family law

D. Tutorship a . Definitions and "occasions" of tutorship

. 246-340 are the general articles ii. 354-362 are the articles for mentally challenged people iii. Broadly: some problems that there are with parental authority 1. Have not been revised since 1870s 2. No definition iv. Don't have parental authority when parents divorce 1. Tutorship 2. Covenant marriage - legal separation a. Law says this terminates parental authority 3. If child is born out of wedlock - subject to tutorship a. Never under parental authority b. May not have custody order v. Occasions of tutorship: 1. Divorce 2. Legal separation 3. Child born out of wedlock vi. We need a tutor/tutrix: person exercising legal authority and control over the child after one of the "occasions"

. Voluntary termination of Parental Rights (different for mom & dad)

. By Mother: i. Surrender and consent always required for adoption 1. Different for men - maybe unfair ii. Mental health counseling is usually given 1. At least twice before surrender iii. Legal counseling required if private adoption iv. Authentic act created 1. Notary and 2 witnesses v. Timing: 1. Of execution of surrender a. We don't allow pregnant women to surrender before birth - maybe they will have change of heart like Baby M i. Father is different b. Cant be earlier than 3d day after birth if agency adoption or 5th day if private adoption 2. Irrevocability of surrender: mom cannot revoke surrender once completed. Bye. a. different for father b. By Father: i. Father is the presumed father or father via filiation/avowal actions 1. Changes by whether the father is known or not ii. Known Father: 1. Executes a document to terminate rights a. Not as worried abut emotionally bonding with the child i. Carroll doesn't like that 2. Timing: a. Can surrender before birth of the child at any time b. Revocable until 5th day after birth 3. Notice and window for opposition (uncooperative father) a. Father, after getting notice, has 15 days to contest the relinquishment of the child for adoption. b. If he doesn't answer in 15 days, the court, upon motion, renders the rights of the father terminated. (assume surrender) iii. Unknown Father 1. Mom wont name him: we turn to putative father registry. We cant proceed until we try to find dad. a. Allows man to register himself to the registry if he thinks he may have a kid. b. If mom won't name dad, we check the registry for potential daddy. c. Only 600 men are on it - stupid idea 2. Nobody knows who dad is: if registry is no help, we make a diligent effort to find the father a. Ex: mom knows friend of friend, where he works, etc. we follow leads. b. After a diligent effort and no dad found; we terminate the parenthood of the father and go ahead with the adoption . iv. If father objects to adoption, the fact that he is the biological father alone is not enough to stop the adoption! 1. Father must prove also that in the past he made a material contribution to the child - we want to know if he has been paying child support. 2. Seems a huge issue under Troxel.

Parental Authority

. Definition: obligations parents have to kids, rights and duties between parent and child, and responsibilities owed between each other. b. Extrapatrimonial Rights & Duties i. Honor and respect (236) ii. Obedience (228) iii. Residence and discipline (227,228) iv. Direction (moral, spiritual, material) (226) v. Education (224) vi. Representation (222) - parents legally represent children in legal proceedings 1. Representation in court, juridical acts, etc. c. Patrimonial Rights & Duties i. Administration of minor's property (229) 1. CCP 4501: property belonging to a minor may be sold or mortgaged, a claim of a minor may be settled, etc. . . 2. Snowden: the child is disabled due to med mal at birth - parents recover 500,000 on behalf of the child according to the patrimonial right of administration of a minor's property. They blow all the money and once the kid is 18 he sues for the money. a. Old law: parents had usufruct over child property due to this patrimonial right i. Cash is expendable, so using it means spending it. Parents could use the money but just pay it back. ii. BAD here because it let the parents get away with wasting the kid's money. b. New Law: art. 230 - parents have administration over child property, but cannot use it without court approval. i. Means they can throw it in a trust, etc. without court problems but they cant start spending it without approval ii. BUT - parents can spend the child property "for the shared benefit of the family" 1. Ex: wheelchair, food, wheelchair van, etc. iii. Replaces the old usufruct law - but the trade off is that there is no duty to pay back what is spent anymore. ii. Alimentary Duties (237) 97 1. The obligation of providing basic necessities of life between ascendants and descendants. (support grandparents) 2. Limited to necessities: food, clothing, housing, healthcare ONLY a. Duty exists only if the ascendant/descendant can't get the necessities elsewhere (healthcare, food stamp, etc.) iii. Liability for offenses & quasi-offenses 1. 225: parents are liable for kids' torts (vicarious liability) 2. 2318: the father and mother are responsible for the damage occasioned by their minor child, who resides with them or who has been placed by them under the care of other persons, reserving to them recourse against those persons. a. The father and mother are not responsible for the damage occasioned by their minor child who has been: i. Emancipated by marriage (367); or ii. By judgment of emancipation (3660 1. 16 years old and over can get a judgment of emancipation if shown good cause a. Done a lot to let a kid play football in another city - go live with the coach. 3. "Residing" really means and should say "domicile" 4. Problem: in a situation with divorced parents, the parent with custody is the one liable for the torts of the minor. This means that the domiciliary parent can drop off the kid at the non-domicilary parent's house, the kid does a tort while under the other parent's supervision, and the domiciliary parent is held liable for the tort. a. The DP can be held liable in a situation where they had no control of what happened - unjust result 5. CATCH: Emancipation of the child usually relieves the parents of vicarious liability for torts committed by the child. a. Emancipation by marriage = no vicarious liability b. Emancipation by judgment = no vicarious liability i. 16 year old with good cause - done a lot to play HS football elsewhere. c. BUT, emancipation by authentic act DOES NOT RELIEVE PARENTS FROM VICARIOUS LIABILITY. i. This way, parents cant emancipate their 16 year old by authentic act just to limit their vicarious liability for the kid. 1. They are 16, get in a car wreck, victim wouldn't be able to get recovery.

Art. 195: Subsequent Marriage Plus Formal Acknowledgement b. Rebuttal

. Father can rebut the presumption he himself created in 195 by a disavowal action in the same manner as a disavowal in 185. 1. 180 days from the day of marriage or acknowledgement - whichever is later. a. Shorter than 185 disavowal because the dad formally acknowledged the kid and married the mom after. b. He took big steps to get paternity, so we give him a very short window to undo such affirmative steps. c. ii. Only the husband can disavow: 185 names successors as potential parties too and 195 left them out so we guess they aren't supposed to apply here. iii. Why would a man formally acknowledge a kid that isn't really his? 1. Thinks its his 2. Wants to raise as his own a. Doesn't mean he is in fact the biological father 3. He might want to undo this later - regret. c. Effect i. Same effect as 185: all parental rights and duties flow both ways between parent and child ii. No case on whether a Cosse exception applies to 195 presumption or not. 1. Cossse = inequitability shutting down presumption 2. Theres a difference here from cossee because fathers in 195 take affirmative steps to claim a child.

v. Termination of Parental Authority

1. Death 2. Attainment of majority 3. Emancipation 4. Tutorship: when tutorship begins, parental authority dies a. Commencement of tutorship: i. Parents divorce ii. Child born out of wedlock

NEW art. 190.1 - EXAM i. "3 party acknowledgement"

1. Mom, dad, and husband at the hospital and know what is going on. a. Procedure is that the husband goes on the birth certificate automatically (185) i. This means that even if the parties all know that the husband isn't the real dad, they still need to go through costly disavowal and avowal actions to correct the erroneous birth certificate. So 190.1 was made to give a shortcut in this limited circumstance. 2. Generally presumed dad, real dad, and mom can sign an authentic act together to replace the presumed dad with the real dad a. All 3 have to sign i. Other states have a two party authentication - helps when the presumed dad is long gone. 3. BUT: supposed to be quick, easy and cheap, but DNA testing is required to prove the real father is the real father even if everyone agrees so. a. Has to be a 99% positive blood/tissue test i. Stupid because it counteracts the very reason we made 190.1 - convenience. ii. Why done: we care about who the real dad is. 4. TIME: 10 year outside limit like 198 ii. Avoids dual paternity since we let the presumed dad OUT. 1. 197 and 198 create new legal fatherhood but don't get the other dad out. This one does.

rebuttal of 185 presumption by third parties?

1. There is no codal authority saying that someone that isn't the mom, dad, or dad's successor can rebut the 185 presumption. 2. BUT, one case that happened before the latest filiation revision decided that a third party can. But legislature didn't recognize the case in the latest revision so we probably should ignore it 3. Gnagie a. Facts: H1 married to mom at time she gives birth, 185 presumed hes the pappy. But, H1 and mom were physically separated at the time. He knows about the kid, but never disavows and is not involved in the child's life. Mother gets a boyfriend, boyfriend kills the kid. Suddenly the dad swoops in and brings a wrongful death action. Boyfriend wants to 85 rebut this presumption so dad cant recover too. But he's a third party. b. Held: because of huge inequity, a third person (tortfeasor) can rebut the paternity of someone presumed under 185.

iii. By means of Positive Proof (these are the 2 actions)

2 actions can be brought for paternity filiation a. 197: Brought by the child b. 198: Brought by the parent

d. Child Custody (second of Big Three)

2 flavors of child custody in LA (assume we are talking about both unless told otherwise) 1. Legal custody: person with decision making authority for the child 2. Physical custody: where the kid physically stays ii. Generally: 1. Art. 131-137 rule child custody 2. Art. 131: "in a proceeding for a divorce or thereafter, the court shall award custody of a child in accordance with the best interests of the child" a. Misleading: applies to situations where the parents are still married or never were married too b. 9:291 - child custody is one of the excepted actions that you can sue your spouse for as long as you are living separate and apart c. Best interest of the child - gives the court WIDE discretion and invites a fact-intensive approach i. Appeal standard is abuse of discretion: this means that TC rulings on child custody are rarely disturbed. d. End goal: preserve the status quo 48 3. art. 134: "factors in determining best interest" (illustrative) a. Potential for Child to be abused i. PRIMARY FACTOR - Carroll doesn't like the "primary factor" bit because we don't know how to weigh it with the others ii. Ex: dad may abuse, but momma is literally on crack b. Love, affection, and other emotional ties i. Intended to replace "tender years doctrine" that favored the mother 1. We now recognize that mothers aren't always the "better" parent ii. 98.8% of the time, moms still get custody 1. Maybe Gays will change this? c. Capacity & Disposition of each parent to give love, affection, spiritual guidance, education, rearing i. Looks to the character of each parent, rather than the current giving ii. "to continue the education and rearing of the child" - shows the favoring of maintaining the status quo d. Capacity & disposition to provide food, clothing, medical care, & other material needs i. Always favors the wealthier parent e. Length of time the kid stayed in a stable environment f. Permanence as a family unit, of an existing or proposed custodial home. g. "Moral Fitness" of each party insofar as it affects the wellbeing of the child i. La doesn't speak to "fitness" of a parent - not a test like in other states ii. Alcohol/substance abuse, relationships with abusive partners, sexual activity of each parent, etc. 1. Scott v. Scott: Uses this element to make dad the domiciliary parent because mom has a lesbian relationship - so her moral fitness is not up to par. a. Judges that don't like Gays can use this rule to lash out 2. Weaver v. Weaver: dad gets primary custody because mom has had 7 boyfriends in 8 years that have spent the night in the kids presence (Caroll say (; ) h. History of substance abuse, violence, and criminal activity - NEW 2019 RULE i. Mental & Physical health of each parent (more of a consideration) i. Relates to the "battered spouse syndrome" - avoid abuse experience affecting your custody ii. "Mental & physical health" is VERY broad 1. Mental: bipolar, depression, etc. 2. Physical: wellbeing of each party a. Cain v. Cain: Dad loses custody because he is crazy/bipolar j. Home, School, and Community History of the Child i. Will a big move hurt the child? Look at everything ii. "home history" - what happened to the child in the past 1. Ex: child abused by male figures, child might not be comfortable around dad alone even if dad is a damn good dad k. Reasonable preference of the child, if the child is deemed "able to express a reasonable preference" i. Puts the kid in traumatic position, carrol says we shouldn't ask kids. But we cant abolish because sometimes it's the best evidence we can get ii. Advise clients not to drag kids into it iii. "reasonable preference" - mature preferences 1. Cain v. Cain: kids want mom because dad makes them read medical textbooks 2. Caroll: kids want dad because he lets them eat more poptarts = NOT reasonable preference. iv. "if the court deems child of sufficient age" - no standard so its up to judge discretion 1. Usually above 8 to 9 years old if giving good reasons 2. Georgia says over 14 you have to listen to child. Not so in LA. l. "Friendly parent provision" - Willingness & ability of each parent to facilitate relationship with other parent and family i. Friendlier parent gets custody EXCEPT when objectively substantive evidence exists to create a fear that the other parent will abuse kid if there is a relationship with the other parent 1. Victim of abuse doesn't need to be friendly. m. Physical distance between residences of parents i. Joint custody is harder the farther apart parents are. More on that later. n. Responsibility previously exercised by each party i. 1993 Cmt. (i): evaluated by identifying which parent had primary responsibility during the marriage for: (1) prepping meals for the kid; (2) bathing and dressing kid; (3) purchasing/cleaning clothes; (4) providing medical care; (5) arranging social interaction after school; (6) arranging babysitting; (7) putting the kid to sleep at night; (8) disciplining child/potty training; (9) obtaining education for kid; (10) teaching elementary skills to kid. 4. NEW art. 134(B) - Carrol says its shit a. If the Post-Separation Family violence relief act applies (9:362): there is a presumption of sole custody in the nonabuser and supervised visitation for abuser i. No visitation if sex abuser b. Answer for cases where parties failed to specifically plead 9:362 so abusers were getting more than they should be i. Whole point of this new section is that abused parties don't have to specifically plead 9:362 to get the presumption

10. LAST: Deviation of Child Support - 9:315.1

2 grounds for deviation of Child Support: i. Application would not be BIOC 1. Would shift the award up mostly ii. Application would be inequitable to the parties 1. Usually a shift downward 2. Ex: class hypo - dad Is paying 1350 of 1900 a month income while mom is living with husband making 20,000 a month. b. Courts do not have much discretion: deviation of child support is hard since we want to stay consistent with child support awards. c. Considerations to see if one of the 2 grounds are met - illustrative list from 9:315.1 i. off the chart income 1. doesn't make too much sense- on the low side of the chart it bottoms out at 0/month. So has to be when the income is above the 40,000/month 2. if above the chart: we generally look to the needs of the child - we already know what to do here. a. Stupid to make it a consideration for deviation if its already been decided that the first determination off the charts is BIOC - now we are doing BIOC/inequity of parties. ii. Multiple families - two or more 1. Activates the "first family first" issue we discussed. 2. Second family: obligor has another set of kids in his home 3. Multiple families: obligor has another set of kids not in his home 4. First family first: we already considered the first support obligation, so this is where we avoid the potential inequities that a second set of kids would suffer if their support calculation didn't take into account that other kids are getting more support from the same pappy. iii. Extraordinary Medical Expenses of a parent 1. NOT kids. This lowers the award amount. 2. Income shares model doesn't consider the expenses like these - so that's why its deviation stuff iv. Extraordinary community debt 1. Rare: presumes the spouses were married 2. Has to be BAD: student loans, etc. a. Can't be a voluntarily created casino debt, etc. - would encourage abuse v. Need for immediate and temporary support 1. A full hearing to award intermediate/FPS would take too long and we need someone paying now under the circumstances. We allow the court to do a temporary order without going through all the considerations and then clean it up later a. Emergencies only vi. Permanent or temporary total disability if it diminishes earning capacity 1. After order, parent cant work anymore - would be inequitable to that party. 2. Must affect present and future earning capacity vii. Adult with disabilities - new 1. A child with a disability can get permanent support their whole life. a. Ex: downs syndrome 2. Extends support permanently viii. Catch-all Phrase 1. "and any other consideration that applies to the 2 grounds for deviation" a. Not a blank check" rebuttable presumption still exists that means you really want to fit under a named consideration - judges don't like getting overruled d. Exam: Be able to run through these when doing child support - key e. Procedure for deviation - discourages deviation too i. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons have to be on record. 1. Error by judge in any of this is reversible on appeal. Very discouraging for judges tempted to deviate.

