous relationship) b. Preexisting spousal support payments 2. These are preexisting legal obligations a. They are mandatory—party must pay b. This reduces gross income c. Idea is that you can't eliminate/ reduce effect of obligation to first family b/c you've had other kids i. You are voluntarily taking on a new obligation

Comparative Rectitude

1. Weigh fault of parties 2. Whoever is less at fault can get divorce/legal separation 3. Equitable modification of recrimination 4. But, problem b/c courts found it almost impossible to quantify fault, especially with lesser acts of fault (v) All eventually jurisprudentially abolished 1. Didn't want inequitable result of virtually eliminating divorce 2. And didn't want to compare fault

Remedy for breach of assistance in the marital context

1. You can't sue for this because of inter-spousal bar to suit. 9:291 2. Divorce is not sanctioned b/c this is not a basis for fault 3. For traditional marriage, lack of assistance deprives you of spousal support. a. Breach of duty of assistance=cruel treatment b. Cruel treatment=fault c. Art. 112: When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other to pay, that spouse may be awarded final periodic support. 4. In covenant marriage, cruel treatment (AKA, breach of duty of assistance) is immediate grounds for legal separation

termination of marriage art 101

(1) Art. 101: Marriage terminates upon: (a) The death of either spouse (b) Divorce (c) A judicial declaration of nullity, when the marriage is relatively null (d) The issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law (2) 9:301—allows spouse of military person to get court order to presume death, which allows spouse to remarry (a) Different from a declaration of death (b) Juridical personality hasn't ended (3) No absolute nullity (marriage never existed, no there is no termination of it)

k) Biological Filiation

(1) Art. 179: filiation is established by proof of maternity or paternity or by adoption

requirements for the traditional contract of marriage:

(1) The absence of legal impediment; (2) A marriage ceremony; (3) The free consent of the parties to take each other as husband and wife, expressed at the ceremony. *(ii) These requirements are exclusive

venue

(2) Code Civ. Pro art. 3941: court where action brought, nullity of judgment of court of improper venue (a) Can't be waived (b) Judgment of divorce/annulment of marriage in court of improper venue is an absolute nullity (c) Jurisdictional (i) Parish where party domiciled or (ii) Parish of last matrimonial domicile

vi) Temporary use and occupancy of the family residence and other property

(2) This is a temporary order pending court issuance of divorce judgment and partition of community property (3) You get a court order for temporary use of the family home or other movables/immovables—like a car

jurisdiction

(2) While jurisdictional divorce (Williams I) is based on domicile of one party (3) This isn't the case for incidental relief (a) Court needs IPJ and SMJ over ∆ (b) Can't get child support, spousal support, custody action in state that only has domicile over one party—need jurisdiction over defendant

incidentals in covenant marraige context

(3) No special rules for incidental relief in covenant marriage context (4) So, incidental relief is the same in theory for both except things like longer interim spousal support because of the longer cooling off periods *spouses are more like to get FPS because it's usually easier to find fault in covenant marriages because there are more obligations (counseling, living together, etc.)

(xii) RS § 9:344—Visitation rights of Grandparents and Siblings applies to:

1. cohabiting parents or 2. married parents who have not filed petition for divorce 2. Reasonable visitation if its in the BIOC AND one of the following.... 3. (A) Married parent has died/been interdicted/incarcerated→ to parents of deceased/interdicted/incarcerated (absent parent's parents) 4. (B) Parent living in open concubinage has died/incarcerated→ to parents of deceased/incarcerated (no marriage requirement and no interdiction) 5. (C) Married parent died/incarcerated→ to sibling of minor child or children of the marriage (can be related to either parent) 6. (D) Married parents legally separated OR living separate and apart for 6 months→ to grandparents (either set) or siblings of children of marriage *No extraordinary circumstances must be proven except in D

Child support awarded based on:

1. need of the child. 2. ability of the parents to pay

considerations for deviation

1. off the chart income (deviating by increasing) 2. obligation to support other dependents (this is only if an obligor has multiple families and is not living with any of them) 3. Extraordinary medical expenses (Not already covered in guidelines ; Not covered by insurance and extraordinary amounts) 4. Extraordinary community debt 5. Interim order (i. Have to gather data for expenses/income but kids need money now) 6. Disability of spouse or children 7. Catch-all: Any other consideration which would make application not in BIOTC or not equitable to parties

Extraordinary circumstances examples

1. parental drug addiction (problematic) 2. parent is unavailable a. Non-parental visitation to provide something like a parental substitute b. Role model/positive influence on child c. Idea that we don't want child to lose connection with one side of family and visitation with grandparents may be only connection to family d. Relative visitation as substitute for bad parent 4. Most common example: child lived with relative at one time a. Want to maintain connection with person who helped in child's rearing

effect of relatively null marriage:

(a) Art. 97. A relatively null marriage produces civil effects until it is declared null. (i) Need a declaration of nullity. (ii) Has legal effect until the party who lacked the free consent goes to court and asserts it (only remedy for consent-giving party is divorce) --this applies even if one of the spouses is in bad faith; doesn't matter *If declared null, lack of civil effects is retroactive

"between man and woman"

(a) As of June 26, 2015, when US SC decided Obergefell, that provision of art. 86 became unconstitutional. (i) Provision still on books, but can't be enforced. It's expressive: for how we're supposed to act in La. & it's also there in case Obergefell is overturned

Other incidental relief: reimbursement of educational expenses

(a) Court may award party a sum for his financial contributions made during marriage to education/training of his spouse that increased spouse's earning power, to extent that claimant didn't benefit during marriage from increased earning power (b) Claim is strictly personal to each party (c) Prescribes 3 years from date of signing of judgment of divorce/declaration of nullity

engagement contract

(a) It's a contract in the state of LA based on the exchange of promises to marry (b) Has an actionable breach of contract claim (i) "Heart-balm" actions (broken engagement is an outdated "heart balm" action in other states)

Marriage is governed by these three sets of rules

(a) Marriage rules in title (b) Conventional obligations (c) Obligations in general but specific rules trump general rules (marriage rules are normally more specific so they will trump)

(2) Initial Custody Determination

(a) Paramount Principle: "best interest of the child" i. TC determines custody after a 5-20 minute hearing with the child ii. Judge has little time and has very broad discretion (some say they have too much discretion) iii. Appellate courts very rarely reverse 2. Reversal standard is abuse of discretion b. Physically child has gotten used to certain place and legally gotten used to certain person making decisions for him c. Stability is such a huge goal to be maintained (every standard we have here is based on this)

legally forced domicile

1. unemancipated minors (domicile of their parents) - emancipated minors can choose own domicile 2. full interdicts (domicile is that of curator art. 42) 3. limited interdicts (may have their own domicile depending on what right they are interdicted over) 4. majors under tutorship (someone who is not a parent taking care of affairs of someone mostly likely with extreme disabilities; domicile is that of tutor)

Deviation from amount in guidelines

1. § 9:315.1 a. Amount in guidelines: rebuttable presumption that the amount is correct b. Rebuttable, so there's a possibility for deviation c. Deviate if guidelines application would not be in BIOTC or would be inequitable to parties. The court shall give specific oral reasons or written reasons for the deviation, including a finding as to the amount of support that would've been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. Reasons part of record of proceedings

covenant marriage context

2. "A covenant marriage is...Only when there has been a complete and total breach of the martial covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized" 3. It appears to revive it in its plain language, but there is no express intent to show the revival of recrimination. 4. We have no answer to this b/c there are no cases. 3. Carroll thinks that intent was to wax importance of intent of marriage, not revive recrimination

Assistance

2. "Assistance" here means non-monetary help a. Courts have determined that monetary help is covered under "support" b. EX: doing dishes, taking out trash, etc. c. If your spouse is ill, and you fail to sufficiently "take care" of the spouse, then you have violated the marital duty of assistance 3. Art. 98 Comment (c): The duty to render assistance, insofar as it is separate from that of support, includes the personal care to be given an ill or infirm spouse a. Indicates some duty to care for ill spouse i. Usually with serious illness, not sure about contagious, but you have to give some care ii. Requires personal care along with medical care v. Seems more likely that there will be reasonableness limit with dangerous disease from exposure vi. You should at least do something, but not sure how far you have to go

spouses' domiciles

(b) Art 40: spouses may have either common or separate domiciles -- marriage doesn't create a new entity, so married people can have different domiciles

Child support beyond 18; to 19

2. (C) Extension to maximum age of 19 or when secondary school ends(as full time student), whichever 1st (either turn 19 or graduate high school, which is first)

Error vitiates consent

2. Art. 1949: Error vitiates consent only when it- 2 prongs: a. 1. Concerns a cause without which the obligation would not have been incurred (But-for cause) and b. 2. That cause was known or should have been known to the other party

Child custody

(b) Art. 131: In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. (i) "In a proceeding for divorce or thereafter" makes it seem like you have to have filed petition for divorce (read this language out if not divorced or never married)

Evidence for proof of maternity

(b) Comments to 184 (i) Cmt. A—maternity may be proven by any evidence at any time (ii) Cmt. B—evidence of maternity includes all facts and circumstances establishing that a child was born of a particular woman, including 1. Testimony of witnesses to fact of birth 2. Documentary evidence 3. Scientific evidence

(3) To allow removal of personal property

(b) Court may grant ex parte order requiring sheriff/law enforcement officer to accompany spouse to family residence to obtain personal property of that spouse (c) With these actions, you are only able to get them in divorce context

incidental relief jurisdiction

(b) For incidental relief, case isn't about status (i) Domicile isn't enough (ii) It's about money (iii) Need personal jurisdiction over ∆ 1. Minimum contacts with forum state 2. Assertion of jurisdiction can't violate TNOFPSJ

(2) Against abuse and harassment

(b) Injunction prohibiting spouse from physically or sexually abusing other spouse or child of either party (c) This is frequently used

vii) Injunctive relief (1) Against disposition of community property

(b) Injunction restraining or prohibiting the disposition or encumbrance of community property until further order by court (c) Basically an injunction to keep spouse from uncovering any community property-- even earrings

the ring: donation in contemplation of marriage

(b) Obligation subject to suspensive condition (to marry) never fully comes into being if event doesn't occur (i) Uncertain event=marriage (ii) Donation never perfected if there's no marriage (iii) So, must restore parties as if nothing ever happened (iv) Man usually can get ring back (ii) 1736: donation shall be made subject to suspensive condition that the prospective marriage shall take place 1. If they are married for even a day, suspensive condition is met

Modification of Custody

(c) 131: "best interest of the child" standard for modification (will allow modification if its in the BIOC) (i) 131 is the basic article on child custody (ii) So BIOC standard applies to modification as well requirements: 1. BIOC 2. material change in circumstances

Maternal filiation general rule

(c) Art. 184: maternity may be established by a preponderance of the evidence that the child was born of a particular woman, except as otherwise provided by law.

personal effects of marriage

(c) Art. 98: married persons owe each other fidelity, support, and assistance. * These are reciprocal obligations that cannot be contracted around as a matter of public policy

public policy waiving FPS in adultery cases

(c) In subsequent cases, issue if claimant committed adultery and agreement said "regardless of fault" (i) Most courts say that agreement for money w/o fault not allowed in cases of adultery (ii) Fidelity is an art. 98 duty 1. Adultery is breach of art. 98 duty of fidelity 2. Public policy doesn't allow you to deviate from these duties 3. So, allowing spouse to commit adultery probably wont fly (iii) But, saying regardless of fault will usually be ok

applicability

(c) Very difficult to make out; and now that we have no fault divorce all it does is extinguish a fault based divorce; it is no longer a ground to stop a couple from getting divorce. (i) It does not preclude divorce. (ii) It just extinguishes the existing action. (d) The area in which is has the most relevant is spousal support b/c you cannot get spousal support if you are at fault.

form for contracting around FPS/prenups

(d) Specific form required (i) Serious deviation from code (ii) Have to make sure parties know what they are doing (iii) Same form required for change of matrimonial regimes Authentic act: notary and 2 witnesses under private signature

Eligibility for spousal support is dependent on:

(i) "Party who is in need of support" (ii) "Who is free from fault" types: final and interim

additional requirements

(i) 1. Expression of intent to enter into a covenant marriage, when applying for marriage license (ii) 2. Premarital counseling (iii) 3. Declaration of intent 4. Notarized affidavit signed by couple and counselor

wedding gifts

(i) 1734: any third person may make a donation inter vivos in contemplation of a prospective marriage in accordance with provisions of this chapter. Such a donation shall be governed by rules applicable to donations inter vivos in general . . . 1. (so wedding gifts must be returned if no marriage occurs)

Visitation

(i) Ability to get some physical time with child (ii) Physical part of custody 3. Sole custody—one parent exercises custody, other exercises visitation --for joint custody, we don't know what to call it (iii) Visitation is a right 1. But there has to be some cap 2. BIOC is cap, for cases like abuse 3. Even in sole custody, non-custodial parent has visitation rights

causes for absolutely null marriages

(i) Absence of a marriage ceremony (ii) Marriage by procuration (iii) Legal impediment such as: (iv) Prior un-dissolved marriage (v) Close blood or adoptive relationship (vi) Same sex

Fault-based grounds for divorce in a covenant marriage:

(i) Adultery (ii) Commission of a felony and sentence (iii) Abandonment (iv) Abuse 1. Physical or sexual 2. Of spouse or child of either party, which includes step-children

multiple domiciles

(i) Art 39: natural person may reside in several places but may not have more than one domicile - normally the one you've been in longer

change of domicile

(i) Art 44: domicile maintained until acquisition of new domicile (ii) Changes when you move residence to another place with intent to make location your habitual residence

non-recognition of common law marriage

2. Art. 91 requires ceremony, so we don't recognize common law marriage a. Definition: 1. live together for a long period of time and 2. hold yourself out as spouses (voluntary) b. But, if they're validly perfected elsewhere, marriage will be recognized in LA i. Violates public policy ii. But not strong public policy iii. About 13 states have common law marriage

Incapability of discernment vitiates consent

2. Art. 93, comment (d): A "person incapable of discernment" may include, but is not limited to: a. A person under the influence of alcohol or drugs, b. A mentally retarded person, or c. A person who is too young to understand the consequences of the marriage celebration.

marriage certificate

2. Attests to occurrence of marriage 3. Signed by parties, witnesses, and officiate - the official marriage record after ceremony

Expression of intent to enter into a covenant marriage, when applying for marriage license

2. Clerk hands you info pamphlet when you apply for license that explains what covenant marriage is 3. You have to tell the clerk that you want to engage in covenant marriage

No-fault grounds for divorce in covenant marriage context

2. General Rule: 2 years living separate and apart a. Continuously b. Without reconciliation c. No minor children distinction d. 103-type grounds 3. 1 year or 1.5 years with minor children after judgment of separation a. 2 step process b. Get judgment of legal separation first, then live apart i. 103.1-like exception for abuse cases ii. Reverts to 1 year, even if minor children

need

2. Income/earnings—can include work and inheritance 3. Also look at capital assets 4. Earning capacity c. Under 112 (final SS) is it relevant? i. Part (C)(3), statute says to look at earning capacity ii. But, art. 113 doesn't say anything about earning capacity iii. Read in pari materia—art. 113 should consider earning capacity

Standard of living during the marriage

2. Keeping family the SAME as they were DURING marriage is the key to interim spousal support 3. Comments to 113—"while the spouses are living together" c. This allows you to have some transition period for as long as possible i. Adjustment period ii. Time to adapt to new lifestyle

(ii) Parental Agreement on Custody

2. Notion: parents know child better a. Probably coming to a better decision than court b. Court only sees children for a short time 3. Presumption that this is the best option 4. Parents can agree on anything a. Joint custody, sole custody, neither to have custody and another person takes custody b. This is broad c. Parents can agree on basically anything and court shall order this unless its not in best interest iii. This is about parental custody iv. Says nothing about nonparent custody

witnesses

2. Requires 2 competent witnesses of full age a. Presumably, full age means majority

waiving ISS or FPS

2. Spouses can get out of community property rights in prenuptial matrimonial agreement and waive rights for FPS 3. But, court says you can't waive ISS a. Duty of support under art. 98 lasts until marriage ends. b. ISS is required b/c you are still married c. Can't contract out of marital duties, and any agreement to contrary is nullity

Covenant marriage divorce

2. Still allows for legal separation 3. Under R.S. § 9:273, spouses have to contract to take all reasonable steps to preserve marriage a. Fault-based grounds are immediate grounds for divorce b. But, spouses still have to seek counseling c. Specifically for adultery, commission of felony, abandonment

Purpose of stating the burden of proof being preponderance of the evidence

2. To distinguish from subsequent articles in this section (paternity) that require higher standard of clear and convincing evidence

(iv) Troxel Facts to Know:

2. Wa. Statute said "any person can seek visitation at any time, and court shall award if its in BIOC" 3. Trampled on fundamental parental right to make decisions for kid a. Too broad. If random neighbor brought hearing, ct would grant visitation even against parents' wishes. b. Left parents voiceless 4. Although statute held unconstitutional, ct said you shouldn't trample on parents' rights, but if you do tread, tread lightly. Source of confusion.

art. 103 divorce - fault based grounds

(i) Art. 103. "Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that: (ii) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed..." 1. Fault based grounds (know exact language on exam!) 2. "103 (2) The other spouse has committed adultery. 3. 103 (3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor. 4. 103 (4) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse. 5. 103 (5) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse." *Immediate grounds for divorce—no wait time

Defenses to divorce action (in covenant and traditional marriage): reconciliation

(i) Art. 104: cause of action for divorce is extinguished by reconciliation of parties 2. Plain language: making up a. Forgiveness b. Acceptance (ii) Cases say that there must be a "resumption of the life in common" (needed for defense to divorce action) (iii) Difficult to prove 1. Subjective 2. Have to look at facts to determine if it occurred (i) Reconciliation extinguishes COA for divorce, including incidental causes of action 1. Art. 105: spousal support, child support, child custody

modification of award

(i) Art. 114: an award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of either spouse shall not constitute a change of circumstances. 2. Allows for modification of ISS and FPS (ii) Although it allows for both ISS and FPS to be modified, it's unlikely interim will be modified, since its for such a short time

prescription

(i) Art. 184 doesn't have a time limit for establishing filiation

choice of law

(i) Art. 3521: a court of this state may grant a divorce or separation only for grounds provided by the laws of this state *basically, forum shopping is allowed and is prevalent. If you can establish domicile you get the laws of that state. Only area of laws where laws of the home state are not applied *Even worse for covenant marriages (ii) Declaration of Intent (R.S. § 9:273) 1. "We do solemnly declare . . . that our marriage will be bound by LA law on covenant marriage" 2. Bound by contract to be governed by LA law, so its even more egregious to forum shop with lack of application of LA's choice of law

incidental actions

(i) Child custody/visitation (ii) Child support (iii) Spousal support

payment to parent

(i) Child support is for the child, but its paid by one parent to the other (ii) In theory, it's the child's property

general effect of absolutely null marriage

(i) Effect in general contracts: produce no effects and is void ab initio (ii) Put parties back to their original position (iii) Don't even need judicial declaration of nullity (iv) Anyone can raise it, even sua sponte by court (v) In LA, consider marriage to be a different kind of relationship and originally though rule that it has no legal effect was too harsh

mental/psychological illness defense to divorce

(i) Excuse due to mental, psychological disorder (ii) EX: alcoholism, multiple personality, recent case said menopause (i) To extent it exists as defense 1. Used in fault-based divorce 2. Excuse for fault a. Continuation makes it hard to prove causation b. To extent mental illness is defense is that it excuses behavior i. Ex: Schizophrenic & hits spouse= excuse. Depression & adultery= not excused.

art. 45 sworn declaration for proof of intent to change domicile

(i) File sworn declaration of intent recorded from parishes from which and to which he intends to move (ii) Works as presumption (iv) Provides some evidence of intent at time you move b/c otherwise you're reconstructing past intent

3 year preemptive period

(i) For Initial Spousal Support Awards: Art. 117: Right to claim after divorce the obligation of spousal support is subject to a preemption of 3 years, which begins to run from latest of: (preemption more serious= not subject to suspension etc.) 1. Day judgment of divorce signed 2. Day judgment terminating previous judgment of spousal support is signed if previous judgment signed in action commenced either before signing of judgment of divorce or w/in 3 years thereafter 3. Day of last payment made, when spousal support obligation is initially performed by voluntary payment within periods in (1) and (2) and no more than 2 years has elapsed between payments.

no nullity, but fines for officiant still valid marriage

(i) License (ii) Witnesses (iii) Marriage certificates *72-hour rule and minor rule do not lead to nullity.

exception: ring appears more of a gift than engagement ring

(i) Needs to be seen as a pure gift in contemplation of marriage (ii) If he gives it at a time when its questionable what it was for (generally if it's a nontraditional ring) 1. Ex: pink diamond at Christmas 2. Multi-purpose gift doesn't have suspensive condition b/c ring had other purpose

Range of applicability

(i) Neither of these doctrines are applicable in traditional marriage context (ii) But, it's possible that it still exists in covenant marriage context

(c) Commission of felony and sentence of death/imprisonment at hard labor

(i) No time requirement in LA, could be 1 month (ii) Hard labor 1. Sentence in penitentiary 2. Not incarceration/work-release/committed to psychiatric ward 3. Already sentenced (iii) This is an immediate grounds for divorce 1. Primary reason for immediacy is b/c you cannot be married in the normal way

Collateral Attack on Jurisdiction

(i) One thing state can question before FFC is the basis of jurisdiction—domicile 1. Based on question: was party domiciled in forum 2. Don't have to give FFC if not b/c don't have to give effect to nullity 4. Looking at whether finding of domicile was correct *can collaterally attack as long as one party didn't participate (Williams I) and make sure domicile was correct

Range of applicability

(i) Only applies, if at all, in fault-based divorce

traditional marriage requirements resulting in nullity:

(i) Presence of spouses (ii) Participation of qualified celebrant (iii) Expressed consent

Reconciliation's effect on incidental relief

(i) Reconciliation extinguishes COA for divorce, including incidental causes of action 1. Art. 105: spousal support, child support, child custody

Mutuality of fault defense

(i) Sometimes called recrimination or comparative rectitude 1. Recrimination: Original concept was that you could only receive divorce if neither party at fault 2. Historically, divorce/separation used by innocent parties