. Types of Tutorship (analyze in order, higher ones trump lower ones)

By nature 1. Parents only - at the death of one, the other becomes the tutor/tutrix 2. Out of wedlock: mother is the natural tutrix if the dad doesn't acknowledge the child. a. If the dad does acknowledge the child, we have a hearing to decide who gets tutorship of the kid 3. Divorce: parents with custody get tutorship a. Joint custody, look at who the domiciliary parent is i. If no DP named, idk ii. By will 1. The right of appointing a tutor belongs exclusively to the father or mother - whoever dies last 2. Divorced: the parent the court gave custody to has the sole authority to appoint a tutor in their will 3. Born out of wedlock: the parent with tutorship has the right to assign tutorship in their will 4. Entirely voluntary - someone appointed to be a tutor in a will can refuse. a. this is the only tutorship flavor that can be declined iii. By effect of law 1. Judge picks in BIOC from ascendants in direct line or collaterals by blood in the 3d degree, or stepparent if need be 2. Mandatory - cant say no a. Not a huge problem, an unwilling tutor isn't in BIOC anyway. iv. By appointment of the judge ("dative tutorship") 1. Anyone, in BIOC, can be appointed a. We are desperate at this point b. If asked to be tutor, you must accept.

Visitation of nonparent (assuming parent does not consent)

Art. 136 (B-E) and 9:344 - WILL BE ON EXAM b. Art. 136 (B-E) i. Provides that 136 applies only if the parents: 1. Aren't married or cohabiting like married persons; or 2. Have filed a petition for divorce ii. (B)(2) - Reasonable visitation by blood or affinity of former stepparent/step grandparent if in BOTH extraordinary circumstances and best interests of the child 1. Avoids Troxel by limiting who and how (burden) c. "Extraordinary circumstances" - usually when the child has lived with a relative i. Other than BIOC and simply "being" a relative ii. Has to be serious 1. Usually require a very close relationship between the child and the relative, especially if the child and relative lived together at one point. Abuse of dangerous illegal drugs also is serious enough. a. Carrol: second sentence is stupid because it was added for a dumb reason and messes up how we view extraordinary circumstances d. 136(B)(1): A grandparent may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. Before making a determination, the court shall hold a contradictory hearing (9:345) in order to determine whether the court should appoint an attorney for the child i. Carrol: this is plainly unconstitutional under Troxel - it gets rid of extraordinary circumstances and puts grandparents above other relatives. 1. No cases on constitutionality yet. e. 136(D) effectively codifies troxel, in an attempt to prevent constitutional challenges. f. La. R.S. 9:344 - MUST KNOW i. Applies only if: 1. Parents are married and haven't yet filed a petition for divorce; or 2. Cohabitation in the manner of married persons ii. Check for applicability of THIS first, and if it does not, then move to 136 iii. KNOW ALL 4 PARTS: APPLIES TO GRANDPARENTS AND SIBLINGS 1. Grandparents: If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child(ren) of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such child can have reasonable visitation rights to the child or children of the marriage during their minority if the court in its discretion finds that visitation is BIOC. a. Has to be grandparents of a married couple 2. Grandparents: when the parents of a minor child live in concubinage and one of the parents dies or is incarcerated, the parents of the deceased or incarcerated may have reasonable visitation rights to the child if BIOC a. Not married but "living in sin" is the qualifier. Only triggered by death or arrest. 3. Grandparents & Siblings: if the parents of a minor child of the marriage have lived apart for six months, in extraordinary circumstances, the grandparents or siblings of the child may have reasonable visitation rights to the child if BIOC a. "extraordinary circumstances" - same application as in art. 136 (child lived with them/spent substantial time) 4. Siblings: If a party to a marriage dies or is incarcerated, the siblings of a minor child of the marriage may have reasonable visitation rights if BIOC g. Recap: i. 136(B) - GP and best interest 1. Might be unconstitutional ii. 9:344 - special rules for GP and siblings 1. Constitutional on its face h. Even if all of this is constitutional, it can be applied unconstitutionally i. Barry v. McDaniel 1. Mom dies. Her parents want visitation. a. 9:344(A)(1) is used, but dad argues that it was unconstitutionally applied 2. Primacy/decision making authority of dad was not being recognized through 9:344 application. a. Grandparents weren't recognizing the kid's new name, taking kid to moms grave against dad's wishes, and bringing the kid to a different church. 3. Court agrees that the application was constitutional but it is close for two reasons a. Religious belief part is very close b. Court order required dad hand kid over no matter what - that's too far honestly ii. McMillon: court said TC giving grandparents visitation every other weekend was unconstitutional. 1. GPs were telling kid about dead dad, etc. and court said that since the kid was so young this was too far.

v. #3 - The free consent of the parties to take each other as husband and wife, expressed at the ceremony.

Art. 93: consent may not have a vice - it is not free when it is given under duress or when given by a person incapable of discernment. a. Generally - you must be i. Capable of discernment ii. Free of duress 2. Duress: art. 1959-1964 - READ a. Vitiates consent and leads to nullity of the marriage - it excludes the executed violence or threats of violence i. The party has to actually believe that the person who is making the threat is capable of carrying out the threat 1. The threat cannot be to do something that is lawful 2. threat by a third person is still duress - can be someone other than the spouse doing the threats if it relates to the marriage formation (dad will shoot you if you don't marry) b. Lacoste v. Guidroz (81) i. P claims consent was not free because of threatened prosecution of felony that he did not commit. On rehearing the court considered his age and lack of education to determine no free consent. "barbarization" of duress according to Carrol. ii. Louisiana narrowly defines and applies duress. 3. Incapable of discernment: a. Who counts? i. Minors, interdicts, and PDRs: art. 1918 1. PDR: drunks, crackheads, and retards not interdicted ii. Art. 93(c)&(d) adds age to the list as well 1. Alcohol, young age, drugs, and mental retards. A person who is too young means they cannot understand consequences of the marriage celebration a. NOT 18 years old (contract law) - just says too young to understand. 2. DON'T NEED PARENTAL CONSENT - no explicit age requirement listed but you gotta understand the consequences. iii. NEW ACT: Children's Code art. 1545 1. An officiant may not perform a marriage ceremony in which a minor is a party unless the minor has the written consent of either: (1) both of his parents; (2) tutor of his person; (3) a person who has been awarded custody of the minor; (4) the juvenile court in some cases. A minor under 16 may marry if they also get written authorization to marry from the judge of the court exercising juvenile jurisdiction in the parish in which the minor resides or the marriage is to be performed. 2. Does not nullify marriage if violated 3. 16 and 17 year olds can get married if: a. Judicial authorization; and b. Written consent to marry of either: i. Both parents; or ii. Tutor; or iii. Someone with custody c. Marrying a major with over 3 year age gap 4. No marriage under 16 - art. 90.1 4. Error & Fraud - comes from LA contract laws a. Marriage is a contract: error and fraud can vitiate consent and nullify a contract b. Error in LA: arts. 1948-1952 i. 2 prongs: 1. Error on a but-for cause of K formation 2. The cause has to be known/should have been known by the other party ii. Stier v. Price - 83 1. W tries to annul marriage for error - she didn't know about H's mental state (dementia) 2. Wife can't get error in order to get annulment because error of person is narrow: has to be an error of actual identity of the person you married 3. Delpit: authority on error of mistake for marriage (H thought W was "virtuous") a. Mistake respecting a person: doesn't mean mistake of character, it means you literally err on the ACTUAL IDENTITY of the spouse. iii. Verneville v. Verneville 1. Error about paternity of child, H married W thinking she was pregnant with his kid 2. Court sticks with narrow interpretation from Delpit case - means error is not a valid/practical way to annul a marriage a. Almost impossible to argue iv. Weird problem: what about not knowing your spouse was born another gender?? EXAM 1. Fits contract definition of error, so what would court do since LA doesn't recognize error for marriage (Delpit) but marriage law includes contract law and K law would call this clear error. 2. BUT - Verneville and Delpit suggest error must be the actual identity of the person, not their physical identiy/gender. Still the same human. c. Fraud in LA: misrepresentation or suppression of the truth with the intent to harm the other party or gain an unjust advantage at their expense i. Verneville: induced error = fraud and we don't annul on induced error. But a divorce is cool. d. Why do we allow annulment for duress but not fraud? La has no fault divorce. If fraud or error occurs, you can just get a divorce. It used to be very difficult to divorce. We don't need error or fraud because the remedy of divorce is easy to attain. i. Error and fraud are not grounds for nullity in a traditional marriage 5. COVENANT MARRIAGE AND FRAUD - EXAM a. In covenant marriage you also cannot annul for error or fraud. But there is a huge theoretical difference - but there is a push to bring back error and fraud. i. In CM you have to sign a notarized declaration that you disclosed everything that would influence the other spouse's consent to enter the marital relationship. ii. CM makes it easier to prove fraud because of this signed declaration - fraud requires a misrepresentation or suppression of the truth. Silence as fraud requires a duty to disclose. In TM there is no duty to disclose, but in CM there is a duty to disclose. 1. Bolsters cause in CM for annulling a marriage for fraud (we never had a case of if error/fraud could lead to annulment in covenant marriage though)

2. Involuntary Termination of Parental Rights

Ch. C. 1015: forcing biological parents to relinquish parental rights b. Reasons for involuntary termination: i. Conviction of murder of the child's other parent ii. Misconduct of the parent toward the child or any other child of the household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a standard of human decency, including but not limited to the conviction, attempting, or soliciting to murder, torture, etc.

Absolute Nullity

Causes of absolute Nullity: 1. Absence of a marriage ceremony; 2. Marriage by procuration; and 3. Violation of a legal impediment a. Prior undissolved marriage, close blood/adopted relation, and same-sex (dead now) 4. Insufficient age - NEW art. 90.1 (no under 16, 16-17 w/ permission, no greater age gap than 3 yrs if under 18. ii. Effects of absolute nullity: 1. An absolute nullity is void ab initio: we act like it never happened since it violates public policy. A judicial declaration of nullity is not required. 2. An action for declaration can be brought by anyone interested and does not prescribe iii. EXCEPTION to AN effects: putative marriage 1. 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. 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. When the cause of the nullity is an impediment of age, the marriage produces civil effects in favor of a child of the parties. When the cause of the nullity is another reason, a marriage contracted by a party in good faith produces civil effects in favor of a child of the parties. A purported marriage between parties of the same sex does not produce any civil effects. - art. 96 2. Elements: a. Contracted b. In good faith 3. "Good faith" - there is no overall definition in the code, so we turn to case law. a. Art. 96(d) says - "An honest and reasonable belief that the marriage is valid and that no legal impediment exists" b. Mara v. Mara - (108): bigamous marriage created impediment of a prior undissolved marriage - P claims that despite absolute nullity, it is a putative marriage, therefore civil effects still flow such that she gets community property. i. Court focuses on the definition of "good faith" element - "honest & reasonable belief that the marriage is valid" = an objective and subjective standard (subjective belief that is objectively reasonable) 1. Subjective prong = a question of credibility 2. Objective prong: ROPP thinks subjective belief would be reasonable ("similarly situated") ii. Court looks at circumstances - W only had high school education, didn't understand divorce law, went to an attorney who gave her a piece of paper and said she was good. Of all the cases, this is the most reasonable belief - attorney defrauded her. c. Sucession of Pigg - looser "good faith" than Mara i. Court said W subjectively believed in good faith that the husband had divorced previous W based solely on H showing W a piece of paper claiming it's a divorce. The paper was obtained via fraud. 1. We don't expect people to search any further on people they date on such a matter - it'd be ridiculous d. Eddy v. Eddy - Court goes even further than Pigg and says that W had reasonable belief based solely on H's word. (mara was attorney & paper; Pigg was just paper; now Eddy says just H's word is good enough) e. Gathright v. Smith - H takes W's word that both her marriages were dissolved. Court allows H a putative marriage, saying reliance on her word alone was enough for a "honest and reasonable belief" for PM purposes. i. This case shows how generous courts are with putative marriages. 4. Burden of Proof for Putative Marriage a. Burden is on the person arguing against putative marriage enforcement i. This means good faith is presumed b. BUT: when spouse seeking putative marriage status is the one with the defect, good faith is NOT presumed i. Ex: the party that had the prior undissolved marriage can claim putative marriage but burden shifts to them to prove good faith and reasonable belief. 5. Putative marriage is rare beyond the prior undissolved marriage scenario - one case shows another application a. Thomason v. Thomason - putative marriage case in context of a ceremonial defect i. Ceremonial defect = absolute nullity ii. If P claims honest & reasonable belief that the ceremony was reasonable and D can't prove otherwise (D's burden), then putative marriage is allowed here. iii. Caroll doubts the reasonableness in practical terms. iv. Makes it possible for ceremonial defects to give rise to putative marriage for a party v. Note: the ceremony did not have witnesses - but that doesn't lead to nullity it just leads to fines for the officiant b. Succession of Marinoni - wife is a young immigrant, W and H get marriage license but no ceremony. She has baby, H says never married. i. "It is absurd to allow a putative marriage when there is no marriage license and no attempt at a ceremony" 1. Without both you clearly lack an honest and reasonable belief ii. We don't know what to do with no ceremony situations iii. Court allowed a PM despite no ceremony here - but disturbing result bc we are really pushing what we define as an honest belief. c. Succession of Rossi - in the absence of a ceremony - no PM! i. Doesn't overrule Marinoni, but tracks its dissent. ii. This we know: without a license and a ceremony, you aint getting a putative marriage iii. Difference is that the facts here aren't as sad as in Marinoni d. Alfonso v. Alfonso - H represents to W that they are married under Honduran law and shows her a paper in foreign language. Similar to Martinoni - a foreign language, a paper, unfamiliar laws, and no ceremony. i. Court allows the PM despite AN from impediment 6. Putative Marriage and Same Sex a. New article 96: putative marriage does not apply to same-sex marriages. b. Gay marriage before June 16, 2015 also not likely PM unless the spouses lived under a rock. Pretty impossible to have a good faith belief in legitimate marriage prior to Obergefell. 7. Effects of Putative Marriage: Civil effects of the otherwise absolutely null marriage still flow a. This means shit like community property, child support, alimony, end of life, etc. still apply b. The effects of PM run in favor of the party who contracted the absolutely null marriage in good faith i. Honest and reasonable belief in validity of marriage (treated as two prongs) c. Duration: "for as long as the party remains in good faith" i. Ends when you learn of the defect of the marriage 1. Ex: when husband in case tells wife they were never married. 2. Thomason - the wife found out after 40 years of thinking they were married so she gets 40 years worth of civil effects from the marriage 3. Evans - wife heard rumors and meets ex-wife saying she is still married to H. Civil effects run out HERE for wife 2. a. She lost the good faith. b. Husband dies after bad faith was created - she gets no effects when he dies. ii. EXCEPTION - "when the cause of 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" 1. Made to avoid Evans result