(i) Exception to R.S. § 9:291 inter-spousal bar to suit for contracts

(i) Technically spouses can sue for breach of covenant contract (ii) EX: If one spouse commits adultery and refuses counseling, other party may be able to sue for breach of contract (iii) Breach is failure to perform duty to make reasonable efforts to preserve marriage (iv) Can't get specific performance for obligations to do, but maybe damages (v) Regardless, this exception opens up the door to suit for contracts

art 111

(ii) "In a proceeding for divorce or thereafter, court may award interim period support to a party . . . in accordance with following articles" a. Can sue for spousal support as long as you are living separate and apart, even though no petition filed (102 or 103 or just separated) b. Also with child custody and child support i. But only with petition for divorce can you sue for other incidental relief

Enforcement

(ii) "Interspousal Bar to Suit" R.S. 9:291 provides that spouses may not sue each other during marriage except for: 1. Claims pertaining to contracts 2. Claims pertaining to community property 3. Restitution of separate property 4. Divorce or declaration of nullity of the marriage 5. Spousal support, child custody, child support while the spouses are living separate and apart (iii) R.S. 9:291 prevents spouses from suing each other for breaching duties under Art. 98

Remedies for relative nullity:

(ii) Art. 95: nullity may be declared null upon application of party whose consent wasn't free (iii) Party with free consent cannot raise the nullity. Their remedy is divorce. (iv) Art. 2033: relatively null contract that's declared null by court is deemed never to have existed (retroactivity)

confirmation

(ii) Art. 95: the marriage may not be declared null if that party confirmed the marriage after recovering his liberty or regaining his discernment. Definition of confirmation: (iii) But, you don't have to confirm by living together for a year, it's just one way (iv) Sex is considered to be confirmation. (v) If they have lived together for a year, it's confirmed likely. (vi) Can also confirm in writing (f) Sex is the big key (i) Used to be that procreation was purpose of marriage, so if no sex, no confirmation (ii) But now, we know that people get married for other reasons (iii) So, likely that cohabitation for a year, even w/o sex, would still confirm nullity

Worksheet A joint custody

(ii) Calculate gross income of each party b. Gross income means income from any source...... c. This includes things like i. Salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest ii. Trust income, recurring monetary gifts, unemployment insurance benefits, annuities, capital gains, social security or workers comp benefits, etc

Arrearages collection

(ii) For Overdue Spousal Support Collection: Art. 3497.1: An action to make executory arrearages of spousal support or installment payments awarded for contributions made by one spouse to the education or training of the other spouse is subject to a liberative prescription of five years. 1. 5 year prescriptive period (prescriptive!) 3. Contemplates that you already have judgment of SS and there's backlog of pay a. Have 5 years to make arrearages executory and bring action to make spouse sell stuff to pay support

Good faith/confirmation

(ii) Good Faith and PMD: only applies to Absolute Nullity! 1. Confirmation: only apply to Relative Nullity

child support guidelines

(ii) Presumption that application of guidelines is appropriate and in BIOTC 1. Can deviate 2. But you have to show what the amount would be with an application of the guidelines 3. And judge has to give specific oral or written reasons a. Judges don't like to do this for policy reasons and normally don't allow it (judges have little discretion otherwise)

Another exception to the general rule: posthumous conception

(ii) R.S. § 9.391.1—child conceived after death of parent: A. Notwithstanding the provisions of any law to the contrary, (184) any child conceived after the death of a decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be deemed the child of such decedent with all rights, including the capacity to inherit from the decedent, as the child would have had if the child had been in existence at the time of the death of the deceased parent, provided the child was born to the surviving spouse, using the gametes of the decedent, within 3 years of the death of the decedent.

material change

(ii) Standard: material change of either party's circumstance may result in FPS 1. Increase 2. Decrease 3. Termination

prescription

(iii) Obligation still exists, but claim to collect it has prescribed (iv) Claim to initially claim child support/initial claim to seek it—never prescribes, except when child reaches majority. Ex: only learn who dad is at age 16. 1. You get child support from the date of judicial demand (v) But, 10 year prescriptive period on collecting arrearages for child support 1. This is when obligor is delinquent in payment

summary proceeding if no written permission from other parent

(v) Current law as of 2008 says person who wants to relocate has to initiate summary proceeding 1. Ask for hearing, unless you have written permission to relocate from other party 2. Mover has burden of proving that relocation effort a. Is in good faith b. Is in BIOC

accounting of obligee

(vii) So other parent can get accounting of obligee parent 1. But he has to make a rule asking for this 2. And its not an accounting that the law automatically requires 3. Proof of sketchy spending for past 6 months—showing of good cause of bad expenditures 3. Movant pays court costs and attorney fees of recipient of child support when motion is dismissed b/c its frivolous

If felon is appealing his conviction:

3. "The conviction and sentencing alone are sufficient to provide the grounds for divorce, and the public policy underlying this ground for divorce is satisfied by this initial determination of guilt and sentencing." 4. Case suggests that "moral turpitude" is what we really care about when allowing divorce for a felony conviction w/ imprisonment

presumption of paternity

3. Art. 185: "The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage." i. Reasoning for names on birth certificate is biological (even though that's not always accurate - surrogacy/adoption). Point is: purpose has evolved & gay couples being denied parental rights. Normally, judicial decisions are applied retroactively and legislative decisions are not. But here, this decision affects marital property rights, so is has not been decided whether it applies retroactively.

"qualified or reasonably believed by parties to be qualified"

3. Art. 91, comment (c): Any member of the class of persons generally recognized as empowered to perform such ceremonies, whether or not properly registered to do so. b. So if a priest marries you, but the priest hasn't properly registered with the state, then the marriage was still legal as long as parties (objective standard) reasonably believed he was qualified. c. The priest will be subject to sanctions, however.

fault as related to ISS

3. Fault is completely irrelevant in ISS a. Purpose of ISS is to maintain status quo until divorce relative to art. 98 duty of support, so fault has no bearing b. You can get ISS even if you are at fault *cannot get final periodic support if at fault, but interim doesn't matter *fault can include cruel treatment

longevity of FPS

3. May be permanent a. Until death or remarriage

Why people generally don't file for fault based divorce even when fault applies:

3. More expensive to do fault-based a. Have to prove adultery in court b. Even for felonies, you have hearing 4. Major reason=time-based a. In so many cases it is quicker to get a no-fault divorce b. Criminal sentence (fault based) is ordinary proceeding c. No-fault divorce is a summary proceeding i. Have to wait time period ii. Once time lapses, get divorce approved in 10 days after filing

judicial modification

3. Possible for parties to agree to modification w/o judicial intervention

Duty of support

3. Support covers the necessities of life - food, clothing, shelter, etc. 4. Comment (c): The term "support" has been construed to include the cost not only of food, clothing, and shelter, but also of operating such conveniences as telephones, home appliances, and an automobile. In other words, the "ordinary conveniences of life" ii. One spouse can't bear all the support in the marriage iii. Can make some modification to money/property, but one spouse can't contract below the minimum and completely disclaim the duty to support

premarital counseling

3. What should be discussed: R.S. § 273 a. Discussion of the seriousness of covenant marriage b. Communication of the fact that a covenant marriage is a commitment for life c. Discussion of the obligation to seek marital counseling in times of marital difficulties d. Basically, discussing packet given by AG 4. Done by priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor.

public policy

4. But, unlike ISS, FPS is not about public policy a. ISS is about enforcing art. 98 duties b. Permissible to modify FPS b/c it has no relation to art. 98 duties i. No code article that requires former spouses to support each other after divorce ii. As long as it doesn't offend any public policy, its ok to contractually modify FPS *If FPS was based on need, we would allow everyone to get it and it wouldn't be based on non-fault of claimant

Abuse

4. Even though spouses have duty to take all reasonable steps to preserve marriage, which includes counseling, may not be reasonable if abuse is involved

fault of the other

4. Injured party must clearly demonstrate that a. She is free from fault and b. Has suffered damage (caused by breaching party's fault) i. Have to be free from fault to raise breach of promise to marry/breach of contract action ii. Otherwise, other party will raise your fault as defense to breach and win

Domestic violence suit for support

46:2131 et seq. - Family Violence Protection Act i. Allows spouse to get protective Temporary Restraining Orders. ii. Also allows judge to issue temporary support orders in cases of family violence so they can get out fast (no time limit)

considerations for FPS

5. Award is discretionary a. "May be awarded" b. "Court shall consider" i. Art. 112 lists the considerations for entitlement to FPS ii. This makes it clear, unlike in ISS, what the court should consider iii. These are MANDATORY considerations but the court may weight them how they wish iv. But, list is not exhaustive v. List is illustrative: "may include"

Extinction of child support obligation

5. CC art. 142: shall be terminated upon proof that it has become unnecessary b. So, default is child support obligation ends at majority or emancipation i. Marriage: emancipated ii. Emancipation by judicial order iii. Limited emancipation by notarial acts of parents

In rem: status

5. Don't need IPJ in divorce action, just need one party domiciled in forum—even π a. Don't need IPJ over ∆ b. Divorce is over status and courts eventually held that jurisdiction is where either π or ∆ is domiciled 4. As long as rendering state has jurisdiction based on domicile, other states must give divorce FFC

strategy to prolong interim support

5. How can you delay FPS and prolong ISS? a. Exam Strategy: i. 113(A) & (B) ISS terminates at judgement ii. 113(B) allows one to file for FPS & even if judgment of divorce is final, if FPS is still pending, then can continue to get ISS for an extra 180 days. iii. Lawyers will be sued for malpractice if they don't play this game. File for FPS as late as possible to extend ISS. b. If you file 102 petition, person seeking spousal support should request interim spousal support i. Then wait time for divorce ii. On last day possible (day you file the Rule to Show Cause), file request for final spousal support on that day iii. This will allow you to get extension

needs of the child

5. LA courts almost always say that parents have to pay child support that maintains standard of living child had during marriage/relationship

maximum child support obligation

5. Maximum: $40,000 a month a. After you reach the max of the guidelines, the court has discretion b. Courts can exercise discretion, but only to increase amount c. Can't extrapolate—just exercise discretion: set amnt at kids' standard of living when family was together

minimum child support obligation

6. Minimum: people who make $900/month and those who make nothing are treated the same—$100 a month in child support, no matter the number of kids

college obligation

6. No real child support for LA kids in college—will enforce parental contracts though

status quo

6. Rule with interim spousal support is to maintain status quo a. W's status quo was not working b. So, don't consider earning capacity i. Ct says its inappropriate to consider for this short-term period bc she doesn't have work history due to their arrangement of her not working

abuse victims for Interim spousal support

7. 113(C) Abuse victims automatically get ISS for 180 days after final judgment of divorce. a. so they don't even need to worry about the gaming strategy. b. This encourages abuse fault-based grounds for divorce that may not be legitimate.

community property regime considerations

7. Art. 159: termination of community property regime is retroactive to filling of petition upon which divorce is granted a. If you want to terminate regime early, chose 102 b. At judgment of divorce, it will go back to time of petition i. Rich spouse will want to end community property regime as early as possible ii. Generally, if you make less, you want to prolong regime as long as possible iii. If you make same amount, no need to prolong regime b/c you wont get anything out of it and you'll be liable for the others debts

final periodic support

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article. B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include: (1) The income and means of the parties, including the liquidity of such means. (2) The financial obligations of the parties; including any interim allowance or child support obligations (3) The earning capacity of the parties. (4) The effect of custody of children upon a party's earning capacity. (5) The 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 existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of domestic violence.

Grounds for legal separation

All fault and no fault based grounds for divorce PLUS these two fault-based grounds: 1. habitual intemperance 2. cruel treatment

additional rights/duties for covenant couples

All of art. 98 duties + (b) R.S. § 9:294—Spouses owe each other love and respect and they commit to a community of living. Each spouse should attend to the satisfaction of the other's needs. (c) R.S. § 9:295—Spouses are bound to live together, unless there is good cause otherwise. (d) R.S. § 9:296—The management of the household shall be the right and the duty of both spouses. (e) R.S. § 9:297—Spouses by mutual consent after collaboration shall make decisions relating to family life in the best interest of the family. (f) R.S. § 9:298—The spouses are bound to maintain, to teach, and to educate their children born of the marriage in accordance with their capacities, natural inclinations, and aspirations, and shall prepare them for the future. (h) (R.S. 9:291) Covenant couples have duty to go to counseling and take other "reasonable steps to preserve the marriage"

child support for life

An award of child support continues or shall be set with respect to any unmarried child who, whether institutionalized or not, is incapable of self-support and requires substantial care and personal supervision because of an intellectual or physical disability that is manifested before the child attains the age of majority. A disability under this Subsection shall not include substance abuse or addiction. a. This is for a permanently disabled child. b. More robust disability, like down syndrome c. Can only seek modification if parent is old, retired, can't work, etc.

juridical person

An entity to which the law attributes legal personality, such as a corporation. ii. 9:123 Legislature did this because they didn't want to call IVF ovum property—didn't want labs to arbitrarily destroy ova (i) Entity has to be 1. Organized (structure) (business form: LLC, partnership, etc.) 2. Management structure—authority on behalf of group 3. Possess some property (ii) These are the requirements for the law to afford legal personality

best interest of the child factors

Art. 134. Factors in determining child's best interest A. Except as provided in Paragraph B of this Article, the court shall consider all relevant factors in determining the best interest of the child, including: (1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration. (2) The love, affection, and other emotional ties between each party and the child. (3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child. (4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs. (5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment. (6) The permanence, as a family unit, of the existing or proposed custodial home or homes. (7) The moral fitness of each party, insofar as it affects the welfare of the child. (8) The history of substance abuse, violence, or criminal activity of any party. (9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody. (10) The home, school, and community history of the child. (11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. (12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party. (13) The distance between the respective residences of the parties. (14) The responsibility for the care and rearing of the child previously exercised by each party. B. In cases involving a history of committing family violence, as defined in R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132, including sexual abuse, as defined in R.S. 14:403(A)(4)(b), whether or not a party has sought relief under any applicable law, the court shall determine an award of custody or visitation in accordance with R.S. 9:341 and 364. The court may only find a history of committing family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.

art. 25 general rule

Art. 25—moment of live birth is when legal personality begins and terminates at death

conception (argue all 3)

Art. 26 Comment (b)—unborn child can be person even if its in test tube i. Suggests that conception is moment of fertilization, not implantation g. Art. 1474—for donation inter vivos, unborn child must be in utero i. Implantation is critical moment ii. Makes clear that fertilization isn't relevant—can't receive donations unless implanted RS § 9:123 i. An in vitro fertilized human ovum exists as a juridical person until such time as the in vitro fertilized ovum is implanted into the womb or at any other time when rights attach to an unborn child in accordance with law ii. Suggests legal personality conferred at fertilization, but at implantation you get other rights iii. So, natural personality not until implantation

exceptions where end of legal personality comes before death:

Art. 54—absent persons absent for 5 years 1. person with no representative in state, 2. whereabouts unknown, and 3. can't be ascertained by diligent effort. b. Once you have been absent person for 5 years, someone can go into court and have you declared dead (Art. 54) i. Upon petition by an interested person ii. Declaration terminates legal personality only; only terminates when someone requests a declaration iii. Exception b/c it's a possibility that legal personality may terminate before death 2. Art. 30—presumption of death i. Presumed dead when you disappear under circumstances that death seems certain and body can't be found ii. Used in disasters --Art. 30, comment(c) only applies to those servicemen that are DECLARED missing.

marriage

Art. 86. Marriage is a legal relationship between a man and a woman that is created by a civil contract. (1) Marriage forms separate patrimony of assets and liabilities

gay marriage article now overruled by Obergefell

Art. 89: persons of the same sex may not contract marriage with each other.

proxy marriage

Art. 92: A marriage may not be contracted by procuration. i. Procuration= absent party represented by another person ii. Since marriage is a contract, can't you send an agent like in other contracts? No. c. Art. 87: says you need free consent of parties v. In LA, we think marriage is a truly personal transaction, which is why this marriage can't be perfected by procuration

article 136(B) grandparents

B. A grandparent may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. Before making this determination, the court shall hold a contradictory hearing as provided for in R.S. 9:345 in order to determine whether the court should appoint an attorney to represent the child. 1. Carrol's problem w/ 136(B): "any time, best interests of child, grandparents"- too close to unconstitutional Troxel

PUM exception

BUT the exception in art. 96(2) states that when a PUM is the defect, civil effects end when the innocent spouse remarries or when declared by the court --this policy prevents the spouse with the PUM from screwing the other spouse by revealing they were never married at opportune times

Breach of positive duty of fidelity

Breach of positive duty of marital fidelity is considered to be cruel treatment. b. Cruel treatment may be considered fault that would preclude an award of final periodic support c. Cruel treatment is still grounds for immediate legal separation in a covenant marriage

res judicata

Can't collaterally attack when you already litigated or had the chance to litigate the domicile issue *Can't participate AT ALL to collaterally attack

in the context of spousal support

Cannot get spousal support (SS) if you are an adulterer

covenant marriage

Distinction: much more difficult to get in to and out of (a) Premarital counseling and counseling before divorce (b) Done by religious officials chiefly (c) 2 years wait for divorce (to help curb divorce rate) (4) Governed by RS 9:272-276 (5) Purpose is largely religious *spouses can't abandon marital domicile

waiver

Dubroc case: duty of support is matter of public policy; you can't waive your duty to pay child support and you can't waive another's duty for child support; but you can waive your duty to collect child support i. Has to meet requirements of conventional obligation—contract ii. Waiver has to foster continued support of child (dad takes the child and mom waives the obligation to pay; but not allowed if mom has the kid and waives) *can be implied contract if no formal agreement was made but no suit was brought

minor children of the marriage

Effect: 6 months waiting period if none, and 1 year if there are *If they are minors: 102 at the time of the ruling, and 103 at time of petition (both at the end of the process)

note

Everything thus far is required and if not met then the marriage is a nullity; everything after this is required but the consequence is not nullity, it may be penalties to officiant but there is still a perfectly valid marriage

child support extension to 22

Extension to maximum age of 22 if disabled & still in secondary school a. RS § 9:315.22(D): an award of child support continues with respect to any child who has a developmental disability until he attains the age of 22, as long as the child is a full time student in secondary school. The primary domiciliary parent or the legal guardian is the proper party to enforce an award of child support pursuant to this. b. Mild disability, like dyslexia

article 3506 pt. 12: family

Family in a limited sense, signifies father, mother, and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another, and includes the servants of the family. It is also employed to signify all the relations who descend from a common root. this definition is not durable to withstand the test of tim

Current law

Genetic Gestational Carrier- R.S. 9:2719 1. Contract for a genetic gestational carrier; nullity A contract for a genetic gestational carrier shall be absolutely null. 1. enforceable only if it is in writing and signed by the gestational carrier, her spouse if she is married, and both of the intended parents. 2. enforceable only if approved by a court in advance of in utero embryo transfer 3. No person shall enter into a gestational carrier contract for compensation 4. No person shall enter into a gestational carrier contract that requires the gestational carrier to consent to terminate a pregnancy resulting from in utero embryo transfer for any reason, including a prenatal diagnosis of an actual or potential disability, impairment, genetic variation, or any other health condition or a discrimination based on gender, or for the purposes of the reduction of multiple fetuses. Any such provision in a contract executed in the state of Louisiana or any other state shall be absolutely null and unenforceable in the state of Louisiana as contrary to public policy. a. Continues to prohibit traditional surrogacy b. Permits/regulates gestational surrogacy

lump sum alimony

Has been deleted since 1998

Pregnancy

Husband files a petition for divorce. On 180th day, there is a child in the woman's tummy. iii. Carroll says we don't need an answer—don't need to say anything else because as long as born alive, we retroactively allow/confer personality back to conception iv. But it is for whatever "relates to the child's interests" v. There is a child of the marriage if its in utero and if its born alive b/c of retroactive conferral of personality to conception for whatever relates to its interests vi. Cases on child's interest generally deals with property vii. So, question is: does time for divorce relate to child's interest? viii. NEED TO MAKE ARGUMENTS BOTH WAYS

art. 27 person

It's a subject/being that holds rights/duties (repository); humans are considered to be natural persons with juridical personality

cases to note equality percentages court said are considered shared custody

Janney 55/45 Westcott 63/37 Broussard 43/57

(xii) Effect of custodial arrangement

Joint Custody a. Worksheet A (for sole custody too) b. Both parents have frequent and continuing contact 2. Shared custody (worksheet B) ii. Only has meaning in child support cases vi. §9:315.9: Shared custody—means joint custody order in which each parent has physical custody of the child for an approximately equal amount of time

"registered with the state"

LA RS 204: Requirements for registration for officiants other than judges or justices of the peace (i.e, religious officials). i. File affidavit with clerk of court saying name, denomination, and intent to perform ceremonies.

participation of a "qualified" celebrant

LA RS 9:202: Priest, minister, rabbi, etc. who is authorized by the religious authorities to perform marriages and registered with the state to perform marriages i. Also, a state judge or justice of the peace. Requirements: 1. Authorized to perform marriages 2. Registered w/ state

termination of marriage art. 101

Marriage terminates upon: a. Death of one spouse b. Divorce judgement granted, (not simply filed!) i. (note: don't forget community property is retroactive to date of filing) c. Declaration of nullity if relatively null d. Issuance of court order authorizing spouse presumed dead and other can remarry i. This is different from declaration of death e. Absolute nullity (not in code) i. Void ab initio ii. Don't need court declaration

Positive duty of fidelity

Mutual obligation to submit to each other's reasonable and normal sexual desires. iii. No real definition of this but, absent some really good excuse, persistent refusal for substantial period of time without justification is a breach of the duty iv. Jurisprudence says the duty at least requires the spouse to consent to sex "sometimes" (absent some good excuse)

intent

Need intent of just one spouse ii. Don't need both party's intent iii. All states allow unilateral no-fault divorce iv. One party needs intent of permanently severing marital relationship h. But, you have to communicate intent (and prove it) to other spouse at some point for separation to become "living separate and apart" *need an outward manifestation of intent/communication you want out of the marriage

is sex necessary for reconciliation?