Domicile (arts. 38-46)

Definition in art. 38: The domicile of a natural person is the place of his habitual residence. The domicile of a juridical person may be either the state of its formation or the state of its principal place of business, whichever is most pertinent to the particular issue, unless otherwise specifically provided by law. i. Federal definition: the place where you reside and intend to stay indefinitely. Two prongs: location and intent ii. State definition is art. 38 1. "Habitual residence" - implies a place where you have been for a while and intend to go to again. a. The "intent" element of the state definition is hidden within "habitual residence" and means the same thing. iii. Exam: to discuss domicile answer two questions: Where do you live and where do you intend to remain b. Change of domicile: art. 44 - domicile is maintained until acquisition of a new domicile. A natural person changes domicile when he moves his residence to another location with the intent to make that location his habitual residence. i. Your existing domicile is maintained UNTIL you change it by meeting the requirements. c. Multiple Domiciles: Art. 39: A natural person may reside in several places but may not have more than one domicile. i. In the absence of habitual residence, any place of residence may be considered one's domicile at the option of persons whose interests are affected. 1. It is impossible to have more than one domicile as of 2012 d. Proof of domicile: showing intent/"habitual residence" depends on the circumstances. i. Proving domicile is a subjective determination of intent left up to the judge ii. Art. 45: A sworn declaration of intent recorded in the parishes from which and to which he intends to move may be considered as evidence of intent. 1. Nobody ever uses it or knows it exists. e. Legally Forced Domicile - when the law chooses the domicile of certain persons i. Unemancipated minors: The domicile of the unemancipated minor is that of the parent or parents with whom the minor usually resides. If the minor has been placed by court order under the legal authority of a parent or other person, the domicile of that person is the domicile of the minor. The domicile of an unemancipated minor under tutorship is that of his tutor. If joint tutorship, it is that of the tutor with which the minor usually resides unless the court says otherwise (Art. 41) 1. Emancipated minors establish their domicile through art. 38 ii. Interdicts: The domicile of a full interdict is that of his tutor. A limited interdict retains his domicile, unless otherwise provided in the judgment of interdiction. (Art. 42) 1. Limited interdict domicile depends on the interdiction order. iii. Majors under tutorship: the domicile of a person under continued or permanent tutorship is that of his tutor. (Art. 43) 1. Directed towards people over 18 and still under tutorship - autistic children and those with down syndrome - people with mental disabilities are not interdicted but placed under continued or permanent tutorship. f. Significance of domicile i. Procedural: basic venue and service of process. Actions against a defendant must be brought in the natural persons domicile. ii. Matrimonial agreements must be filed in the parish of domicile iii. Covenant marriage: if the spouse abandons the matrimonial domicile, the other spouse has legal grounds for divorce. iv. Domicile for spouses: spouses may have either a common domicile or separate ones. Spouses don't have to live together - kinda - more on that later. (Art. 40).

C. Entry into Marriage

Engagement Contract i. Marriage is usually preceeded by an engagement, and that engagement is often considered a contract in itself. 1. Engagement is an exchange of promises 2. Louisiana still recognizes breach of contract in engagement (breach of promise to marry) - but rare ii. Cause of action for engagement contract breach 1. "heart balm actions" - actions to soothe a broken heart (alienation of affection) are not recognized in LA. a. Essentially an action suing third party for busting the marriage or any damages related to hurt feelings 2. Heart balm actions are abandoned everywhere, but LA still allows an action for breach of K in engagement: "Breach of Promise to Marry" a. Recovery is rare iii. Glass v. Wiltz - affirms existence of breach of promise to marry, but you must be free from fault to recover for it 1. P's fault is a defense for D a. Defenses: i. Fault of the other (Glass v. Wiltz) ii. Causation (Glass v. Wiltz) 1. Distinguish from loss of affection damages and breach of contract damages iii. existing marriage (Sanders v. Gore) 2. D's defense in Glass - Causation: plaintiff could not link the problems of the shits and problem sleeping with a breach of contract. That's more alienation of affection/heart balm a. "the breach of K might not have caused the injury claimed - the emotional trauma likely caused the injury." b. You cannot have a claim for the latter - it is hard to prove injury related to the former since the latter is more likely in most cases iv. Sanders v. Gore - prior existing marriage = defense to breach of K to marry 1. Both were married during the time of engagement - as a matter of public policy we don't want to award damages here and encourage people to leave spouses. It is almost impossible to recover for the breach of promise to marry v. Damages typically awarded: see arts. 1994 et. seq. 1. Loss sustained: deposit on a venue, dress purchased, etc. (easy) 2. Profit of which you were deprived: community property in LA - property is shared and on divorce you get a % of total pool of marriage funds (not what you brought into it) a. You are deprived of 50% of partner's salary, but you cannot claim that as deprived profit (way too speculative) i. Pre-nup: sets up separate property regime ii. Hard to value of how long a marriage will last so it is hard to value lost profit because of marriage b. Sanders v. Gore - plaintiff cant recover cost of remodeling home to defendant's tastes. 3. Nonpecuniary damages - maybe able to recover a. When the K is intended to gratify a nonpecuniary interest AND obligor knew or should have known that breach would cause that kind of loss i. Treat as two prongs b. Courts restrict/narrow awards for nonpecuniary recover - avoid absurd results vi. The Ring: donation in contemplation of marriage 1. Glass v. Wiltz - A sues for the engagement ring, B counterclaims for breach of promise to marry a. Rule: Ring was a donation subject to a suspensive condition i. Called "donation in contemplation of marriage" 2. *EXAM* - Arts. 1734-1736: MUST KNOW a. If no marriage, obligations with suspensive conditions are failed, so now you get the ring back. 3. Problem: it could be possible that the ring is just a donation (not in contemplation of marriage) like a nontraditional ring on Valentines Day or Christmas a. If so, the ring doesn't have a suspensive condition - if the engagement fails here then you don't get the ring back. b. If clearly in contemplation of marriage - you get it back c. If not clear - HAVE THIS DISCUSSION'

Art. 195: Subsequent Marriage Plus Formal Acknowledgement a. Prerequisites

Formal acknowledgement and marriage to mother after the birth. 1. "subsequent" is necessary because otherwise 185 would apply. ii. Only applies when the child is not filiated to another man 1. If 185 and 195 conflict, 185 always wins because it is a biological presumption iii. "a man who marries the mother of the child not filiated to another man and who, with the concurrence of the mother, acknowledges the child by authentic act is presumed to be the father of that child. The husband may disavow paternity of the child as provided in 187. Disavowal is subject to a preemptive period of 180 days, which commences to run from the day of the marriage or the acknowledgement, whichever occurs later." 1. You need: a. Marriage of mom with child that has not been filiated to another man b. Authentic act claiming the child as your own c. Concurrence of the mother iv. Who can bring: maybe just the father. 195 doesn't expressly say successors can like it does in 185, so that is strong evidence that only father can raise this presumption. 1. very unclear as to who can bring the action and whether the father's testimony is self-serving here.

Termination of tutorship

General rule: majority 1. Majority or emancipation 2. But if emancipation by authentic act - you still have vicarious liability for torts ii. Exception: continuing tutorship of "mentally retarded persons" 1. Continues past majority 2. Limited form of tutorship a. Continuing or permanent tutorship of mentally retarded person b. If child was a minor under tutorship, kid reaches majority and can be interdicted i. Same grounds as interdiction, but interdiction is expensive ii. Permanent tutorship is a cheaper alternative to interdiction.

Duties of the Tutor/Tutrix

Generally, tutorship picks up where parental authority leaves off - or when there never was parental authority, this is its substitute 1. Same shit as parental authority ii. Lawsuits: tutor has capacity to sue for minor and manage the payout iii. Administration of property: tutor has administration over tutor's property iv. Liability for offenses and quasi offenses: tort liability under 2318 1. WILL BE ON THE EXAM v. Same patrimonial/extrapatrimonial rights & duties - see above

. #1 - Absence of Legal Impediment

Summary of impediments: a. Impediment of existing marriage (art. 88) b. Close relationship by blood or adoption (art. 90) c. Same Sex (unconstitutional but still in code) d. Age (art. 90.1) - brand new 2. Impediment 1: Impediment of prior existing marriage (art. 88) a. A married person may not contract another marriage (art. 101) b. Marriage terminates upon: death of either spouse; divorce; judicial declaration of its nullity, when relatively null; the issuance of a court order authorizing spouse of a person presumed dead to remarry c. Absolutely null marriage is void ab initio - like it never happened d. Judgment of divorce is NOT retroactive to filing - art. 159 allows community property to terminate retroactively to filing but NOT the marriage contract. i. You can't file, remarry, and then get a judgment of divorce. 3. Impediment 2: Close relationship by blood or adoption (art. 90) a. Ascendants and descendants cannot marry: dad, grandpa, child, grandchild (half & whole blood & adopted) i. Does not matter if adopted or what degree - NEVER ALLOWED (even adopted daughter and adopted dad) b. Collaterally within the 4th degree cannot marry: (blood or adoption) i. Start with one person, count up to a common ancestor and back down the fam tree to the other person. If within 4, not ok in LA. 1. Generally: 1st cousins and anyone closer (applying to whole blood, half blood, and adoption) c. Exception: relations "by affinity" - you can marry stepsiblings d. Exception for adoption: 90(e) i. Cannot allow ascendant/descendants ii. CAN allow within 4th degree collaterally IF - 1. You get judicial permission (judge should consider if "policy of preserving family harmony will be advanced or impeded by the proposed union") 2. Relation is by adoption (absolutely no common ancestor biologically) e. Reason for rule: to prevent birth defects of offspring (but note how science shows how small that chance actually is - 2%) f. *A marriage is valid anywhere if it was valid in the place of making UNLESS it violates a strong public policy i. If there is a legit cousin marriage elsewhere and they move to LA, we recognize it as long as it doesn't violate a strong public policy (it hasn't in the past here) 4. Impediment 3: Same sex marriage (art. 89) a. We legislatively ban gay marriage and have a ban in the LA Constitution b. Art. 89: "persons of the same sex may not contract marriage" i. As of June 26, 2015, this part of art. 89 is unconstitutional because of Obergefell saying states cannot bar same-sex marriage and that states must recognize other same-sex marriages elsewhere. c. Lasting questions of the Obergefell decision on June 26, 2015 4 i. What about "alternate legal statutes?" 1. La. Const. Art. 12 Sec. 15 - "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized" 2. Some parts of the article are still constitutional and some are not. The above sentence may still be constitutional - it basically makes the cohabitation agreement invalid. Some gay partners used to make private contracts regarding wills and property - these approached marriage. a. Obergefell didn't talk about these "alternate statuses" - technically we don't have an equal protection issue with a ban on these statuses because this applies to same sex and different sex couples. d. Louisiana legislature has had opportunity to fix this shit, but it never has made it to house/senate floor. e. Big problem: other articles assume marriage is between man and woman, what do we do post - Obergefell? i. Ex: art. 185 - paternity of "husband" is presumed. What about the gays? 1. Do we extend that presumption to married gays? a. Obergefell is about equal protection, so maybe yes b. But it is a biologically based presumption, gay spouse isn't genetically related to baby so its STUPID f. Bottom line: ignore the ban on gay marriage, its unconstitutional. We don't know what to do about conflicting articles and all dat. Geaux Tigers I guess. g. See other outline pg. 11 for transsexual issue h. Retroactivity of Obergefell! i. Generally, judicial decisions are retroactive ii. Applying Obergefell retroactively creates big issues financially iii. As of June 26, 2015, state cannot ban gay marriage 1. But what about marriages attempted before then? a. We don't know if Obergefell applies to these 2. What about transgender marriage before Obergefell? a. When is gender determined for marriage? b. Pre-2015 marriages have no answer c. La R.S. 40:62 - if you change sex, you can petition a court to assign a new gender. Does not answer marriage question? 5. Impediment 4: Age (90.1) a. Minors under 16 cannot contract marriage b. Minors between 16 and 17 cannot marry a person of majority with an age difference of greater than 3 years i. Comes from statutory rape provision c. Failure to adhere to this new rule makes the marriage a nullity i. Carrol: "this is a disaster, it creates a nullity based on age impediments"

Effect of Child Adoption

Juridical relationship between parent-child i. Art. 199: upon adoption, adopting parent becomes parent of child for all purposes and the filiation between child and legal parent is terminated, excepted as otherwise provided by law 1. Link between adopting parent(s) and child is established for all purposes a. Remember two nonmarried persons cant adopt together 2. Link between child and biological parents is cut ii. 3 exceptions to art. 199 : link between child and biological parents is cut - 1. Except to allow child and descendants of the child to inherit from biological parents . Shows you cant run from all duties as a parent 2. Except in stepparent adoption to preserve link to biological parent if married to the petitioner a. Generally, we delete all biological links when we adopt a child. BUT stepparent wants to adopt the kid that the wife gave birth to: this retains a link with the mom and cuts it with the dad. 3. Except for limited biological grandparent visitation under Ch. C. 1264 a. Happens a lot in teen pregnancy situations. b. Biological grandparents visitation can still happen post-adoption even when the biological links are cut i. Carrol hates it ii. You gotta prove BIOC, etc. Potential Troxel issue implied.

Finality of Child Adoption

Surrender is set aside only for fraud or duress i. Fraud/duress is usually prescribed in 5 years, but in adoption you have 6 months from discovery with a preemptive period: 1. If duress/fraud from someone other than parent : 1 year 2. If duress/fraud from adoptive parents: 2 years

4. "no fault" grounds

Living separate and apart prior to filing petition (103) i. Spouses live separate and apart for requisite period of time before the date of filing of the petition ii. Covenant marriage no-fault is 103 style too b. Living separate and apart after filing petition (art. 102) i. Except in covenant marriage, file the petition and then live separate and apart for the required time. c. No-fault divorce requires a "cooling off" period of 6 months or a year living separate and apart before getting the divorce. i. Goal is to get spouses back together (carol says stupid) d. Cooling off period: 180 days or bumped to a year if there is a minor child in the marriage. i. 102: Was there a minor child at the time of the rule? ii. 103: was there a minor child at the time of petition? iii. Determining "what if the wife was pregnant at the time of petition/rule?" 1. Art. 26 suggests no waiting one year 2. Legal personality is conferred retroactively to time of conception for actions relating to fetus's interests (tort, inheritance, etc.) a. So is a divorce in fetus interests - unsettled i. Yes: 1 year wait ii. No: 6 month wait 3. Carrol thinks one year is the appropriate time if reconciliation is the idea behind the waiting period. There's a kid on the way. a. WILL BE ON THE EXAM - art. 25 and 26 plus a pregnant woman and a cooling off period e. "Separate and apart" - parties live apart in such a manner that those in the community are aware of the separation. LA courts never suggested that you can live in the same house and be separate and apart. i. we want them to "feel the pain" of being apart ii. Elements: has to be physical separation AND the intent of at least ONE of the spouses to be living separate and apart for divorce purposes. iii. Adams v. Adams: H and W live together. H leaves for military duty. W moves in with his mother. 10 days after he leaves, she sends a letter saying she is done. W doesn't leave the mother in law's house for another 4 months. 1. Court says wife cant produce evidence of the letter, but when the wife physically moved it was enough 2. Direct communication to the spouse and physically separating is ok iv. Adams v. Adams pt. 2 1. H threatens W with a machete, chokes her, threatens her. W goes to sister's house and H is voluntarily committed. Once committed, W goes back to matrimonial domicile 2. Wife contends they started separate and apart the night of the attack but never told H anything. She did tell probation officers, sister in law, institution, etc. that she wanted divorce from H. And she filed legal paperwork that showed her intent. 3. Court: combo of communicating to others other than spouse and filing legal documents was enough to start "separate and apart" v. Gibbs v. Gibbs - Caroll says it's an anomaly 1. H and W are separate because H lives in Dallas to work. H comes back 4 or 5 times, but never says anything about divorce. H says he decided in November but didn't file until July. Never told anyone about his intent or file anything. 2. Court somehow agrees he formed the needed consent in November. a. Widely criticized - all other cases require some sort of direct/indirect communication b. Advise your client to do something clearly showing your intent to start living separate and apart for 102/103 purposes 3. Screws wife over here: she is still in community property regime, losing half her wages and incurring half his debts.

196: Based on Formal Acknowledgement (3rd and last presumption)

Methods of formal acknowledgment i. This exception has no relation to marriage with the presumed mother; the presumed father is not married to the mother and doesn't intend to be married to her ii. Art. 196: a man may, by authentic act, acknowledge a child not filiated to another man. The acknowledgement creates a presumption that the man who acknowledges the child is the father. The presumption can only be invoked on behalf of the child. Except as otherwise provided in custody, visitation, and child support cases, the acknowledgement doesn't create a presumption in favor of the man who acknowledges the child. iii. CAN ONLY BE DONE BY AUTHENTIC ACT 1. Different from 195 because: a. No concurrence from mother needed b. No marriage to mother needed iv. *if 185 applies, 185 whoops 196's ass* v. No prescription b. Rebuttal i. 9:406 - undoing the formal acknowledgment by attacking the authentic act 88 1. No cause and within 60 days: A person who executed an authentic act of acknowledgment may, without cause, revoke it within 60 days of the execution of the authentic act of acknowledgment 2. With clear and convincing evidence of cause: A person may petition to revoke such acknowledgment upon proof by clear and convincing evidence that such an act was induced by fraud, duress, or material mistake of fact. a. TIME: no prescription period since it is an absolute nullity. ii. Potential disavowal action 1. 196 says nothing about a disavowal action while 185 and 195 do, so maybe no disavowal here? 2. Plus what would happen to the authentic act if you successfully brought a disavowal action? Tf? 3. BUT Trahan's comment suggests there is a possibility for disavowal (cmt. d). a. Maybe oversight, maybe Maybelline. WDK. c. Effect i. Not "full effects" that flow both ways like in 185 and 195. Here, 196 is only for the child 1. Only in favor of the child. Dad can't recover when kid dies or sue for child's wrongful death. 2. Dad cannot benefit form his kids and he cant get support form his descendant, but the kid can benefit form dad and all dat. ii. "except as otherwise provided in custody, visitation, and child support . . ." means the parent CAN RECOVER in those areas 1. 9:392.1: "in child support, custody, and visitation cases, the acknowledgement of paternity by authentic act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and to establish visitation without the necessity of obtaining a judgment of paternity" a. Purpose: keeping people from avoiding child support payments b. Makes no sense - suggests no rebuttal

198: Judicial action brought by the father: "avowal action"

Prerequisites a. Never married to mom and cant formally acknowledge the kid because it is already filiated to another legal father b. Avowal action: trying to establish a link c. 198: A man may institute an action to establish paternity of a child at any time except as provide by this article. The action is strictly personal. i. If the child is presumed to be the child of another man, the action shall be instituted within one year form the day of the child's birth ii. If the mother in bad faith deceived the father of the child, the action shall be instated within one year from the day the father knew/should've known of his paternity OR within 10 years from the day of the child 1. 10 year cap, 1 year from knowledge. d. Miller i. City judge had affair with secretary, who was married. Baby born, husband presumed father. Child is 3, parents divorce. Child is 8, judge brings avowal action. ii. Result: didn't allow because it would destabilize the child's life e. T.P. v. MMM i. Facts: child born with married parents and the mom is in an affair. The mom tells both men they are the daddies. Boyfriend doesn't do anything. Child is 6, parents divorce, and boyfriend comes forward immediately to claim child in avowal action. ii. Court: didn't allow because problematic and would disturb the child this late in the game 1. Result is that legislature applies 1 year from birth preemptive period for 198 avowal action if dad not lied to f. TIME: i. Standard: within 1 year of the birth of the child ii. If mom lied in bad faith: within 1 year of knowledge/shuolda known with a 10 year cap iii. Dead kid: within 1 year of death of kid 2. Proof a. Preponderance of the evidence i. Use "any relevant evidence" ii. Low burden because we are establishing a link. 1. Contrast this with 197. 3. Effect a. Dad is legal father for all purposes i. Full effects both ways!

II: Of Persons A. Kinds of Persons: Natural and Juridical

Natural Person: a human being [enjoying general legal capacity to have rights & duties - art. 27] i. Duration of Natural Personality: "Natural Personality commences from the moment of live birth and terminates at death" 1. Beginning - "Live birth" (wtf does that mean) a. Art. 25 (b) - "there is no requirement the child be capable of living" b. Nobody knows what "live birth" means, other comments suggest "some sign of existence" such as crying i. Carrol likes this best c. Exception to live birth requirement - art. 26: An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death. i. If a child is born alive, we retroactively confer natural personality back to the moment of conception only for whatever relates to the unborn child's interest. MUST BE BORN "ALIVE" 1. Ex: dad dies before child birth, baby wouldn't get inheritance unless we confer personhood retroactively to conception 2. Ex: Wrongful death - even if a child is not born alive, we retroactively confer the natural personhood of the baby to conception so there is a cause of action for wrongful death. ii. What is "Conception" - we don't know 1. Possibility1: Fertilization of the egg (supported by 26(b)) 2. Possibility 2: Implantation of egg into uterus wall a. 1474 Unborn children, capacity to receive: To be capable of receiving by donation inter vivos, an unborn child must be in utero at the time the donation is made . . . b. La. R.S. 9:123 supports both implantation and fertilization 2.. End - Death a. Art. 25(C) - "Death marks the end of human personality" b. La. R.S. 9:111 i. A person will be considered dead if in the announced opinion of a physician, the person had experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if the announced opinion of a physician the person has experienced an irreversible total cessation of brain function. Death will have occurred when the relevant functions ceased. 1. Death occurs when the functions cease, not when the doctor announces it. c. Death without "irreversible cessation of spontaneous respiratory and circulatory functions" - EXAM i. Absent Person: LaCC art. 54 - One who has been an absent person (not just absent) for five years is presumed to be dead 1. "absent person" - art. 47: one who has no representative in this state and whose whereabouts are not known and cannot be ascertained without diligent effort. 2. Upon petition by an interested party, the court shall render judgment declaring the death of the absent person and shall determine the date on which the absence commenced and the date of death. a. Effect: the absent person's legal personality terminates. Even if they aren't really dead. 3. Hurricane exception: if the absence occurred during or related to Katrina or Rita, the absent person who is not currently charged with a felony is presumed dead after 2 years. ii. Presumption of Death: LaCC art. 30 & 47 1. When a person has disappeared under circumstances such that his death seems certain, his death is considered to have been established even though his body has not been found. a. Result is termination of juridical/legal personality 2. Has to be pursued by an interested party - not automatic

4. Procedure for minor adoption

Termination of parental rights b. Adoptive parents file petition with court and attach TPR c. DCFS investigation of adoptive parents i. Background checks, abuse registry, homestudy ii. DCFS gives recommendation if satisfied d. Hearing within 30-60 days to determine if the potential placement is in the BIOC e. Temporary order of adoption issued f. Placement in adoptive home i. 6 months to a year ii. DCFS makes 2 home visits to check on kid g. Final hearing on the BIOC h. Final Adoption decree rendered.

c. Adult Adoption

The adoption of someone "who has attained the age of majority" 1. Ex: you have a stepdad, but your real dad doesn't want to surrender you. So, once you turn 18, you can get adopted by your stepfather so you inherit from him, etc. - also weird since your real mom is still with you. ii. Old controversy: pre-Obergefell gays used to adopt each other since adult adoption gives similar legal rights and duties as that of a marriage. 1. One will adopt the other 2. Provides: a. Inheritance benefits b. Wrongful death actions c. Tax advantages ' d. Insurance benefits. iii. Methods: Methods to perfect adult adoption 1. Notarial: By authentic act alone a. When the adoptive parent is the spouse or surviving spouse of a parent of the person to be adopted (stepparent situation) 2. Judicial: By authentic act with requirement of judicial authorization a. Judicial authorization that the adoption is in the best interest of both parties - much more relaxed standard compared to minor adoption iv. Spousal concurrence 1. If either the adoptor or adoptee are married, you need to get spousal concurrence with the adoption a. This is because the rights and duties attached with adult adoption affect the person's ability to fulfill their spousal duties to their existing spouse. v. Recordation 1. Adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law. 2. Usually only to make it effective against third parties 3. "no recordation = no adoption" vi. Effect; 1. the adopting parent becomes the parent of the child for all purposes and the filiation between the child and his legal parent is terminated, except as otherwise provided by law 2. Exceptions exist: a. Biological parent inheritance exception - adopted person and his descendants retain the right to inherit from his formal biological parent and the relatives of that parent. b. Stepparent exception - you can drop one and not the other c. Biological grandparent visitation goes away - visitation is for minors

Effect of 185 Presumption

The presumed father is the legal father for all intents and purposes 1. Things like child support, love & affection, education, inheritance from child, child inherits from him, etc. attach to legal fatherhood. ii. All rights and duties between parents and children flow - every possible legal consequence will result from 185 presumption 1. This is important because this isn't true with every presumption (198) 2. All parental/child rights flow both ways: to child and to father iii. EXCEPTION - Succession of Cosse 1. Facts: M and F married, live together, but legal separation eventually. Don't get divorced for a very long time. Mom gets a BF and lives in sin. She has 3 children while living with BF: 2 while still married to H and 1 in the 300 days after the termination of marriage with H a. 185 is triggered for all 3 and F is presumed the pappy b. Only one child survives, and his children are making a claim for F's succession - alleging they are F's grandkids under 185 and are entitled to inheritance despite never actually meeting the man. 2. Court: refuses to recognize 185 presumption here because it would be inequitable to recognize such a presumption. a. Refuse to recognize "where it would render an inequity" b. 185 shouldn't be used solely for financial gain - here there was no relationship between grandkids and F. 3. Easily distinguishable facts from most realistic situations for 185: grandkids, very long time, no contact, etc. iv. EXCEPTION - Bouquet v. Bouquet (same sex) 1. 185 applies in gay marriage too! 2. Facts: 2 women married after Obergefell in LA. At the time of the marriage, 1 is pregnant and gives birth to a kid in the marriage. The non-biological 86 wife is presumed to be the legal mother under 185 3. Carrol says bad result: 185's whole purpose is to get the biological parent with the kid. It is based on a biological presumption. a. Makes no sense to use a biological presumption to make a non-biological mother a legal parent via the presumption. 4. Non-biological mother couldn't disavow the kid because of preemption in the case: but this also doesn't make sense because everyone knows she isn't related to the child. Makes. No. Sense.

d. Posthumous conception with written consent

This is not like presumption of proof by positive evidence ii. 9:391.1 - gametes in general iii. If the spouse specifies in writing to use his sperm after his death and the child is born of the surviving spouse within 3 years of decedent's death, the child is deemed a child of the decedent. Dead dude is legal father.

Adoptive Filiation (2nd flavor of filiation)

Two ways a. Voluntary: Biological parents want to give up parental rights b. Involuntary: biological parents are shit and state requires their rights be taken

i. Visitation 1. Visitation of parent

a. Art. 136(A) - Subject to R.S. 9:341 and 364, a parent not granted custody or joint 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 b. Generally, visitation is "a species of custody" - "time with a child outside of primary custody" i. Time with the child by the parent without primary custody c. Troxel states that parents are entitled to reasonable visitation. i. Parents are the only people with such an entitlement

Confidentiality of Child Adoption

a. Generally, LA makes adoption very confidential. We completely cut biological parents from child to the point where they would have trouble finding each other even if they wanted to. b. You have to get a court order under "compelling necessity" to access adoption records - we really don't want you finding your pappy. c. Violation leads to jail time or fines d. Open adoption is a growing trend i. At adoption, the parties come to an agreement to keep in touch ii. The parties are free to agree to whatever: yearly pictures, monthly dinner, etc. e. Voluntary Registry: i. When a child turns 18, they can register in the registry. Birth parents also register with information. When a match is found, a state employee can offer to facilitate a meeting or exchange of information. 1. Danger: helps a kid come back and demand inheritance from you f. Recent controversy is concerning access to original birth certificates since they have OG parent's names. i. Carrol says stupid

ii. Substance of the Rights and Duties Between Spouses: Fidelity, support, and assistance (art. 98) 1. Fidelity

a. Positive duty: "submit to each other's reasonable and normal sexual desires" (KNOW THIS LANGUAGE) i. Absent some good excuse or justification - spouses must commit or engage in sex with their spouse & persistent refusal without justification over a long period of time is actionable as a violation of the positive duty of fidelity ii. Shenk v. Shenk: H and W didn't have sex for 12 years. H asked W 3 or 4 times, she denied him and he never tried again. We need a persistent refusal. No breach here. iii. Bechman v. Bechman: W complained that H never initiated and only had sex once a month. 1. We need a persistent refusal over time without justification - mental and physical conditions are considered iv. Currier v. Currier: W says she wouldn't have sex with husband because he was always drunk at 2AM when he'd ask. And W suspected H cheated. So this was a good enough justification. W also claimed headaches which is a justifiable excuse. v. IF THERE IS BREACH: you cannot sue for damages, but proving breach of duty of fidelity is important for spousal support 1. La. CC art. 112(A): When a spouse has not been at fault prior to filing a petition for divorce and is in need of support, based on the needs of that party and the other's ability to pay, the spouse may be awarded final periodic support 2. You have to be free from fault: breach of the positive duty of fidelity = cruel treatment . . . cruel treatment = fault 3. In covenant marriage, cruel treatment is legal ground for separation as well - keep in mind. vi. Possible constitutionality issue: forces spouses to have sex. Lawrence v. Texas says the state has no interest in regulating sex live of consenting adults in their own homes. Clear conflict. b. Negative duty: art. 98(b) - the duty to refrain from adultery - now that is grounds for fault-based divorce1 so idk these days i. Defining adultery is hard - for sure "coitus" (hetero sex) 1. Oral sex = adultery - Menge v. Menge 2. Touching genitals = adultery - Bonura v. Bonura a. "naked heavy petting" 3. Homo sex = adultery - Adams v. Adams 4. Cyber-sex = not sure 5. Sexting = not sure 6. Hugging & kissing = not sure 7. Artificial insemination = possibly, it "lends sexual potential" such that it depends on the public policy against adultery and what defines it. a. If worried about marriage harmony: more expansive definition b. If worried about illegitmate kids: more restrictive definition of adultery 1 Fault-based divorce grounds: Adultery, Felony & conviction, and abuse ii. Proving Breach: we have to allow circumstantial evidence, but it must "outweigh any other reasonable alternative" 1. A confession alone is not enough: people have an incentive to lie and confess to adultery just to avoid the no-fault waiting period of .5/1 year. 2. Circumstantial evidence such as having a private investigator catch spouse kissing/hugging other is not alone enough but can be used to build a case. Very fact intensive. iii. Arnault v. Arnault: The negative duty of fidelity is owed until a judgment of divorce is granted! - here after W files for no fault divorce, H reconvenes on grounds of adultery. Private investigator saw W kissing man, go to house with lights off, etc. and court buys it. 1. Dissent reminds us to be skeptical of PI without pictures - their job is to find adultery 2. BUT remember that for final periodic support, you can commit fault after filing. But you risk a fault-based ground being brought. iv. Bennett v. Bennett: H testified that he went on trips with a mistress, but couldn't have sex because of a vasectomy. 1. Court found adultery b/c he had no evidence that his dick didn't work. 2. Two elements: a. Opportunity to commit b. Intimate relationship v. NOTE cases: Williams and Feazel had proof that child born was not theirs. H in both claim adultery in disavowal action. Despite clear adultery, court does not allow H win because the child would be fatherless vi. Sanctioning breach of negative duty of fidelity 1. Interspousal bar (9:291) bars suit for positive duty, but not for negative in a limited way 2. One of the 3 exceptions is for adultery - so you CAN sue for breach of negative duty in order to get fault-based divorce 3. Breach is also fault for spousal support in the same way that breach of positive duty is - breach=cruel treatment=fault=no support.