Not if they resumed life in common as in they were having sex before a. Sex no longer absolute component

Relatively null marriage cause:

ONLY ONE: Lack of free consent (duress and incapability of discernment) (a) Art. 95: A marriage is relatively null when the consent of one of the parties to marry is not freely given. (i) Such a marriage may be declared null upon application of the party whose consent was not free. (ii) The marriage may not be declared null if that party confirmed the marriage after recovering his liberty or regaining his discernment

Earning capacity

Present ability to earn of both parties

death

RS 9:111 "Irreversible cessation of spontaneous respiratory and circulatory functions" Can't breathe/heart stops b. "If artificial means of support preclude this finding, a person is considered dead when a physician says he has experiences an 'irreversible total cessation of brain function' Death will have occurred at the time when relevant functions ceased." (not when death is announced )

Abuse in the custody context

RS §9:364: presumption that no parent with history of perpetrating family violence shall not be awarded sole/joint custody ii. 1. Supervised visitation if court finds family violence iii. 2. Extreme cases where there's no visitation until psychological counseling if there's clear/convincing evidence of sexual abuse v. Need multiple incidents of family violence (pattern) vi. Or, if its only one, serious bodily harm with single incident vii. Person who alleges abuse has burden b/c of serious consequences

(h) Suspension for secretion of child

Secretion Rule: §9:315.23—if one joint custodial parent or his agent is intentionally secreting child with intent to preclude other joint custodial parent form knowing whereabouts of child sufficiently to allow him to exercise rights/duties as joint custodial parent, latter may obtain from court order suspending or modifying obligation under child support judgment. Such circumstances aren't defense to action for failure to pay court-ordered child support or action to enforce past due support 1. Secretion=intentionally hiding child 2. This is an exception to general rule that you pay, regardless of time with child

Adultery

Some physical act beyond kissing and hugging; oral and hand to crotch touching are considered adultery No cases on cyber relationships yet

visitation art. 136

Subject to the post separation family violence relief act, a parent not granted custody or join custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. 1. Parent that has abused child has some visitation, but supervised 2. Unless sexual abuse and then you can lose visitation rights

domestic violence victims

There is no cap on the award for FPS (no 1/3 restriction) *so, this is an incentive to report domestic violence, but also a disincentive because abuser will no have no ability to pay if he's in jail -FPS for abuse victims is no longer mandatory

Abandonment of action

a divorce action instituted under art. 102 is abandoned if the Rule to Show Cause provided by that article isn't filed within 2 years of the service of the original petition or execution of written waiver of service of original petition

10. Willingness and ability to facilitate relationships

a. "Friendly Parent" provision b. Good parent understands that the child needs love from both parents c. Problem in adultery cases for non-adulterer spouse bad mouthing parent d. Not only is there a passive duty to refrain from bad mouthing e. Active/affirmative duty to go out of your way to foster that relationship between child and parent f. It's a leg up in custody cases if parent is mature enough to understand child needs both parents and is willing to facilitate that relationship

Goal of temporary support

a. "Maintain the status quo" (exam lingo) b. Keep them in the same position as in marriage b/c still technically in marriage c. More than just keeping them out of necessitous circumstances 6. Assertion of article 98 duty, even in marriage 7. Precise amount of support is measured by a. Need b. Standard of living maintained during marriage

2. Capacity and disposition to give love, affection, spiritual guidance, education, rearing

a. 1st part: capacity to give love, etc. i. Speaks to what the party could do if given the opportunity ii. But, sometimes party has not yet been given the opportunity iii. Looks to future b. 2nd part: to continue education, rearing i. Rather than capacity/disposition ii. Want to know which parent can continue what child has iii. It's bad to change rearing path the child is on iv. Presumption is that what's going on now is good and don't want to upset what child already has v. Child is already in a tumultuous situation and we want to promote stability

duration

a. 96(1): "for as long as that party (in good faith) remains in good faith" i. This is the general rule ii. Stop when you acquire honest or reasonable belief that there's a defect b. So, effects end when your subjective or objective belief ends

12. Previously exercised responsibility

a. About fostering stability based on what's been done in the past b. Comment (i): what this factor gets at i. Who bathes child ii. Who feeds child iii. Who puts child to bed iv. Who makes extra-curricular decisions v. Daily duties of parenthood c. This factor favors the care-taking parent d. If the parent has to get a baby-sitter, this may go against this factor

7. Mental and physical health

a. About stability b. EX: mom with terminal cancer/dad w/ heart disease probably wont get custody c. Now, used by courts to avoid making moral fitness determination i. Smoking used to be considered a negative for moral fitness ii. But now courts say it's about physical health iii. Easier because there's no need for court to make a moral determination and everyone knows smoking is bad for your health

6. Health, age of parties

a. Affects both need and ability to pay i. Relates to earning capacity of payee and whether payee can "jump back" into the working world ii. Also relates to payor's ability to pay b/c old age and illness makes it more difficult for party to pay ii. Permanent FPS may be most appropriate where party is too old/ill instead of term FPS

Gestational surrogacy

a. Another woman, not surrogate, gives her egg (could be the intended mother or someone else) b. Surrogate is IVF with embryo from another woman/man c. Surrogate is just carrier (gestational carrier) d. Another intends to be the mother and is biologically related to child

Interim spousal support

a. Art. 113 Upon motion of party or when demand for final spousal support is pending, court may award a party an interim spousal support allowance based on needs of that party, ability of other party to pay, and standard of living of parties during marriage b. May = discretionary *generally terminates upon judgment of divorce

Death of either parties

a. Art. 115 b. Automatic extinction of SS obligation

Third party custody

a. Art. 133: if award of joint/sole custody to either parent would result in SUBSTANTIAL HARM to child, court shall award custody to i. Another person with whom child has been living in wholesome/stable environment ii. Otherwise, any person able to provide adequate/stable environment

(iii) Close relatives

a. Art. 90: the following persons may not contract marriage with each other: i. Ascendants and descendants ii. Collaterals within the fourth degree, whether of the whole or of the half blood or adoption b. The impediment exists whether the persons are related by consanguinity (=by blood) or by adoption. c. Exception: Nevertheless, persons related by adoption, though not by blood, in the collateral line within the fourth degree may marry each other if they obtain judicial authorization in writing to do so

parties in whose favor the effects run:

a. Art. 96(1): sets out that civil effects flow only to party contracting marriage in good faith i. No civil effects for a party in bad faith (Marinoni) ii. But if both spouses are in good faith, effects can flow in favor of both. But this is rare. iii. They both have to have honest/reasonable belief b. Art. 96(3): A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties c. Art. 96(4): A purported marriage between parties of the same sex does not produce any civil effects.

Effect of child custody on earning capacity

a. Child support is a consideration under financial obligations b. Custody limits your ability to work, thereby reducing your earning capacity iii. Age of child will play a larger role in determining FPS iv. Most appropriate to increase FPS award when minor child involved

proving adultery/negative duty of fidelity:

a. Circumstantial evidence will suffice, otherwise, adultery would never be proven. To prove breach of negative duty of fidelity, circumstantial evidence is sufficient. BOP: proponderance of the evidence *A party cannot confess adultery i. We want reconciliation ii. Otherwise, we would have divorce on demand

1. Love, affection and other emotional ties

a. Considered to favor mother, especially when child is young b. In LA, we look at this without regard to gender

5. Permanence, as a family unit, of custodial home

a. Considers things like is mom living with a boyfriend b. "Home" as the family unit situation c. "Proposed custodial home" i. Guessing as to stability of proposed home ii. Future event iii. Time separate and apart before divorce gives couple and family some time to see stability of home and effect of divorce

Child's reasonable preference

a. Court has to find that child is of sufficient age to express a preference b. No-bright line age rule i. Cases are all over the place ii. Comment (g) has different cases iii. One case says 6 is too young to express a preference, where another case says 5 years and 7 months is ok c. Generally, 9-10 ok d. Preference has to be reasonable, not just any preference f. Courts can do in camera hearing or ask in court i. But, no matter the method, evidence shows that asking child is psychologically damaging ii. Legislature wont remove this provision, which some people advocate for

8. Child's home, school, community history

a. Court's sometimes consider abuse here b. Child's history is relevant i. Ex: child is abused by male uncle & has trust issues w/ men ii. May lead court to award mom custody b/c of kid's history c. Will kids have to move? Change schools?

scientific evidence

a. DNA b. Blood testing

6. Mechanisms to encourage parental agreement

a. Divorcing Parents Seminar (9:306) i. Includes discussion of effect of divorce in future on kids ii. Education about custodial needs of kids in future b. Mediation (9:332) i. Court can order mediation as long as there's a pending custody case ii. Wide discretion for courts to order it iii. Case stays in mediation for 30 days iv. If they come to agreement, court approves vii. If this doesn't work, courts make it seem like they're screwed b/c of high costs c. Costs of trial i. Seminar fee ii. Mediation fee iii. Attorney fee iv. Mental Health Evaluation (9:331): parties can ask for mental health evaluation of other spouse by psychiatrist, psychologist, social worker for good cause shown; courts almost always allow it when requested it; kids usually evaluated as well v. Expert fees vi. Drug testing (9:331.1): can get drug testing for other spouse for good cause shown; court errs on side of order test vii. High costs serve as mechanism to facilitate agreement, and probable one of the most effective, b/c parties can never be sure what court will determine at trial

"Any relevant factors"

a. Do facts of case suggest that factor is relevant b. Discretionary and fact intensive i. Almost never overturned on appeal ii. Abuse of discretion standard of review

7. Duration of marriage

a. Doesn't matter in ISS because goal is to maintain status quo during marriage, no matter how long the marriage ii. "Habituation to dependency" iii. Looking at dependency of claimant on payor spouse during marriage iv. Longer the marriage, more dependent the claimant, so larger the award

Stier v. Price (La. 1948)

a. Error was that she married man with dementia. Apply 2 prongs from 1949: b. Court rejects wife's argument that her consent to marriage was vitiated because she didn't know her husband was insane. c. Art. 93 i. Had phrase that said "mistake respecting the person" was a grounds for nullification of the marriage ii. About qualities of person e. Court says dementia is about character

Income, means (liquidity of parties)

a. Explicit authority to look at capital assets in assessing need b. Parties are both considered in determining FPS

Fault as related to FPS

a. Fault is absolute bar to claiming FPS b. Party at fault CANNOT get FPS c. Most important consideration for determining entitlement to FPS b. After petition for divorce is filed, fault is not considered i. Only period of time in which fault is considered is BEFORE petition is filed ii. There's still adultery after filing of petition, but it's preceding termination of marriage, so won't preclude spouse from getting FPS iii. This standard only applies to FPS, not for divorce grounds!!! i. Payor's fault is irrelevant

3. Capacity and disposition to provide food, clothing, medical care, other material needs

a. Favors wealthy parent b. Parent with income c. Doesn't favor the-stay-at-home mom

Time period restrictions

a. General rule i. "Pendente lite" ii. Interim spousal support terminates when divorce is final b. Exception: if claim for final spousal support is pending at time of divorce judgment, interim spousal support award terminates: i. Upon judgment for/against final spousal support OR ii. 180 days after divorce judgment iii. Whichever occurs first iv. This is an exception that allows you to get ISS for longer period than general rule c. May be extended beyond 180 days only for "good cause shown" d. Once court rules on FPS, general rule applies e. So, ISS ends

documentary evidence

a. Hospital records b. Birth certificate (including formal/certain informal acknowledgement)