2. 197: Action brought by the child: "filiation action"

a. Prerequisites i. A child can bring this even if presumed to be the child of another man ii. The most common action is that the child wants to collect child support - asserting claim against man who never married their mother and who never formally acknowledged the child. iii. "a child may institute an action to prove paternity even though he is presumed to be the child of another man. If action is instituted after the death of the alleged father a child shall prove paternity by clear and convincing evidence. For purposes of succession only, the action is subject to a preemptive period of one year, running from the death of the alleged father. iv. Who can bring: potentially successors! 1. 198 says its strictly personal and this one is silent, so we can assume that 197 can be brought by grandchildren and shit a. Could create cosse problem. b. Proof: (all relevant evidence) i. Before death: preponderance of the evidence 1. Lesser because we establish a link ii. After death: Clear and convincing evidence 1. Higher bc of fear of fraud c. Can create DUAL PATERNITY i. When one person is already presumed to be the father and the child brings an action under this or 198, we add that new dad on without removing the presumed father. 1. We are the only state that recognizes dual paternity ii. Means the kid has 2 legal fathers - double up dat support d. TIME: 1 year peremotion from father's death in a succession action, but if dad is still alive, there is no time for prescription

Anatomy of a worksheet: Joint Custody 6. STEP 6: Additions and subtractions to the basic child support obligation

Additions: i. Net childcare costs - (9:315.3) 1. Mandatory 2. Determined by applying the Federal Credit for Child and Dependent Care Expenses provided in IRS form 3. Reasonable child care expenses incurred by either parent while receiving job training or education necessary to obtain employment or enhance earning potential may be added unless such expenses unreasonably burden the payor. 4. includes tax considerations, etc. - you'll need an expert here a. stuff like daycare, etc. NOT school. 5. If we add a number here, it is big ii. Child Health Insurance Premium 1. Discretionary to a degree. Court may order a party to enroll an insurable child in a health benefits plan. If the court orders this, it must be added to basic child support obligation. iii. Extraordinary Medical Expenses (9:315.5) 1. "Half Discretionary": "by party agreement or discretion of the court" 2. "extraordinary" = not covered by insurance and exceed $250 per child per year iv. Extraordinary (nonmedical) Expenses 1. Discretionary: statute names three a. Very controversial since it can double the burden of support. 2. By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation: 3. (1)Expenses of tuition, registration, books, and supply fees required for attending a special private school to meet the needs of the child a. Used to say "particular educational need" but now just need b. The history of the child, stability, and BIOC are important. c. The time the child has been attending the private school is VITAL. i. Very liberal: a week could be enough. d. Add cost of tuition for the year and divide by 12 for monthly 4. (2) Any expenses for transportation of the child from one party to the other. a. Includes bus/plane ticket to get kid back and forth. b. This is why JC of parents far away that are poor isn't a good idea. "frequent and continuing contact" is the goal. . (3) Special expenses incurred for the child rearing intended to enhance the health, athletic, social, or cultural development of the child. a. Ex: camp, travel, sports, etc. b. Parents split this b. Subtraction: i. Child's Income 1. Mostly discretionary: Not applicable if the child is earning money while a full time student - regardless of if on break.

of persons

" = Book I of the LACC = Family Law in Louisiana a. Juridical relations split into Extra-Patrimonial and Patrimonial i. Patrimonial Right: Susceptible to pecuniary valuation and can be done without offending society (some things you don't want to put a price on) ii. Extra-Patrimonial Right: Not susceptible to pecuniary valuation 1. Ex: Marriage (the love part) 2. THIS IS GOVERNED BY THE CIVIL CODE b. The Spousal relationship is extra-patrimonial and is an issue of private law i. This means it is governed by the civil code ii. Private law because it regulates dealings between individuals 1. But there are some areas the FedGov steps in a. Gay marriage b. FedGov child support guidelines so it can be enforced across state lines (DCC stuff) c. *Family law is all of Book 1 of the LACC* i. Title 9 of LARS also apply and are fair game on the exam

III: The Marital Relationship A. "Marriage is a legal relationship between a man and a woman that is created by civil contract. The relationship and the contract are subject to special rules prescribed by law."

"Marriage is a legal relationship between a man and a woman that is created by civil contract. The relationship and the contract are subject to special rules prescribed by law." a. MUST KNOW THE WORDS - art. 86 b. "Relationship" - means marriage is not an entity, it is simply a legal relationship between parties i. You can't sue the marriage itself ii. Spouses in LA form a community property regime unless they contract otherwise. The LASC says the community property is neither an entity nor a juridical person c. "Legal" - church is not involved - civil law rules supreme in marriage i. Marriage is a civil contract governed by state law rules ii. Religious recognition is distinct from legal recognition and even today remains separate. d. "between a man and a woman" - "prohibits" same-sex marriage i. Technically unconstitutional because of Obergefell decision on June 26, 2015 < important date e. "that is created by civil contract" - if marriage is a contract then some of the rules of contracts apply to it. i. The marriage articles, articles on conventional obligations, and the articles on obligations all govern the marital relationship. 3 sets of rules for marriage. 1. When the articles conflict we defer to the ones that apply specifically to marriage (marriage articles) a. Problem: what about no conflict but partial differences?

c. SPOUSAL SUPPORT - Art. 111-114 (2019 new stuff)

"Spousal support is wholly discretionary" - the court doesn't have to award it. 1. Stark contrast with child support, which is mandatory. . Spouse can be compelled to pay money to the other spouse 1. Alimony used to only be available to wives, but that got fixed. But in practice it is still gendered. a. We only have two reported appellate cases in which a man got spousal support since the 1979 change. iii. Art. 111: "In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following articles" 1. "in a proceeding for divorce or thereafter" - appears someone has to file a petition before getting support. a. We pretend this doesn't exist! b. 9:291 - interspousal bar to suit - exempts "the big three" i. this means that as long as spouses live apart, they can sue each other for spousal support. No filing needed. ii. Big 3 don't need a petition for divorce to be filed first because exempted from 9:291 iv. There are 2 flavors of support: Interim (113) and Final (112) v. Interim Spousal support - 2019 version of Art. 113 - aka "alimony pendente lite" 1. Upon motion by a party, a court may award a party interim spousal support allowance based on: a. Needs of that party (claimant) b. Ability of the other to pay c. Standard of living of parties during the marriage 2. Interim spousal support ceases 180 days after the final determination of divorce. Meant to keep the weaker spouse afloat during the hang time leading up to actual divorce. 3. Element 1: Needs of that party a. Discretion is handed to the court to determine "need" i. We turn to caselaw b. "insufficient income with which to support self" was recently changed to say "need" such that we consider factors other than income alone to determine "need" for interim support c. Arrendell v. Arrendell (376) i. T.C. considered W's earning capacity and she appeals ii. The court considered: 1. 3 years unemployed 2. Part-time secretary work in the past 3. 25 years "taking care of the home" iii. Wife's opportunities are severely limited because she was out of the work world for so long. iv. Court: it is not appropriate under these facts to consider work history and earning capacity for interim support. Status quo during the marriage was for her not to work, so why hold that against her now? 1. This is fact-based decision - not a general rule. Hinges on the status quo here. d. Kirkpatrick v. Kirkpatrick i. H is in military and is transferred to TX. W stays behind and H commutes. H transferred to FL, and W says nah and decides she doesn't want to be married to H. ii. H files for divorce in TX but is denied for lack of jurisdiction. W files a rule for spousal support. 1. Consider: are they living separate and apart? Remember we need intent too, so note when that shift happened. Once they are actually separate and apart, 9:291 is triggered and W can file for interim support even though no divorce filing was ever made. iii. H says W shouldn't get a raise in interim support because of her high earning capacity. 1. Court considers earning capacity here - she was educated, had her own business, and could get a job at the nearby hospital. 2. The holding in Arrendell was fact-specific: both cases are good law. 3. Times have changed since arrendell: wives are more likely to be working so status quo is less and less likely to get in the way of determining earning capacity.

FPS 5. Award Limitation:

"The sum awarded under this Article shall not exceed one-third of the obligor's net income. Nevertheless, when support is awarded after a judgment of divorce is rendered when the court determines that a party or a child of one of the spouses was the victim of domestic abuse committed by the other party during the marriage, the sum awarded may exceed one-third of the obligor's net income and may be awarded as a lump sum."

iii. Legislative order of preference

(agreement, joint, sole)

Connivance - was used once

1. Schwartz v. Schwartz: W tries to set up H in adulterous situation. a. "If you encourage the adultery, you can't use that adultery for defense" 2. Modern application: connivance as a defense for adultery in swinging couples and open relationships a. Probably not possible - would be problematic for a modern court to allow connivance to apply in such scandalous relationships b. Art. 98 public policy implications suggest this is a no-no

Modification/Change in Child Custody

1. There is no clear standard, so we turn to Art. 131 - Best Interest of the Child. a. "the continuation of present custody is so deleterious to the child as to justify a modification of the custody decree, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child" 2. McCorvey v. McCorvey (Outkast case) a. H tells daughter that mom isn't black enough and wont let her play with white dolls, etc. i. Lots of arguing w/ n-word ii. H listens to profane lyrics and kid repeats "Hey Ya" by Outkast2 b. M wants to reduce D's time with the kid. She gets it because it is in the best interests of the child to spend less time with D. 3. Bergeron v. Bergeron: a. M initially has SC. Dad is on attempt number 4 to get JC. He eventually gets JC and becomes DP. D argues its in BIOC. b. LASC says no - he failed his burden. i. BIOC & Material Change in Circumstances ii. "Must show that a change in circumstances has occurred such that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child" MUST KNOW!! 1. Much higher than BIOC alone. 4. Conflicting standards: McCorvey (BIOC) and Bergeron (Change in BIOC) a. McCorvey had a consent decree: parties agreed to the judgment. The court takes the agreement and makes it their judgment. 2 "I don't want to meet your daddy, I just want you in my Caddy" - Grammy-winning lyrics b. Bergeron had a considered decree: parties didn't agree, went to trial, and the court made the decision i. Consent decree: Apply the 131 BIOC standard ii. Considered Decree: Apply Bergeron standard. (so deleterious . . . or benefits substantially outweigh harm. 1. Why: judicial efficiency 5. Reasons for Change in Custody a. Most common is RELOCATION i. 9:355.1-.17 ii. 9:355.1-.2: Modification is required if a parent tries to move with the kid: 1. Out of state; OR 2. Greater than 75 miles away iii. If triggered, the other parent is entitled to a "notice & objection" procedure in which they lodge a written objection to the move. This triggers a judicial hearing. iv. Relocating parent has 2 burdens: 1. Good faith 2. Best interests of the child v. Moving a substantial distance can effect the child's relationship with parents, and we want the court to get involved to allow/prevent such a move from happening. If the move happens, then we HAVE to modify the custody. vi. After moving party gives notice to other parent and the other parent objects, then the moving parent has to prove: (1) the move is in good faith; (2) relocation is BIOC vii. Good faith: the relocation has to be for something other than to avoid bad blood. We are preventing parents from moving just to alienate the kid. 1. Usually met if moving parent got a good job elsewhere. (good house, job, school district, etc.) viii. Best Interest of the Child 1. 9:355.14 gives 12 considerations to determine best interest ix. Curole v. Curole 1. Denies M request to move to OH with kid for business opportunity. a. La. Grandparents in LA have close bond with the kid. M and D hate each other. D has no connection to OH and visitations would be in a hotel room 2. Relationship between kid and D would be severely impacted. Also new OH job wasn't much better than LA job. 3. Result: M can move, but custody is modified x. Payne v. Payne: Court grants M move to MS from LA. 1. M is from MS and her family is all there. She came to LA just to marry D and wants to start again in MS. So good faith met, BIOC? a. D was having affairs and leaving needles out. D also had no problem driving to MS to date M, so he cant argue that now. Also M is getting 25% salary increase in MS. xi. Hernandez v. Jenkins: Finances is the most important factor and holding mom in LA, despite loving dad, would force kid into financial ruin. 1. M doesn't have a job in new state, but she will live with a wealthy man. Court considered this in saying she'd be better off financially going to MS anyway. xii. Holley v. Holley 1. Case triggered by in-state move of over 75 miles. 2. Court measures the 75 miles "as the crow flies" to avoid having to compare 5 different map apps since it was right on the line. a. Carrol says stupid as shit.

0. Modification of FPS doesn't work if it interferes with art. 98 duties

. Art. 116: the obligation of final spousal support may be modified, waived, or extinguished by judgment of a court or by authentic act or act under private signature acknowledged by the obligee b. Ex: "excusing" adultery - if a waiver touches anything regarding fault/adultery/support, you violate art. 98 and the whole thing is null i. Mostly seen in adultery context.

Contract of marriage - requirements (CM require these plus more)

. Art. 87: Requirements of a valid K of marriage: 1. Absence of legal impediment (4 impediments) 2. A marriage ceremony 3. The free consent of the parties to take each other as husband and wife, expressed at the ceremony.