11. Distance between residences

a. Impacts who gets custody and how much b. If 5 miles apart, its easy and court can do whatever it wants with regard to custody d. Sometimes its nearly impossible for court to award joint custody with long distances

4. Continuity of stable, adequate environment

a. Important when we're thinking about taking the child out of home/school/losing friends b. Actual environment i. Home ii. Social structure iii. School c. This is why there is usually a fight over the family home during divorce i. Familial environment ii. Benefit when assessing custody b/c likely want to leave kid in family home

(iii) Other Factors

a. Inability of parents to get along = can't grant frequent custodial exchanges b. Child care assistance i. One case where father worked and had to get babysitters ii. Mother didn't work and had family in town iii. Looks at who cares for child when parent isn't around 3. Includes any factor that is relevant to the best interests of the child, and can include anything

Testimony of witnesses

a. Including mother's testimony d. Mom's testimony alone can be sufficient if fact-finder thinks she's credible

Self-employment income

a. Income - ordinary/necessary expense = self employment income d. Gross income means gross receipts minus ordinary AND necessary expenses required to produce income, for purposes of income from i. Self-employment ii. Rent iii. Royalties iv. Proprietorship of business v. Joint ownership/partnership/closely held corporation v. Necessary if there is a need for them to maintain business operations

8. Tax consequences to both

a. Income to recipient—tax burden b. Deduction for payor—tax benefit c. Higher award, greater the tax consequences

Additions: child care

a. Net child care costs i. § 9:315.3—net child care costs shall be added to basic child support obligation; determined by applying federal credit for child and dependent care expenses provided in IRS form to total/actual child care costs ii. This is mandatory iii. Court not entitled to discretion

6. Moral fitness

a. Only insofar as it affects the welfare of the child b. Things that cast doubt on moral fitness i. Alcohol/drug abuse ii. Sexual promiscuity iii. Tabaco use (some cases say smoking may have impact on moral fitness/could kill you, so its bad for the kids) c. Comment (f) indicates that this is not about norm shaping ii. Simply care about how moral fitness affects children iii. So, sexual promiscuity is only a problem if the kids witness it—court doesn't care if you are a slut g. But, morality is a fact-based question, and the judge can impose his own views about morality

payment

a. Party without legal custody/ non-domiciliary parent shall owe his total child support obligation as money judgment of support to custodial domiciliary parent

who can raise a defect in marriage?

a. Relative nullity: only raised by the party i. Incapability of discernment ii. Duress b. Absolute nullity: Raised by anyone, even the state

"constantly refuses to return"

a. Requires an attempt from other party to get you back b. Constantly means repeated requests to return 5. Persistent refusal to return WITHOUT LAWFUL CAUSE or JUSTIFICATION

Traditional or genetic surrogacy

a. Surrogate is artificially inseminated with sperm that fertilizes her own egg b. Surrogates egg is used so she is biological mother of child c. But, she's not the intended mother i. Plan that she'll relinquish child—she agrees to this ii. Someone else will parent child

Rule to Show Cause

a. This is what makes divorce final b. Petition is just a time marker

Considerations to decide between 102/103

a. Timing (103 is ordinary proceedings and takes longer; 102 is a summary proceeding) b. End of community property regime (ends at filing of petition which is at the beginning of time period for 102) c. Availability of incidental relief (art. 105) i. Available only when petition of divorce filed (so earlier for 102)

marriage license

a. Valid for 30 days b. Then it expires 2. 72-hour waiting period before entry into marriage a. Want couple to ponder ramifications of marriage ceremony b. But, dangerous to nullify marriage for technical defects c. So, marriage still valid if you violate this rule

5. Time needed for education, training, job

a. What spouse could earn with some training

5. Unemployed or underemployed party

a. § 9:315(C)(5)(a) Income means—actual gross income of a party, if the party is employed to full capacity b. But it's the potential income of a party, if the party is voluntarily under or unemployed (b) c. Not considered unemployed or under employed if absolutely unemployable or incapable of being employed—disabled—or if the party is unemployed through no fault/neglect of his own—like b/c of tough economic times

3. Subtractions: child income

a. § 9:315.7: A. income of the child that can be used to reduce the basic needs of child may be considered as deduction from basic child support obligation B. provisions don't apply to income earned by child while full-time student, regardless of whether income earned during summer/holiday break C. doesn't apply to benefits received by child from public assistance programs, including Family Independent Temporary Programs, food stamps, any necessitated program D. social security benefits received by child due to earnings of parents shall be credited as child support to parent upon whose earnings record is based, by crediting amount against potential obligation of parent E. if there's a child support arrearage, court shall grant evidentiary hearing before arrearages is reduced based on lump sum payments received by child *discretionary i. Reduction of child support obligation doesn't apply to income of child while he's a full time student ii. Regardless of whether such income earned during summer or holiday break

In globo award

a. §9:315.22(b): when there's a child support award in globo for 2 or more children, the award shall terminate automatically and without any action by obligor when youngest child for whose benefit award was made attains age of majority or is emancipated relieved child of disabilities attached to minority b. No automatic reduction as each child reaches majority c. Burden is on the payor/obligor to seek reduction/modification as kids age out d. There's an automatic termination only when youngest child reaches majority e. So, when first child reaches 18, dad has to seek reduction for child reaching age of majority i. Court will always award this for material change in circumstances—majority ii. Court will recalculate based on table

Reconciliation

affirmative defense to a 102 claim i. Art. 104: cause of action for divorce is extinguished by reconciliation of parties ii. Only defense to 102 divorce, except for problems with process iii. Have to prove that couple lived together continuously—if lived together continuously, no reconciliation Burden is on the defendant to prove reconciliation by the burden of persuasion

covenant marriage requirements

all of those included in traditional marriage PLUS

i. Consanguinity

any blood relationship; ii. Art. 90 doesn't cover relationships by marriage, so no restrictions for relationships by affinity (former husband of your mom or uncle by marriage/no blood)

domicile

art 28: place of habitual residence Fed: place where you reside and intend to remain indefinitely

Filiation article 178

art. 178: filiation is the legal relationship between a child and his parent 2 types: biological and adoptive

technical reasons do not nullify

art. 91(c): prevents us from nullifying marriages for technical reasons beyond control of spouse i. Lots of little things can go wrong, especially with registration ii. Comments also say that we look at whether person is within a class of persons we generally recognize as being empowered to perform such ceremonies, whether or not they are properly registered to do so iii. This is a saving method

Reconciliation applies

as a defense in fault and no fault divorce; for no fault, a. 102: extinguishes COA for divorce, so petition is invalid b. 103: extinguishes time, so you have to start time over

how miles are measured

as of Holley case, the 75 mile limit is "as the crow flies" not driving mileage; this is the only consistent mathematical distance

living separate and apart 102/103

b. 102: period of living separate and apart is after filing of petition c. 103(1): period of living separate and apart is before filing of petition *Art. 104: reconciling for even 1 day starts the clock over.

(ii) Prerequisites of putative marriage doctrine application: good faith

b. 96 comment (d): honest and reasonable belief that there exists no legal impediment to marriage 2. Burden of proof a. General Rule: presumption i. Good faith of entrance into marriage is presumed ii. Burden of proving bad faith is on the person attacking the presumed good faith iii. So if there's doubt, burden of proving contrary rests on party who alleges it

Fault grounds for FPS

b. Adultery c. Conviction of felony and sentence to hard labor/death d. Cruel treatment or habitual intemperance which renders common life insupportable (Allen: persistent verbal abuse, AKA nagging, or persistent refusal of sex). Remember, we don't care about cruel treatment as grounds for divorce, but we do care about it for FPS. e. Public defamation (rarely raised) f. Abandonment (leave matrimonial domicile without justification and constantly refuse to return) g. Attempt against life of spouse h. Being charged with felony and having fled from justice i. Intentional nonsupport of a spouse who is in destitute or necessitous circumstances

The negative duty of fidelity

b. Art. 98, comment (b): "The term 'fidelity' refers . . . to the spouses' duty to refrain from adultery." i. Adultery, of course, is grounds for immediate divorce in LA (one of only two such grounds). Don't have to wait any time for divorce.

fraud

b. Court says fraud is basically induced error c. Misrepresentation of fraud leads to error e. Doesn't matter how awful spouse is—divorce is your remedy 2. Now we have no-fault divorce a. Makes sense from policy perspective to reign in nullity grounds b. Nullity for only most serious situations 3. Better argument for fraud in covenant marriage case a. Spouses have to file sworn declaration that they've shared everything that could destroy marriage i. If not, clear fraud from suppression ii. Failing to disclose would thus constitute a lie (thus implicating fraud), rather than an omission b. And because divorce is more difficult to get --because more weight is given to disclosing in this context, there is more basis for a fraud claim

Addition: health insurance premiums

b. Health insurance premiums i. § 9:315.4—court may order one of the parties to enroll or maintain an insurable child in a health benefits plan, policy or program. In determining which party should be responsible for such insurance, court consider each party's individual/group/or employee's health insurance program, employment history, and personal income and other resources. Cost of health insurance premiums incurred on behalf of child shall be added to basic child support obligation ii. Kind of discretionary/kind of mandatory iii. Court may order—discretionary (whether to award one party to cover child) iv. Court shall add—mandatory (if court does, mandatory to add on premium) v. So, if parent gets good health insurance at work, probably going to order that parent to cover kid

Need

b. If a spouse is capable of his/her own support then there is no need. i. Income ii. Earning capacity iii. Liquidity (even for a fancy house- but the application is different) iv. Exhaustion of capital resources

credit

b. If under joint custody order, person ordered to pay child support has physical custody of child for more than 73 days, court may order credit to child support obligation. Day is determined by court—no less than 4 hours of physical custody with child is a day i. Amount of time child spends with person to whom credit will be applied. Court shall include continuing expenses of domiciliary party ii. Increase in financial burden on person to whom credit will be applied and decrease in financial burden on person receiving child support iii. BIOC and what's equitable to parties e. BOP on person seeking credit i. No credit for visitation unless its extraordinary visitation

8. Definition of living "separate and apart"

b. Jurisprudence requires them to live in separate abodes d. Reason for requirement i. In living separate and apart, you will see the reality of divorce ii. It's a cooling off period to discourage divorce

financial obligations

b. Just looking at the claimant or the payor's income is not fully representative of the financial picture i. One party may be less able to pay b/c of community debt obligations ii. Court more likely to reduce FPS if it's a community debt but less sympathetic if it's not community and if it's an obligation prior to the marriage iii. Still, not a bright-line rule c. Look at obligations of BOTH parties d. Relevant considerations—Art. 112 comment (b) i. Debts ii. Attorney's fees (mentioned in comments) iii. Child support obligations e. Court not required to reduce for every separate debt, but they must consider them f. Looking at entire financial picture

legal gender changing

b. La. Rev. Stat. § 40:62: Any person born in Louisiana who has sustained sex reassignment or corrective surgery which has changed the anatomical structure of the sex of the individual to that of a sex other than that which appears on the original birth certificate of the individual, may petition a court of competent jurisdiction as provided in this Section to obtain a new certificate of birth.