. Relative Nullity

. Art. 95: A marriage is relatively null when the consent of one of the parties to marry is not freely given. Such a marriage may be declared null upon application of the party whose consent was not free. The marriage may not be declared null if that party confirmed the marriage after recovering his liberty or regaining his discernment. ii. Key is lack of free consent: (see art. 93 for vices) 1duress 2. Incapability of discernment a. Retarded/insane b. Drunk or high (to the point that there is no knowledge/ability to consent) c. Age: 16 or 17 in marriage within 3 year age gap i. Beyond 3 year age gap = absolute nullity iii. Effects: art. 97 1. Only null if the party with no consent applies for it. The marriage produces full civil effects until declared null. 2. Putative marriage is only relevant to absolute nullity, not relative nullity a. The faith status of the parties is irrelevant for a relative nullity - one spouse can know the other is under duress/incapable of discernment and can still claim the civil effects of the marriage iv. Confirmation: cures a relative nullity - once the marriage has been confirmed the relative nullity ceases and the defect has been cured. Nobody can challenge the marriage now. 1. Marriage cannot be null if the party that originally lacked discernment or was under duress is no longer in that state and "confirms" the marriage 2. How to confirm: art. 95 - after regaining discernment or no longer under duress, the spouse cohabitates with the other spouse. a. Is a fact question: being roommates alone may not count. Sex is strong evidence. i. Generally: cohabitation together as a married couple with instances of sex is a strong indication of confirmation. v. Who can declare relative nullity? 1. Art. 95: Only the party with a lack of free consent can declare relative nullity (assuming no confirmation has happened) vi. Review: 1. Full civil effects unless and until declared null 2. Spouse whose consent was not free can challenge 3. Look out for confirmation - big fact discussion to have there e. Random: people prefer annulments over divorce because of time and emotion. i. Time: In a no fault divorce you wait 6 months to a year, while annulment you don't wait. ii. Emotion: an annulment makes it like the marriage never happened, while divorce has a stigma and the marriage still lingers or whatever

Relevance of Fault FPS

. Claimant has to be free from fault to get FPS b. Freedom from fault requirement makes sense if FPS is a punishment - back when only fault-based divorce existed i. Now that no-fault divorce exists, why do we care about fault for FPS? Would it make sense to make it like interim support? c. Hypo: H is a surgeon, W is a house mom. H announces at a party that he is leaving the party with W's best friend. W the next day files a 102 divorce (because longer interim support). She files the petition - they live separate and apart for 10 months. W starts dating again, and H sends a private investigator and gets pics of W and new bf. H claims adultery and says she is "at fault" because the negative duty of fidelity lasts until a judgment of divorce - therefore she wouldn't be entitled to FPS. i. Art. 111: "free from fault prior to a proceeding for divorce" 1. Fault for spousal support purposes is only pre-filing. ii. Filing for divorce is essentially a license to commit fault for currently fault-free claimant 1. Exam: if a client wants to date someone and get a divorce, keep this in mind. d. Fault Grounds - "something that can be a cause for marital dissolution" e. Fault grounds for FPS: (1) adultery; (2) conviction of felony and sentence to hard labor or death; (3) cruel treatment or habitual intemperance which renders the common life insupportable; (4) public defamation; (5) abandonment; (6) attempt against the life of the spouse; (7) being charged with a felony and having fled from justice; (8) intentional nonsupport of a spouse who is in destitute or necessitous circumstances. f. Allen v. Allen i. H claims cruel treatment to prevent W getting FPS. Says that W was nagging, using his card, etc. ii. Fault that deprives FPS is not an imperfection - it is serious fault that is the cause of the marital dissolution 1. "petty quarrels & bickering are not enough" 2. Usually poor spending should be fault but under these facts it was not. g. Matthews i. H argues fault that W smokes weed. Could fall under "habitual intemperance" but court says NO. H knew W smoked weed before marriage, and there was no evidence that W was not performing her duties. ii. Again, we need serious fault that led to the breakup of the marriage (Allen) h. Burden of proof for fault & FPS i. Claimant usually bears the burden of proving fault ii. EXCEPTION: Burden shifts to payor if the divorce was done on grounds of adultery (Lagars) and abuse (new law) iii. Hutson 1. Claimant bears burden to prove freedom from fault. a. Character evidence is key - here the claimant brought friends and family 2. Once claimant makes prima facie case, obligor can rebut and prove fault iv. Lagars 1. In adultery and abuse divorces, it is understandable that reasonable cruel treatment would happen between spouses (yelling at cheating spouse) 2. So, in adultery divorce, claimant gets presumption of freedom from fault and initial burden is on obligor v. 2015: Abuse becomes grounds for divorce, so the Lagars exception applies to abuse cases too vi. 2019 - art. 112(c): all fault-based divorce triggers the lagars exception and shifts burden to payor to prove fault. 1. EXAM: this is a big incentive for fault-based divorce for your client if they might have to pay a lot of FPS

Modification of Child Support Award

. Generally: art. 142 - An award of child support may be modified if the circumstances of the child or either parent materially change and shall be terminated upon proof that it has become unnecessary 1. Stogner v. Stogner a. Old law - mom wants an increase in child support because of a change in circumstances. i. Change: different income for both parents b. Court says any change in circumstances is enough to adjust/modify the award i. Not a good law - would flood courts every time a parent got a raise. 2. In 2000, art. 142 was changed to require a material change in circumstances 3. "material change in circumstances" - no bright line on what is substantial enough to count as a material change a. Something that has a real impact on the child or the ability of a parent to pay b. Examples: i. Big ass raise ii. Involuntary loss of a job 1. Beware of voluntary undertakings by obligor iii. New disability that is very costly iv. More kids/other legal duties come up v. New serious need of the child c. It is up to the court to determine what counts here: on exam, be prepared to discuss what is "substantial" 4. What about remarriage? - it's a legal duty to a new spouse a. Changes the parent's ability to pay i. Remember for modification of child support we need a change in the needs of the child or a change in the parent's ability to pay! b. Likely won't modify most of the time: voluntary taking on a new obligation is not usually grounds for modification. i. BUT, this is grounds for deviation, so potentially the court can exercise deviation instead of a straight up modification that requires going back through the whole calculation. 5. Class Hypo: Father getting a substantial raise in income is enough for a material change in the circumstances of a parent - so, the court will have to go back and redo the child support guidelines a. On exam, it will be a tougher call than a clear big ass raise. b. Remember: child support is baed on the income of the parents, not time with the child!

Surrogacy currently (recap):

. If read narrowly, Louisiana law only forbids a monetary contract for traditional surrogacy. 1. At the time, IVF was not really prevalent yet. So law was silent on it. ii. What about uncompensated or gratuitous surrogacy? 1. The statute mentions surrogacy for payment, so could mean that uncompensated agreements are valid. iii. The real problem that was addressed by the Baby M Louisiana rule was "renting a womb" iv. Problems: fails to mention IVF surrogacy AND fails to mention surrogacy without an onerous contract

Divorce Jurisdiction

. Jurisdiction to render a valid decree of divorce is premised solely on domicile 1. Domicile is the vital inquiry into divorce jurisdiction 2. If valid decree rendered: Full Faith and Credit (Art. IV, § 1) kicks in and other states must recognize it. a. States must recognize other state's valid judgments of divorce ii. Williams I 1. Plaintiff is domiciled in the state rendering divorce 2. H is married in NC and goes to NV to get a divorce. In NV you need to be domiciled there for 6 weeks in order to get a valid divorce. Divorce period in NC was much longer (ex - LA used to be 7 years), and a the time a lot of states didn't allow the guilty spouse to even get a divorce. This is why NV was the H's choice. 3. H gets a judgment of divorce in NV and gets married to his mistress in NV. He goes back to NC and W says he committed bigamy with multiple wives. Hinges on if the NV marriage is valid. a. If H was truly domiciled in NV, then the divorce is valid and Full Faith and Credit forces W and state of SC to recognize the divorce and new marriage. 4. Court: Judgment is only valid if there is jurisdiction over the party. If there is jurisdiction, there is a valid judgment, and full faith and credit applies. a. Rule: as long as either spouse is domiciled in the rendering state - we will have jurisdiction i. A judgment from a state neither spouse is domiciled in is not valid and Full Faith and Credit is inapplicable iii. La CCP art. 10: Effectively says what Williams I says, but Louisiana-flavored 1. As long as EITHER spouse is domiciled in the state - we will have jurisdiction 2. A judgment from a state without jurisdiction should not be given FF&C - we don't want suitcase divorces a. If neither spouse is domiciled in the forum, then it isn't a valid divorce. i v. Judgments from other countries: FF&C doesn't apply to other countries 1. What about a divorce in Honduras and then come back to LA? a. The principle of comity: it is not required, it is discretionary, but we apply FF&C to these judgments. Comity applies to the same principles. 2. Evrett v. Evrett: no effect to a Dominican Republic divorce a. FF&C does not compel recognition even if a party was domiciled in the foreign country. FF&C is only for American jurisdictions. b. Courts have discretion to enforce these divorces but cannot be forced to 3. Clark v. Clark: no effect to Mexican divorce 4. Most case law declines to recognize foreign divorces like these. But the court does what it wants since it is discretionary and isn't actually precluded from giving FF&C to a divorce rendered in a foreign country. v. Collateral attacks on the judgment of another state 1. Without participation in the proceedings a. Williams II: you can collaterally attack a court's finding of divorce as long as you did not participate in the original proceeding i. W challenges, in NC, that H was not domiciled in NV when he got the divorce. 1. She can do this since she had no meaningful participation in the proceedings in NV. She didn't file anything in NV or make an appearance ii. W can sue in NC to attack finding of NV court, but only attack on the grounds of domicile. Problem is that we lack a federally consistent definition of domicile. Domicile: 1. Physical residence plus intent to stay indefinitely a. the intent is fact-intensive and takes a weighing of the facts of each case. b. Factors to show domicile: buy a residence, get drivers license changed, register to vote, and in LA you can file art. 45 declaration even though nobody does because its dumb. c. LACCP 10: maintained residence for 6 months triggers a rebuttable presumption of domicile i. Less than 6 months, burden is still on mover to prove they meet the 2 elements. d. Tjaden v. Tjaden: W gets divorce in NV where she has family. She takes her kids to NV with her and stays with the fam. She stays for 3 months and gets divorce. Comes back to Shreveport and then goes to TX and enrolls the kids there. i. Factors suggesting domicile: 1. Takes kids with her 2. Stayed with family there instead of a hotel 3. Goes to TX instead of going back to LA ii. Factors saying no domicile: 1. W speaks to lawyer before leaving 2. Leaves NV the day after the divorce is rendered 3. you keep your domicile until you actually change it in new place iii. court finds W was domiciled in NV . iv. WILL BE ON THE EXAM: if client wants a quick divorce, you could advise them to go to a different state (but explain jurisdiction and domicile risks) 2. With participation in the proceedings = res judiciata a. Sherrer v. Sherrer i. W goes to FL, stays 3 months, files for divorce. H is still in MA . ii. H hires attorney, enters into a general appearance, files an answer denying all allegations of petition, including W's allegation domicile in FL. iii. FL court dismisses his answer and grants the divorce. W gets married and comes back to MA after. 1. H cannot collaterally attack the divorce judgment in FL because he participated in the original proceeding: res judicata prevents H from raising the domicile issue again. He contested it and lost once, cant do it again. b. Johnson v. Muelberger i. D hires attorney, files answer in rendering court, but does not fight domicile issue initially. Can he collaterally attack now? ii. NOPE - he had the opportunity to challenge domicile when he participated in the out of state proceeding 1. Participation triggers res judicata and you cannot collaterally attack c. Succession of Bickham i. H goes to AR and gets a judgment of divorce. W does not answer or appear - but she signs a "waiver, entry of appearance, and answer" ii. W cannot collaterally attack: waiver triggers res judicata. 1. Any form of participation means you participated. 3. Rule: If you intend to collaterally attack jurisdiction of an out of state divorce proceeding, don't do anything in rendering state. vi. Choice of Law for Divorce jurisdiction 1. Problem: because of forum shopping and suitcase divorce, people can go get better grounds for divorce (Tjada case) 2. How to stop forum shopping: a. One state is required to give effect to another states' legislation - "choice of law" i. But, family law courts combine choice of law with jurisdiction (so in Tjada, choice of law was NV) b. Family law is the ONLY law that has this problem, all others separate jurisdiction and choice of law. i. So solution: make family law like all the other areas of law and separate choice of law and jurisdiction 1. Would result in applying the law of the "most interested state" - which likely would be the state that the marriage originally occurred in! c. But the rule remains: domicile is all we look at here, and law used ends up being the rendering court . i. Remember 6 month presumption and Art. 45 in LA and the 2 factors to prove if presumption doesn't apply. 3. Covenant marriage causes the forum shopping problem even worse: a. No fault divorce is 2 years in LA. Causes a huge incentive to move out of the state. i. Ex: CM in La is 2 years, could move to NV and get it in 6 weeks. 4. LACC art. 3521: a court of this state may grant a divorce or separation only for grounds provided by the law of this state a. Caroll says this is stupid law b. We should make not only a judicial jurisdiction inquiry but also a legislative jurisdiction inquiry. 5. Doctrine of Divisible divorce a. One state renders the divorce judgment - and then for incidental matters of divorce - we use personal jurisdiction and the International Shoe Test. i. This means incidental maters of divorce can be divided in other courts around the country other than the court rendering the divorce. vii. Venue: 1. Intrastate venue - art. 3491 - an action for an annulment of marriage or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile. 2. This is a mandatory venue p

102 No-Fault Divorce

. Live separate and apart after filing petition for divorce. The 102 petition is the time marker. ii. Not an ordinary proceeding! It is a summary proceeding: mainly goes faster since it lacks discovery or answers 1. EXAM: will have to make decision between flavors of divorce with all considerations. (factors like timing, termination of com. Prop., and determination of incidental matters) 2. Art. 159: termination of community property happens retroactively to filing of petition a. Important when choosing 102 or 103 - if you are breadwinner you choose 102 - 103 drags it out 3. art. 105: cannot achieve/get incidental matter determination until something is filed a. 103: no legal action occurs for a long time, so no 105 relief b. 102: allows 105 relief now pending final judgment. 4. La. R.S. 9:921 - no interspousal suits except divorce, spousal support, child support, and child custody - these can be sued for without prior filing - for these, 102/103 distinction doesn't matter iii. Procedure for 102: 1. file petition and serve (with notice) a. allege venue and jx - mandatory b. state desire to be divorced c. verify petition by affidavit i. you can file petition while still living together - you can live separate and apart after 2. Live separate and apart for the requisite period of time 3. file and serve (personal service only) a rule to show cause a. allege service, allege passage of time since service, and allege living separate and apart for the time since service of petition b. if you don't send the notice, petition is still valid. This is new law to fix lawyer ****ups. c. Originally filing party cannot voluntarily dismiss without a joint petition d. If nobody files the petition after the period of separate and apart - it is eventually waived via abandonment: 2 years form filing it is abandoned 4. Present evidence at a hearing a. Present the petition, return on service of petition, rule to show cause, and the return to show notice of rule to show cause, and you file a THIRD affidavit proving again your intent to divorce. iv. BIG defense to 102/103 divorce: Reconciliation 1. Art. 104: the cause of action for divorce is extinguished by the reconciliation of the parties a. The only affirmative defense recognized by the Code b. Burden: kinda both parties, but Lemoine v. Lemoine says that the defendant has the burden of showing affirmative defense of reconciliation - ass backwards but ok

11. Formulate Child Support Order

. Payment: The non-DM parent pays the DM parent i. The DM parent doesn't cut a check for whatever amount they are assigned under child support. b. Enforcement of Child Support Judgment i. Income assignment order - KNOW 1. Most used method of enforcement 2. Courts are REQUIRED to issue this in ALL CASES unless: a. Partners agree not to have it; or b. Court sees good cause not to enforce 3. Function: wages and benefits of obligor is paid directly to DCFS, and then DCFS forwards the sum to the obligee parent a. Automatic garnishment of wages 4. Examples of good cause not to impose: a. No delinquency in failing to pay for 6 months (stable payment history) b. Party not likely to become delinquent 5. *DEFAULT* unless one of the two reasons apply. ii. Revocatory and Oblique Actions 1. Annul act/exercise a right of obligor which caused/increased the insolvency iii. Suspension of license 1. Hunting license, professional license, drivers license, etc. 2. Can be counterproductive - how tf you gonna get to work to make money to pay child support if you get your drivers license taken iv. Lesser Payments of Court Costs and Attorneys fees 1. Arrearages for child support obligation 2. You automatically pay for lawyers fees and court costs if you didn't pay and other parent is bringing action to get arrearages from you. 3. Encourages lawyers to take these kinds of cases 4. Prescription for arrearages of child support 10 years instead of 5 like FPS v. Contempt of Court & criminal sanctions

Contractual modification of right

. Problem: art. 98 gives the duty to support, which cannot be contracted around. So how can one contract to end/reduce FPS? b. Art. 116 - you can contract to modify FPS i. You cannot modify interim support c. Holliday i. A waiver of interim spousal support is a nullity ii. The purpose of ISS is to maintain the status quo while the spouses are still married. Art. 98 duty of support still exists and you cant contract around that. 1. Interim spousal support is an extension of the art. 98 duty of support. 47 d. McAlpine v. McAlpine i. Spouses try to agree via K to dollar amounts for FPS and says W would get the FPS "regardless of fault" ii. Court allows modifications to FPS like this 1. Different from contracting around interim support because the art. 98 support duty doesn't extend FPS 2. Community property context: we allow wives to agree to waive that, so we should allow wives to wave FPS as well. 3. Also different from interim support because FPS is forever - interim is just an extension of art. 98. iii. Be careful: "regardless of spouses fault" - cases after McAlpine don't want you to waive a duty of art. 98. An agreement that says W can get support even if she committed adultery should be struck because it is circumventing art. 98.