direct payments subtracted

b. Minus any court ordered direct payments made on behalf of child for work-related net child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses i. If non-dom parent has to pay something to third party, subtract this from his monthly obligation

effects of putative marriage doctrine

b. PMD produces civil effects, AKA legal effects of legitimate marriage i. Succession rights ii. Right to child support iii. Right to alimony/spousal support iv. Legitimacy of children v. Insurance vi. Community property rights

Sole custody

b. Physically, it's not that different: could have every other weekend, alternating holidays and 2 weeks in summer. c. People rarely seek it d. Huge hurdle: clear/convincing evidence that it serves the best interest of the child e. Difference: Sole custodian has sole decision making authority f. Abuse of child—physical and especially sexual—will make bigger differences, especially with physical time between joint/sole custody

Per child award

b. Terminates automatically if award is for child individually—specific amount per child when the child reaches majority or is emancipated *for split custody cases d. §9:315.22(a): when there is child support award in specific amount per child, award for each child shall terminate automatically w/o any action by obligor upon each child's attaining age of majority, or upon emancipation relieving child of disabilities attacked to minority *automatic termination; no need to seek judicial termination ii. Usually don't have per child award—usually in globo if more than one child

Exception to inter-spousal bar to suit for support in the marital context:

b. You can sue for spousal support, child custody, child support i. But only while the spouses are separate and apart ii. THESE ARE THE ONLY THINGS YOU CAN SUE FOR DURING MARRIAGE c. Reason for this exception i. If they are already living apart, less likely were causing damage to family harmony ii. Basic purpose of the inter-spousal bar to suit is to keep the spouses together iii. If they are still living together, general rule of inability to sue still stands d. So, it's possible to get money for breach of this duty during marriage 3. R.S. 9:291 authorizes a court to order spousal support regarding a separated couple for an indefinite time period (until a spouse files for divorce)

duty to investigate

c. A person who learns that a potential spouse was previously married generally has a duty to investigate i. To determine whether the prior marriage was dissolved ii. But, failure to do so does not automatically preclude a finding of good faith. d. If there is any doubt, it is to be resolved in favor of good faith. (courts are more lenient in favor of good faith) *Education/sophistication issues are important in determining good faith

exception

c. Art. 26 Confers legal personality from conception if child is born alive for whatever relates to interest. Or if born dead, for purposes of its wrongful death. If child is born dead, it shall be considered never to have existed as a person except for whatever relates to its wrongful death.

parent remarries

c. Court can consider as income the benefits a party derives from expense-sharing ii. The only extent you can consider this is the extent that such income is used directly to reduce the cost of the party's actual expenses, i.e., what parent is saving by pooling incomes with new spouse

Also included Expense reimbursements or in-kind payments

c. If the reimbursements/payments are significant and reduce parent's personal living expenses d. Also things like company car, free housing, reimbursed meals

Joint Custody

c. Preferred over sole, unless clear/convincing evidence that it's not in the best interests of the child e. Implementation order i. 1. Sets out details of who gets kids when—physical custody ii. 2. Sets out which parent has legal decision making authority—legal custody f. Physical custody i. "Frequent and continuing contact" for both parents with child. Not 50/50!

dual gamete requirement

c. Requires both parents donate their gametes= "double gamete requirement" i. This prohibits same sex couples & possibly "infertile" heterosexual couples from using it... bc more likely a problem w/ eggs than womb *IVF where mom contributes egg and dad the sperm and the embryo is put back in mom is clearly allowed and clearly establishes material filiation bc she is the one who gives birth to her genetically related child

when obligor is incarcerated

child support is suspended if the obligor is incarcerated; this is because he would rack up $100/month minimum in arrearages and would end up back in jail for not paying - endless cycle; this is new and has not yet been enforced because it appears as though the legislature is rewarded incarcerated parents by skipping out on child support

Curole case

court usually deny relocation requests if the move would deteriorate the child's relationship with the other parent; There is a fundamental Constitutional right to visitation and to parent your child courts are more likely to award relocation with younger children because of the lack of substantial connections (sports, friendships) they have at original location

health insurance benefits

courts go both ways with regard to health insurance benefits and courts exercise great discretion in this area

Enforcement: income assignment order - the default

d. "In all new child support orders after Jan 1, 1994, that aren't being enforced by Department of Children and Family Services, the court shall include as part of order an immediate income assignment i. ...unless there's a written agreement between parties or the court finds good cause not to require an immediate income assignment" ix. Comes out of obligor's wages x. § 9:303(B)—obligor can argue against it if there's been no delinquency for 6 months, but if he becomes delinquent for even one month, court can issue automatic order xi. Good cause shown—mean for obligor with history of good payment/who has no reason or proof of delinquency xii. But, if there's any doubt of payment, court will award it

judges/justices of the peace

d. 203(A): Requirements of judges & justices of the peace i. Delineates geographic boundaries within which they can conduct marriage ceremonies. ii. Basically, judges and justices of the peace can only conduct ceremonies within the area of their jurisdiction/ where their authority exists. iii. EX: district judge w/in district; SC judge w/in state iv. Generally based on area to which you are elected

payor's new marriage

d. Art. 114 says subsequent remarriage of obligor isn't change in circumstance i. Remarriage is voluntary ii. Obligor's remarriage isn't enough alone to terminate award iii. He marries knowing about other obligation, so he's voluntarily taking on a new obligation

Delpit v. Young

d. But court says, under Delpit v. Young, "mistake of the person" only refers to mistake of identity, not mistake of character or qualities ii. Husband tried to escape marriage b/c he thought wife was virtuous iii. LASC rejected argument and narrowly interpreted "mistake respecting the person" iv. Mistaken identity, like you mean to marry twin A but you marry B instead a. Delpit effectually killed "mistake" defense by such narrowly interpreted language

(e) Party autonomy to contract (i) Stipulation on amount

d. LASC says no TC cant act as rubber stamper of parental agreement e. Purpose of child support obligation guidelines i. Not to augment/make too low ii. Want consistency/uniformity iii. This would undermine uniformity goal ii. Court has to determine if there's a reason for deviation iii. If there is, court has to find the grounds/give oral/written reasons on record/and say why the parental deviation is the correct deviation amount iv. This is rarely done

(i) Art. 184—except as otherwise provided by law: surrogacy

either traditional or gestational

Connivance defense

encouraging behavior for a fault based divorce; trying to set up your spouse to catch them in the act *Even if its true, if you encourage adultery, you can't use it as basis for divorce

traditional marriage

everything that's not covenant marriage; standard

Effect of shared custody

f. Two Effects: g. (1) Automatically multiply basic child support obligation (table number) (=makes it bigger) by 1.5 before dividing between parents i. § 9:315.9(2) if joint custody order provides for shared custody, basic child support obligation shall first be multiplied by one and one-half and then divided between parents in proportion to their respective adjusted gross incomes h. (2) credit for time spent with kid is automatic and based on percent of time with child

soldiers

for military deployment, unless a soldier disappears and not heard from again, he's not considered an absent person (If he just chose to stay in Iraq, that's not an absent person)

i) Effects of legal separation—only in covenant marriage context

i) Availability of all incidental relief except FPS because the marriage is not terminated ii) Cessation of personal effects (positive duty of fidelity is terminated and assistance) ** but there are duties that remain effective: - 1. negative duty (adultery) 2. Support iii) Cessation of patrimonial effects unless the couple reconciles (terminated community property regime)

h) Effects of divorce and nullity

i) Cessation of personal effects (all 98 duties) ii) Cessation of patrimonial effects (community property regime or whatever regime) iii) Lift of inter-spousal bar to suit iv) Loss of possibility of inheritance v) Removal of impediment to subsequent marriage

Split custody

i. Another distinction that's just in child support obligations and made up just for them but not in code ii. §9:315.10: means that each party is the sole custodial or domiciliary parent of a least one child to whom support is due (2) if custody order provides for split, each parent shall complete total child support obligation for child or children in custody of other parent, based on calculation for A (3) amount determined is theoretical obligation owed to each parent (4) parent owing greater amount of child support shall owe to other parent the difference between the two amounts as to the child support obligation

living together in traditional marriage

i. Art. 98, comment (f): Under this revision the spouses are free to live together as necessary to fulfill their obligation mutually to support, assist, and be faithful to each other ii. This comment implies that spouses in a traditional marriage do not have to live together to fulfill the art. 98 marital duties iii. Not an automatic a breach of duty of assistance if you don't live together iv. But, farther apart you live more difficult it is to fulfill duties

transportation

i. Discretionary add on ii. Idea: if mom lives in BR and dad in Dallas, and kids can fly, court can add this on iii. Divided based on percent of parental child support obligation iv. Spreading expenses between the two

split custody payment

i. Do worksheet A for each kid separately ii. Judicial compensation: offset, net the 2 out; greater obligation has smaller subtracted from it

duration

i. Duty to not commit adultery exists even while the spouses are living separate and apart ii. Duty to refrain from adultery lasts until the judgment of divorce iii. For purposes to sue for divorce, the parties can sue for adultery until judgment of divorce

exclusions from gross income

i. Extraordinary overtime ii. Child support received or benefits received from public assistance programs iii. Any monetary gift to domiciliary parent when objective is to supplement irregular child support payments from non-domiciliary iv. Any disaster assistance (ex: FEMA) *We exclude irregular income benefits - we want to create a final number that won't have to be updated and relitigated all the time

c. Troxel Case

i. Fundamental right of parents to be free from intervention in exercising parental authority in raising kids ii. Right of privacy—fundamental decision-making authority iii. Constitutional parental right to parent your child iv. Have to tread lightly in favoring non-parent over parent i. Fact-intensive & takes a lot to deprive parents of fundamental rights

marriages perfected elsewhere

i. General rule: LA accepts valid marriages legally perfected in other states/countries, unless it violates our strong public policy i. 3rd circuit case about cousin marriage ii. LA court recognized the marriage b/c it didn't violate our strong public policy iii. But gay marriage did violate our strong public policy

requirements for FPS

i. Need of payee ii. Payor's ability to pay iii. And "enumerated factors" are considerations in determining need/ability to pay

two prong test to prove adultery

i. Opportunity + intimate relationship = took advantage of relationship (adultery) ii. Intimate relationship= facts that can lead one to assume: emails, seen kissing, etc. iii. Combination of opportunity and intimate relationship leads court to presumption that spouse committed adultery b. Grounds for immediate divorce i. Traditional marriage Art. 103 ii. Covenant marriage (R.S. § 9:307)

n. Major decisions

i. School ii. Religion iii. Health care decisions—like treatment for major illness iv. No elaboration § 9:335 v. Significant decisions in life of child iii. Presumed that all major decisions made by domiciliary parent presumed to be in best interest of the child (BIOC) iv. Non-domiciliary has no rights with respect to minor decisions—domiciliary parents decide and these are not subject to review

a. R.S. 9:295 (Covenant spouses' obligation to live together)

i. Spouses in a covenant marriage are bound to live together, unless there is good cause otherwise. ii. The spouses determine the family residence by mutual consent, according to their requirements and those of the family

Exception: prior undissolved marriage

i. The presumption of good faith does not apply to a spouse shown to have a prior un-dissolved marriage ii. If you are seeking the putative marriage and you are the party with the prior un-dissolved marriage, you have to prove your good faith iii. The burden is on that spouse to show that he contracted the 2nd marriage in good faith.

d. Policy reasons for not applying community property retroactive date to that of filing date to matrimonial regime

i. We hope parties will reconcile ii. This why there's a waiting period for judgment of divorce

Modern Approach

i. With interim spousal support, and spouse has immediate ability to get income, should consider earning capacity (W has own business, but lately not working)

d. Other extraordinary expenses

i. § 9:315.6—By agreement of parties or order of court, expenses incurred on behalf of child may be added to child support obligation: (1) expenses of tuition, registration, books, supply fees for attending special/private elementary or secondary school to meet needs of child (2) any expense for transportation of child from one party to another (3) special expenses incurred for child rearing intended to enhance health, athletic, social, cultural development of child, including but not limited to camp, music/art lessons, travel, school sponsored extra curricular ii. 100% discretionary

confirmation/ratification of relative nullities

if you remain living with the spouse after finding out the marriage is relatively null, you confirm the nullity. BUT confirmation/ratification cannot cure absolute nullities

fault as related to FPS

ii. As long as recipient is free from fault, can get alimony iii. Payor doesn't have to be at fault

adoption exception

ii. Comment (e): court should consider whether policy of preserving family harmony (how grossed out people will be) will be advanced or impeded by proposed union iii. 1st cousins by adoption can go to court & ask to marry. The exception for this shows the policy concern of "inbreeding" by blood which has been disproven but this disproves the family harmony exception because marrying first cousins related by adoption would still cause family harmony issues --WDK the rationale iii. Purpose of marriage originally was to broaden family interest—union to join family/increase sphere of influence

domiciliary parent

ii. Courts usually designate one parent as having decision-making authority iii. When joint custody decreed, court shall designate domiciliary parent except when there's implementation order that says otherwise or for good cause shown i. Person with whom child primarily resides (so can't have co-domiciliary) ii. Theory is that there's only one iii. 1. Decision-making authority over all legal decisions iv. 2. Presumption of action in the best interest of the child

minors' capability of discernment

ii. Incapability of discernment does not equal minority—they just have to understand the consequences of the marriage ceremony iv. No bright-line rule on this→normally have to be 14+ v. But if 13, it is not necessarily a nullity vi. Only requirement for marriage is "capable of discernment"—so only a nullity if minor is NOT capable of discernment

children's code article regarding age to marry

ii. La. Ch. Code art. 1545: Special requirements for officiates to perform a marriage ceremony in which a minor is a party. Need written consent (from both of the minor's parents, or from whoever else has custody of him), and if the minor is below age 16, must also obtain written authorization from a judge exercising juvenile jurisdiction (so, need written consent of both parents, tutor, person with custody, or juvenile court, but if 16, need authorization from judge in parish where minor resides) BUT not a relative nullity without parental/judicial consent; only fines for officiant

live birth

ii. The old Spanish rule: child needs to be capable of living for 24 hours (LA eliminated rule) Birth just has to be live i. So long as child after delivered from womb cries or shows some sign of its existence, if only for a minute argue both

first family first theory

ii. Theory that the first nuclear original family should favored over the new bastard situation (olden days) -- You can't escape your previous obligation by taking on a new one, so we don't take away from the first family, but instead, we reduce income by the amount spouse is paying to first family d. This doesn't always work i. First family isn't always the first to go to the courthouse ii. Ex: mistress has child and sues for child support; wife finds out and divorces husband iii. Mom was technically the first family, but she suffers reduction b/c of bastard child

why do we discourage adultery?

ii. Traditional purpose of marriage is to procreate and produce offspring iii. Adultery may produce offspring outside marriage and it has consequences on state iv. The state cares if you produce children outside of wedlock. v. Research suggests that it creates societal problems b/c it creates sexual jealousy vi. The spouses, however, are treated the same for purposes of adultery. vii. If the state is concerned with intimate association/sexual jealousy then sex, oral sex, cybersex and touching are included as adultery viii. If the state is concerned with paternity, then sex and insemination and sperm donation are adultery ix. If we knew why we cared about adultery, we could better define it x. However, LA courts have never defined public policy against adultery

average low end of the spectrum joint custody arrangement

iii. At one parent's majority of time, but at the other's every other weekend, alternating holidays, and 2 3-week periods in the summer

Baby M case

iii. NJSC said you cant "rent the womb" and this is what everyone thought happened in surrogacy cases—people thought that in every surrogacy case it involved a poor woman renter her womb to a rich couple for money iv. Thought only desperate and poor women would do this v. Thought that surrogacy highlighted the power/class struggle ii. The real problem with this case was the fact that we would be forcing someone who is biologically related to the child to give up legal, parental rights to the child that is biologically hers vii. We will never force you to give up your child before birth or enforce an agreement you made before the child is born—cant give up these rights prior to birth when kid is biologically related to you

c. Extraordinary medical expenses

iii. Only mandatory if parties agree or court orders Extraordinary expenses are un-reimbursable medical expenses which exceed $250 per child per calendar year --100% discretionary

intent for reconciliation

iii. Party's subjective intent wont prevent reconciliation when other party not deceived (if other party is aware you're moving back in because of community property regime, still reconciliation)

child under 5 exception

it's not appropriate to attribute earning capacity to calculate gross income if parent caring for a child under 5 i. Otherwise, this would penalize parent who decided to stay home with young child under 5. (9:315.11) *Note, if the purpose of this exception is to spend time with the child, having the kid taken care of by a babysitter undermines this; a 2009 case said this provision does not apply if the child is in daycare

term FPS

iv. 112(B): court considers factors in determining amount and duration—the "and duration" language indicates that term FPS is acceptable v. Court says rehabilitative alimony is desirable award b/c there's some dependency formed in marriage and this helps spouse help themselves i. Enough to get the spouse back on feet ii. But idea that support shouldn't last forever *strong movement away from FPS and toward all term limited support

Availability of incidental relief

iv. Allows you to request custody/visitation determination, support of minor child, spousal support, injunctive relief, use/occupancy of home/use of community movables/immovables, use of personal property v. But, inter-spousal bar to suit exceptions under R.S. § 9:291 you can sue for custody, child support, spousal support vi. So if you need that judgment, it's irrelevant if its 102 or 103 vii. But if you need anything else, you need 102 divorce because filing of petition starts proceeding of divorce

Hutson case

iv. LASC creates exception to Hutson BOP in adultery cases v. Rationale is that W will likely gripe b/c of adultery vi. But, W wouldn't get spousal support b/c H committed adultery vii. Rule: payor has to meet initial burden viii. If W doesn't commit adultery, difficult for payor to prove such bad behavior to show fault

prescriptive period to bring arrearage child support claim

iv. longer prescription for arrearages—5 years for spousal support, 10 for child support v. This is a long time—shows that state wants you to get the child support money

earning capacity

look at the market value of someone in her position would make via expert testimony and attribute that amount

lump sum for abuse victims

lump sum awards are usually ok with domestic abuse victims, but not otherwise

good faith test

memorize: Test for good faith in putative marriage: honest/reasonable belief that marriage is valid and there's no legal impediment i. Reasonable belief is objective ii. Honesty is subjective iii. **You have to believe you are entering into valid marriage

unmarried straight couples' recognition

not addressed by Ob: A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

Grounds for deviation

not in BIOC or inequitable to the parties (like a disability)

Article 136 applies to:

only 1. non-married parents or 2. non-cohabiting in the manner of married persons parents or 3. parents who have filed a petition for divorce here, grandparents only have to prove BIOC; relatives have to prove extraordinary circumstances

deviation by agreement of parties

parties can only make their own support agreement if the court does calculation and deviates to that exact number based on the BIOC and inequality to the parties

collaterals

persons who share a common ancestor, but are not ascendants or descendants *4th degree or anything closer is not allowed unless related by adoption and no blood

when the clock starts for separation

physical separation + intent to sever relation

h. Family violence

physical/sexual abuse against one parent or child, but not negligent injuring or defamation i. 1 incident w/ substantial bodily harm or more than 1 incident k. Clear and convincing evidence to deprive parent of visitation rights sole custody really only seen for abuse or drug use, but even then it's not necessarily final

causation

relevant evidence linking the breach of promise to marry to actual damages suffered (medical symptoms, therapy, etc.) -must show causation of how this was breaching party's fault (mostly it can be explained by other causes)

Divorce jdx: Full faith and credit for another state's judgment

requires State to recognize divorce judgment by another state 3. Judgment in first state must've been valid (ii) No congressional legislation laying out divorce jurisdiction 1. Jurisdiction to render divorce is based on DOMICILE 2. Domicile is the critical inquiry

ability to pay

same as spousal support; net income etc.

FPS definition of fault

serious fault which is the cause of the marriage's dissolution and is serious enough that it would have been ground for divorce under the old grounds for legal separation, under the repealed civil code articles -serious misconduct iii. Has to be enough to break down the marriage iv. Standard: some act serious enough to cause serious strife in marital relationship

standard of living

standard of living in marriage is another factor IF facts of case demonstrate its relevancy

other enforcement mechanisms

suspension of license; loser payments of court costs, contempt of court; criminal sanctios

paternal filiation prescription

the policy for paternal time limits is for the promotion of consistency in the child's life as soon as possible (would rather them know who their dad is sooner)

considerations to BIOC in relocation

the younger the age of the child is important and also the financial opportunities for the relocating parent to provide the child with a better life (if mom gets a job elsewhere, courts will most likely agree to the relocation of the child)

Non-parent visitation circumstances

this always come up when someone wants visitation despite the parent's objection; the extraordinary circumstances usually include the child living with the relative for a period of time, then the parents won't allow visitation

schooling

to meet particular educational needs of child, court can order private school tuition if it's the first time deciding, where child will go, but otherwise particular need includes maintaining child's life—keeping him in school where he's been x. Don't want to disrupt child's school experience --just being enrolled in the school is probably enough

non-parent visitation

under extraordinary circumstances, blood/affinity relative or former step parent/grandparent not granted custody can be granted reasonable visitation rights if court finds its in BIOC 1. Different from Troxel statute b/c it narrows class of persons to relatives and affinity 2. Also, BIOC standard plus extraordinary circumstances standard (higher standard than just BIOC) extraordinary circumstances may include when parent is addicted to controlled dangerous substance

Barry case

v. Court says application is constitutional as long as it recognizes supreme parental constitutional rights

good cause warranting the 180 day extension of ISS

v. It needs to be something serious where it would be wrong not to allow it b. Case by case basis for good cause c. EX: extreme disability during trial

vincent case

vii. This is the first case that approves of term award w/o the requirement that equity necessitates the term viii. This case suggests that ANY FPS award can be time-limited, not just those involving rehabilitative support ix. This is not the norm, but it's the way FPS is moving

voluntary dismissal of petition of divorce

voluntary dismissal—judgment dismissal of petition for divorce under art. 102 shall be rendered upon joint application of parties and upon payment of all costs or upon contradictory motion of plaintiff

Sonfield case

x. This case suggests that court is unlikely to reduce FPS award solely b/c of equity in family home, suggesting that there is something special about family home d. LASC says you do consider capital assets, but LIQUIDITY must be assessed *Courts are reluctant to force a spouse to sell family home in order to liquify - but other capital assets are fair game