. ENTRY TO COVENANT MARRIAGE - ADDITIONAL REQUIREMENTS (along with the existing requirements for TM) - La. R.S. 9:272

. Requirements: 1. 1: Express intent to enter into covenant marriage when applying for license a. Carrol says this is shit - you don't get the info packet for CM until you apply. So wtf. 2. 2: Premarital counseling a. The conductor of the counseling must be either a professional marriage counselor or a religious official b. Emphasizes the importance and responsibilities of marriage i. Emphasizes the lifelong nature of marriage (in theory) ii. Tries to bring church back into marriage 3. 3: Declaration of Intent a. Promise to take all the steps required to preserve the marriage 4. 4: Notarized affidavit signed by the couple and the counselor

3. Sole custody: Extremely Rare and only awarded if there is clear and convincing evidence that sole custody is BIOC. Super high hurdle. (art. 132)

. Sole custody is not that different from joint - usually a 4 week difference i. It's not worth the extra money and time to seek instead of joint custody, which is why (along with the high burden) sole custody is a rare bird ii. Sole custody is usually Every other weekend, alternating holidays, and 2 weeks in the summer. (JC is only 4 more weeks in the summer. b. Look for sole custody when you see domestic violence/substance/sex abuse ( most common) c. Post Separation Family Violence Relief Act - 9:361 et seq. i. Presumption that when a parent has a "history of perpetrating family violence" - the non-abusing parent gets sole custody 1. "Family violence" - physical/social abuse and any offense against the person listed in La. Code Crim. Proc. except negligent injuring and defamation. 2. "History" = one incident with substantial bodily harm OR more than one incident w/o substantial bodily harm ii. Restricted visitation 1. Supervised visitation: court finds family violence. Very rare to have overnight supervised visitation. Usually includes a social worker sitting with a parent and the kid for a few hours 2. No visitation: clear and convincing evidence of sexual abuse of the child. 4. Finding abuse is like a bomb going off - changes everything. a. Nguyen v. Le i. Husband chokes W, holds gun to W head, Hurts himself, etc. ii. Court does not apply PSFRA - W lacked any "clear and convincing evidence" that much of it happened except for one instance that did NOT lead to substantial bodily harm. b. CLS v. GJS i. Horrific child sex abuse case ii. Court uses entirely circumstantial evidence and says it meets the clear and convincing standard that sex abuse has occurred. 1. Court was presented with lots of evidence and concluded that since H was the only man alone with the child for any substantial time, he clearly sexually abused her. iii. H gets zero visitation until he attends classes and proves that he has changed 1. This means restricted/revoked Sole custody/visitation is rarely a permanent decision.

Prescription of maternal filiation

. There is no prescription for proving maternity. a. Cmt. A: "can be proven at any time" 2. Mom can argue maternity 35 years down the road - its ok here a. Contrast with other articles with specific prescriptive periods

Temporary use and occupancy of the family residence and other property

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

Element 2: ability of the other party to pay

. We look to income and wages; the entire patrimony of assets. We also look at their existing debts. b. Alexander v. Alexander i. You look at the entire financial situation to determine if payor can pay 1. Debts, assets, ability to earn, wages, etc. ii. "also any resource from which the wants of life may be supplied, and the entire financial condition of the spouse owing such obligation must be examined"

Final Periodic Support - art. 112 - "permanent alimony"

1. Art. 112: When a spouse has not been at fault prior to the filing of a petition for divorce 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. 2. Old rationale for FPS is that wives in the old times stayed at home with no job experience, so post-divorce the wife would be screwed a. Now, FPS is a rare award - wives work now 3. FPS was also seen as a way to punish or award damages following a marriage. But now that no-fault divorce is so popular, this rationale is dated too. 4. Factors: a. Need b. Ability to pay c. Illustrative list of 9 considerations (from Loycano) i. The income and means of the parties, including the liquidity of such means. ii. The financial obligations of the parties, including any interim allowance or final child support obligation. iii. The earning capacity of the parties. iv. The effect of custody of children upon a party's earning capacity. 1. Carol doesn't like - double-considers child custody v. The time necessary for the claimant to acquire appropriate education, training, or employment. 1. Seems less than permanent since time limited. Arnold v. Arnold says that a court can choose to set term support - here was 4 months. 2. Vincent v. Vincent gave a 5 year award of final support - signals a move away from permanent FPS vi. The health and age of the parties. 1. Roan - wife had 2 strokes. vii. The duration of the marriage. 1. 112 Comment D: "affords the court a means of assessing a spouse's habituation to dependency during the marriage impairing their earning capacity" viii. The tax consequences to either or both parties. 1. Spousal support used to have tax consequences, but now tax neutral to both parties as of 12/31/18

rebuttal By mother: Contestation action (art. 191)

1. Mother can bring a contestation action to show a presumed father is not the real father. 2. Burden: a. Clear & Convincing evidence that: i. Presumed father isn't the father; AND ii. Present husband is the father Means marriage is requirement b. Present husband must acknowledge the child by AUTHENTIC ACT i. Technically a third requirement. 3. Summary of burden: Mother must prove, by clear and convincing evidence that the current presumed father is NOT the father (with corroborating evidence) and the Married husband IS the father (no corroborating evidence needed). In addition, the current husband must have already formally acknowledged the child as his own via authentic act. For time, there is a preemptive period of 180 days running either from the time of marriage to current husband AND before the child turns 2 - whichever is shorter of the two. This is absurdly short , which shows that we really don't want to traumatize the kid. Very rarely can a mother meet all of these requirements for a contestation action in order to rebut the strong presumption that comes from 185. 4. TIME: Peremptive period of 180 days from marriage of current husband AND before the child turns 2 - the shorter of the two really

i. Mental/Psychological Disorder defense

1. Only applies to fault-based divorce 2. Coureville v. Coureville a. Wife is a schitzophrenic i. Wife hits husband and other crazy shit b. Court says wife's actions are excused by her mental illness. 3. Doane v. Benenate a. Court says wife's behavior is excused because it is actions stemming form her mental disorders b. She has schitzo and caused her to go crazy and kick him out the house . Seltzer v. Seltzer a. W claims mental illness. H asks for separation based on legal fault - mainly because W was guilty of adultery b. W claims she is clinically depressed and lonely, and that her adultery should be excused on those grounds c. Court says repeated adultery is not excusable ya hoe d. The mental illness must cause the behavior that constitutes the fault - multiple adultery events isn't gonna cut it 5. The causes for divorce (adultery, felony, and abuse) are all defensible with mental illness, but that mental illness must actually cause the fault. Highly doubtful it'd work in most cases though.

v. Third-party Custody

133: if an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to: a. Another person the child has been living with in a wholesome and stable environment; OR b. Otherwise to any other person able to provide an adequate and stable environment 2. Why we require substantial harm: SCOTUS told us BIOC alone is unconstitutional under Troxel a. Troxel: parents have a fundamental constitutional right to make decisions of the child i. any intrusion on the fundamental constitutional right has to "tread lightly" ii. The statute struck down in troxel allowed third party custody if BIOC - so to be constitutional we gotta require more - enter "Substantial harm" 3. "Substantial harm" - a. Miller v. Miller: GPs get custody. Parents met online, M is form OK and D is from LA. They break up, play porn in front of kids, kids have fleas, etc. i. GP's get custody here because it rises to level of substantial harm. b. Creed v. Creed" Mom bounces from house to house on couches, dates married people, etc. Dad is abusive. Court said mom has a sad financial situation, but being poor alone does not lead to substantial harm for these purposes i. Mother still loves the kids. 4. We CAN award Joint Custody between parent and GP - increasingly done recently.

rebuttal by presumed father: disavowal action

187- the husband may disavow paternity of the child by clear and convincing evidence that he is NOT the father. a. The testimony of the husband is NOT self serving: corroborating evidence is needed. 2. 190: Husband's heirs can bring action too a. Same burden of clear and convincing evidence - and again corroborating evidence that husband didn't have sex with the mother is needed. i. Very hard for a successor to prove 3. Mock v. Mock a. Evidence that can be used in a disavowal action b. Husband/successor testimony alone is not enough. You must have corroborating evidence. i. Ex: documentation, witnesses, etc. ii. DNA is still never used. 4. Expiration: PEREMPTIVE period of ONE YEAR a. 189: One year from the birth of the child or the day the dad knew or should have known he is not the dad, whichever is later i. Naturally the latter is the one that applies ii. "knew or should have known" is NEW - means you can find out 8 years later and then have a year for disavowal. Goes against the value of protecting child. b. 190: one year from the death of the presumed father i. We need certainty for the allocation of estate money and titles. ii. If dad's right to disavowal action has prescribed, the kids don't get the year again. What is dead stays dead. 5. If contestation action is successful, the husband that was the husband 300 days from birth of child (from date of birth) is no longer the father and we turn to the husband of the mother at the time of birth. 6. EXCEPTION TO DISAVOWAL ACTIONS: We don't allow a father to bring a disavowal action in one case: art. 188 - the husband of the mother may not disavow a child born to his wife as a result of assisted conception to which he consented a. Even if the sperm is from a donor because he shoots blanks, we wont let him disavow dat baby

e. Child Support (third of the big three)

2 Code articles: 141 & 142 1. 141: possibility of award 2. 142: modification of award ii. Possibility of Award - Art. 141 - "In a proceeding for divorce or thereafter, a court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support" 1. Parents owe their children a duty of support even if child is illegitimate 2. Before child support: we need a filing of petition for divorce a. No law talks about child support for parents not married or not yet filed for divorce - BUT IT STILL APPLIES b. Pretend the filing requirement doesn't exist 3. Guiding Principles: Under 141, we look at needs of the child and ability to pay a. Needs of the child: "standard child experience child had when parents were still together" - we want to preserve a standard of life the child already grew to expect i. "Need" is interpreted very liberally for child support - not so for spousal support 1. We look to the standard of living of the child in "the best of times" b. Ability to Pay: an obligation extended to both parents i. We have extremely detailed statutes determining the ability to pay and for how much - 9:315 and following 1. More on this coming up 4. Payment to a parent - exam discussion a. The money paid in child support "belongs" to a child, but it can't be literally given to them. It is paid from one parent to another. i. It would be far too costly and complicated to set up an administrative scheme where we have a separate account for the kid - that'd require more court time, appointing a tutor for the account, etc. ii. Problematic because the paying parent feels like its going into the pocket of the domiciliary parent. 1. Parent with custody of the kid doesn't "pay" them self - their child support burden is raising the kid

Complications 1. Regarding Surrogacy -

2 types (traditional and gestational) i. Traditional 1. Surrogate is artificially inseminated with sperm that fertilizes her own egg 2. Surrogates egg is used so she is the biological mother 3. BUT, she is not the intended mother a. Plan is that she will give up the child b. Someone else will parent the kid ii. Gestational 1. Another woman, not surrogate, gives her egg 2. Surrogate is IVF with embryo from another woman a. Surrogate is just the carrier 3. Another intends to be the mother: so it gets wild a. Donor egg woman b. Woman with implanted egg c. Intended woman b . So who is the mother: person giving birth, person giving egg, or the intended mother?' i. Louisiana statutes are unclear ii. Louisiana's surrogacy law is flawed due to its reliance on the "Baby M" case. iii. Baby M Case (traditional surrogacy) 1. W is doctor and H is chemist. Cant have children. They choose a surrogate to be artificially inseminated for a hefty price (10,000) 2. Surrogate gives birth and refuses to give baby back. 3. Held: Onerous Contracts for traditional surrogacy are not legal a. They are against public policy/interest b. We don't want to encourage "renting a womb" for clear reasons. iv. Following Baby M, Louisiana adopts the court's holding in La. 9:2719. 1. Prohibits onerous contracts for traditional surrogacy a. Compensated arrangement for insemination in an agreement to relinquish the child is not okay in Louisiana b. For insemination c. With agreement to relinquish the child. 3. What does this say about gratuitous contracts? Drafter intent was to prohibit surrogacy v. La. R.S. 9:2720 - Louisiana Permits some gestational surrogacy 1. Continues prohibition of traditional/genetic surrogacy (focus on genetic) 2. Permits & regulates gestational surrogacy a. "dual gamete requirement" - you need: i. A man donating sperm; and ii. A woman donating egg b. Hurts heterosexual couples and gay couples since it requires both parents be able to have children i. A big group of people looking for surrogate children are infertile/with an infertile partner 3. Allows only uncompensated surrogacy a. CA allows compensation b. Usually familial relationship 4. Requires a judicial approval process 5. Recognizes intended parents as legal parents.

Modification of Initial Award of FPS

2019 LACC art. 114: you can modify interim and final support b. You need a material change in circumstances i. Remarriage of obligor: not enough because it is a voluntary undertaking of the obligor. ii. Change in employment, remarriage of obligee spouse, surprise child, etc. might be a sufficient material change. c. Art. 115: Obligation of all spousal support is extinguished if i. Obligee is remarried ii. Death of either party iii. Obligee cohabitation: "cohabitation in the manner of married persons" 1. Used to say "open concubinage" but that left out the gays 2. "in the manner of married persons" = having sex d. Olsen: concubinage "in the manner of married persons" i. W said sex was impossible, but since they slept in the same bed and discussed marriage, that was enough 1. Lesson: sex is not required for cohabitation. e. Mitchell v. Mitchell i. H says he wants to retire, so support should be reduced. Retirement, like marriage, is a voluntary act and if the obligor undertakes a voluntary act then it does not amount to a material change in circumstances.

. Duty of Support - Reciprocal duty that used to only apply to H.

98(c) - financial support to furnish the necessities of life. Traditionally this meant clothes, food, and shelter. But it has been expanded to mean things like telephones, home appliances, and a car. b. "the necessities of life and its ordinary conveniences" depends on the situation and standard of living the spouses are used to c. Parties can contract support, but not below the standard i. A prenup that says the rich spouse will provide everything is void - this is a reciprocal duty dammit d. Consequences for breach - falls into an exception in 9:291: "spousal support, child custody, child support while living separate and apart" i. So you CAN SUE - usually a claim for specific performance ii. ONLY IF LIVING SEARATE AND APART e. Chi v. Pang: W and H are married but living separate and apart. H attacked W with a knife so she files for support and a restraining order i. Since art. 98 is not contingent on spouses living together ("married persons owe..") so she can sue for support and get it while separate and apart.

Regarding in vitro fertilized embryos: 9:130 (2nd exception to 184)

9:130: duties of donors: an in vitro fertilized human ovum is a juridical person which cannot be owned by the in vitro fertilization patients who owe it a high duty of care and prudent administration. If the in vitro fertilization parents renounce, 81 by notorial act, their parental rights for in utero implantation, then the fertilized ovum (in a test tube) shall be available for adoptive implantation. i. The IVF parents may renounce their parental rights in favor of another married couple, but only if the other couple is willing and able to receive the ovum. ii. No compensation shall be paid or received by either couple to renounce parental rights. b. IVF - surrogate is implanted with fertilized embryo from another man and woman such that she is merely the carrier of a child that is not biologically hers. c. If the IVF patients renounce, by notorial act, their parental rights for in vitro implantation, then the human ovum shall be available for adoptive implantation i. Remember: has to be a gratuitous contract ii. "IVF patient: should say "genetic patient" d. Once implanted, this rule doesn't apply and we go back to surrogacy situation i. Egg needs to still be in the lab.

. Regarding posthumous conception with written consent

9:391.1: Child conceived after death of parent: not withstanding 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 inherent from the decedent, as the child would have if the child had been in existence at the time of the death of the 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. i. MUST be within 3 YEARS of death of dad b. What about if the mom is the one that dies - egg of dead wife implanted into another woman i. Wife must execute in writing the authority for her husband to use her egg after her death ii. Naturally, the mother giving birth is the mother, but this might be what 184 is referring to 1. This statute allows for the egg-giver to be the mother even if dead 2. This allows someone other than the birthing woman to be the legal mother of a child!! Legally!!! iii. BUT, Carroll HATES this: it says "provided that the child is born to the surviving spouse" 1. Suggests that born to means born of, meaning that this statute only refers to the use of the dad's sperm - not mom's egg 2. Bottom line: WDK. Would be unconstitutional to not be gender neutral but the language of the statute suggests its not neutral.

Effects of Legal Separation - covenant marriage context

Availability of incidental relief i. Better for covenant spouses - Interim support for 2 years ii. 9:308(D): in proceeding for separation from bed and board in covenant marriage or thereafter, a court may award a spouse all incidental relief affording in proceeding for divorce, including but not limited to spousal support, claims for contributions to education, child custody, visitation, child support, injunctive relief, and possession/use of family residence/community movables/immovables. iii. BUT, spousal support is limited to Interim Spousal Support 1. Don't seek FPS in a legal separation a. ISS is higher anyway 2. No such thing as FPS if marriage hasn't terminated a. ISS = Alimony pendente lite - pending suit i. Exists until divorce. No cap on amount awarded.

Anatomy of a worksheet: Joint Custody STEP 9: "recommended" child support order

Can be deviated/adjusted from commonly b. Common: time spent between nondomiciliary parent and the kid in a JC agreement: more time leads to credit on the payment (73 days stuff) c. Guillot v. Munn i. Should a non-DP get credit for time spent with the child? How much? ii. Yes, but hell no to a percentage credit reduction that equals the percent time spent with the kid. 1. 40% of the year cannot mean 40% reduction 2. Can only be reduced if "extraordinary visitation" - 3 prong test iii. Three Prong Inquiry: 1. How much time did the parent spend with the child? 2. Is extra time spent increasing the financial burden on the parent? 3. Is the amount of adjustment in the BIOC? d. La. R.S. 9:315.8 - Legislature codifies Guillot i. Keeps 3 prong test ii. If a non-DP has physical custody of the child for over 73 days (1 day = 4 hours), then this is "extraordinary visitation" 1. Incentivizes shitty parent to spend more time with kid to reduce parent even if they don't really want to be around the kid. iii. It is in determining the amount to credit that we use the 3 prongs from Guillot. e. Aydelott v. Aydellott (347) i. 2 months of credit given because the kid is with mom for 2 months of summer 66 1. How applied: deducted from yearly obligation: she still pays every month, just less per month. 2. Why: child support is always a monthly obligation and that is an important message - you cant escape paying child support. ii. Courts typically give 1-2 months credit - be sure to spread it through the year! Subtract the credit from the total yearly amount and then divide by 12.

Judicial modification of FPS

Can be extinguished altogether if: i. The term set by the court runs out ii. Remarriage of the obligee, death of either party, judicial determination of cohabitation iii. Court finds a material change in circumstances iv. Authentic act duly acknowledged by the parties v. Passage of a preemptive period of 3 years from judgment. 1. You must claim for FPS within 3 years of divorce. 2. Preemption runs from the latest of the following: a. The day the judgment of divorce was signed b. The day a judgment terminating a previous judgment of spousal support is signed if the previous judgment was signed either before the signing of judgment of divorce or 3 years after c. The day of the last payment made when the spousal support was paid voluntarily d. No more than three years has elapsed between payments

F. Termination of Marriage

Causes - art. 101 i. Death of a spouse ii. Divorce iii. A judicial declaration of its nullity, when the marriage is relatively null 1. Not absolute nullity because AN is like marriage never existed iv. The issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law v. ALSO - La. R.S. 9:301 - the spouse of a military officer presumed dead can get a judicial declaration to remarry before getting a judicial declaration of death b. History of divorce and legal separation in Louisiana i. "everything old is new again" - we get rid of concepts and then bring them back later. Important theme of the history of divorce law and its current state. ii. Pre-1827: "legal separation" only - divorce was not possible in Louisiana. 1. Legislature allowed legal separation - aka "separation from bed and board" but divorce was not allowed since marriage was considered lifelong 2. There arose situations where divorce was completely necessary - so courts began to pass individual acts to allow divorce that literally by name granted certain people divorces. iii. 1827-1898: fault-based divorce became available to the innocent spouse 1. the only fault recognized was adultery a. years later, felony was added 2. if you met grounds for legal separation, you got that and then could get a divorce 2 years later if a ground for fault (adultery) didn't apply. a. Still had to make a showing of cruel treatment or abandonment from matrimonial domicile iv. 1898-1916: the party at fault could seek a divorce, but only after the innocent spouse sought legal separation. Guilty spouse had to wait before acting. v. 1916-Present: No fault divorce 1. At-fault spouses can get a divorce anytime regardless of separation 2. Both spouses could reciprocally get a divorce. In the beginning of 1916, LA was innovative for having no-fault divorce, but we made spouses live separate and apart for 7 years a. We amended it to 4, then 2, then 1, then 6 months 3. 2007: Wait time for no-fault is bifurcated a. 180 days if the marriage has no minor children, and 365 if the marriage does - KNOW THIS 4. Fault based divorce still exists too, with different flavors of fault 5. Legal separation still existed: you could get a legal separation and wait 2 years and then get a judgment of divorce (originally intended to side-step 7 year no-fault rule). Once the wait for no-fault was below 2 years, spouses started to pursue divorce more and legal separation less (unless fault-based) because it was faster now. 6. 1991: We got rid of legal separation for the above reason a. Useless now that no-fault was less than 2 years 7. 1997: We brought back legal separation for covenant marriages only a. Originally intended to allow separation when divorce was hard to get (1800s) i. Covenant marriage makes divorce hard to get again, so now legal separation has a use again.

Reimbursement of educational Expenses

Cc 121-24: action for reclamation for claims of educational contributions ' 1. Court may award a party a sum for his financial contributions made during the marriage to education/training of the spouse that increased the spouse's earning power to the extent that claimant didn't benefit during the marriage from the increased earning power ii. Prescribes 3 years from the date signing judgment of divorce iii. Envisions a situation where one spouse supports the other through school (ex: law school) iv. Inter-spousal bar to suit forbids suing for this before divorce

B. Varieties of Marriage:

Covenant marriage: La. R.S. 9:272-276 i. Created by Catherine Spaht, LA is one of 3 states that participate (AR & AZ). Goal was to bring the church back into marriage. ii. Makes entry and exit harder: you are required to get pre-marital counseling and counseling before you can leave the marriage (mostly). Counseling is typically done by a religious person. iii. 3% was the highest amount of people entering into CMs back in its heyday in 1997-98. b. Regular/standard marriage: regular flavored marriage

H. Effects of divorce and nullity

Cessation of Personal Effects i. Art. 98 duties (fidelity, support, assistance) end ii. Fidelity and assistance definitely terminate but support is less clear 1. Public policy is duty to support spouse during marriage 2. Art. 98 says married persons 3. Post-termination support is different a. It isn't mandatory absent court telling you to b. Entirely within court discretion to award it c. Not as common now b. Cessation of patrimonial effects i. Judgment of divorce/declaration of nullity terminates community property regime c. Lift of inter-spousal bar to suit i. Spouse can now sue for torts and all other forms of incidental relief 1. Only incidental relief allowed during marriage: child support/custody and spousal support when separate and apart. d. Loss of possibility of inheritance i. Terminates possibility that spouses will inherit from each other ii. This is dealing with intestate succession - death without will 1. Usually spouses inherit each others stuff when intestate iii. If spouse dies with a will and provides for spouse legally 1. But will created before divorce a. Cc 1608 - revocation of legacy or other testamentary provision when testator: i. Is divorced from legatee after testimony executed at time of his death unless testator provides to the contrary ii. Code presumes you don't want to leave anything to your ex-spouse e. Removal of impediment to subsequent marriage i. Removes impediment for prior undissolved marriages 1. The day of divorce, you can remarry without a legal impediment.

v. Extinction of Child Support: art. 142 and 9:315.22 1. At majority

Child support is for children - minority/incapacitated b. So, at majority or emancipation i. Marriage = emancipation ii. Emancipation by judicial order iii. Limited emancipation by notorial act of parents c. Relieved of minority incapacity d. Per Child Award i. Terminates automatically if award is for child individually - specific amount per child 1. When child emancipated or makes majority (18) ii. 9:315.22 - When there is child support in specific amount per child, award for each child shall terminate automatically without any action by obligor upon each child's attaining age of majority or emancipation relieving child of disabilities attached to minority iii. Generally: 1. If a per-child award, there is no need to seek termination/modification. It ceases automatically. e. In Globo Award i. 9:315.22 - 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 the youngest child for who whose benefit the award was made attains the age of majority or is emancipated relieved child of disabilities attached to minority. ii. No automatic reduction as each child hits majority iii. Burden is on the payor to seek reduction/modification as kids age out 1. If they don't seek it, it doesn't get reduced. 2. Automatic termination happens only once the youngest of the kids hits majority. iv. We do this because simply dividing the in globo award by the kid now at majority is not accurate. Need to go back and redo the table. Ex: 1 of 3 kids turns 18 - does not result in a 1/3 reduction in support. v. Most child support awards are in globo

Covenant marriage - grounds for divorce - MUST KNOW La. R.S. 9:307(A)(3) SPECIFIC LANGUAGE

Comprehensive list: a. Adultery b. Commission of a felony and sentence c. Abandonment from matrimonial domicile for one year and constantly refuses to come home d. Abuse 2. "no fault" grounds a. 2 years living separate and apart, 1 year or 1.5 with minor children after a judgment of separation i. Exception: if abuse, reduces to 1 year even if with minor children. 3. Abandonment: La. R.S. 9:295- the other spouse abandons the matrimonial domicile for a period of one year and "constantly refuses to return" a. "refuse" - you desire invitation to return (you need an invitation) b. "constantly" - you are often/persistently refusing repetitive requests to return c. Ashworth: W leaves after finding H with a prostitute. 3d Cir. Says no abandonment because there was no request for her to return and she had a lawful cause/justification 4. Abuse: "the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses" a. Requires a judicial finding of abuse. You can't get a divorce in CM for abuse after a protective order or TRO is granted. i. This makes TM and CM very inconsistent for abuse b. Usually abuse leads to immediate divorce - but "all reasonable steps to preserve the marriage" means you usually must engage in marital counseling. But it is not reasonable to have this step in this context: abused and abuser in same room. 5. The rest of the elements are same/similar to TM a. Adultery b. Commission and sentencing of a felony iii. "No-Fault" grounds for Covenant marriage divorce 1. Both are "103 style" - file after living separate and apart a. Separate and apart for 2 years after service of intent to divorce b. 1 year (1.5 w/ minor kids) apart after a judgment of separation i. Cut down to 1 year post legal separation even with kid if there is abuse.

c. Paternal Filiation

Defining a "father" 1. Generally, paternity is where the real trouble is since there is no outward sign of who the baby daddy is. 2. Why not use DNA in every case: a. It is expensive, time consuming, and there are far easier methods of determining paternity in nonscientific ways 3. Paternity is determined in 2 ways a. By means of presumptions i. In favor of husband of mother: 185 ii. In favor of man married to mother after birth and acknowledges the child: 195 iii. Formal acknowledgement: 196 b. By means of positive proof i. Judicial action by child: 197 ii. Judicial action brought by father via avowal action: 198

5. Element 3: standard of living during the marriage

Distinction here between interim and final support: interim allows a transition away from each other in order to make getting back together more likely. (don't throw the spouse to the wolves - she'll hate you more) i. Maintain "the good times" as much as possible

Parental Agreement on Custody: Art. 132 - helps 131 and 134 in determining custody

Essentially says we stop at what parents agree to as long as it is in best interest of the child i. "path of least resistance" b. 132 doesn't apply if PSFVA applies (usually domestic violence) C. When deciding 102/103 divorce - custody is a major consideration that 132 can help with d. We are so serious that we have mechanisms to promote an agreement i. Divorcing parent seminar: 9:306 1. Tries to encourage parents to come to an agreement to protect kid a. Court may require it ii. Mediation: 9:332 1. Prior to custody hearing, judge can require mediation to the parents getting along & settling iii. Cost of trial: 1. The costs of custody hearings promote coming to an agreement: seminar fees, mediator fees, attorney fees, mental health exam, Expert fees, drug testing, etc

7. Fault is irrelevant for interim spousal support

Even adultery/abuse: victim can have to pay all the way to 6 months post-divorce b. Done to maintain status quo.

covenant marriage- legal separation Cessation of personal effects?

Fidelity: 1. Negative duty is still alive - don't cheat a. You are still married, so adultery is still frowned upon b. Policy: we want reconciliation 2. Positive duty ceases - it'd be weird otherwise a. They don't live together and are kinda hating each other i. Why make them have sex ii. Ew. ii. Support: 1. Still applies until termination of marriage 2. This is why economically weaker spouse will seek a separation rather than a divorce. iii. Assistance: 1. Probably does terminate a. We really don't know, there are no cases on this 2. Likely tied to the duty to live together, so since in a legal separation they don't live together anymore it would likely not make sense to enforce duty of assistance iv. 9:309(A): 1. Separation from bed and board in covenant marriage doesn't dissolve the bond of matrimony, since separate husband and wife aren't at liberty to marry again; but it puts an end to their conjugal cohabitation, and to the common concerns which existed between them 2. Spouses who are judicially separated from bed and board in covenant marriage will retain their status either until reconciliation or divorce

v. Suspension for secretion of a child

Happens when a parent takes a kid away to another state/country so other parent can't see kid a. Even if you cant exercise visitation, you still owe child support - even when other parent is manipulating the kid to not see you b. Basic child support obligation is independent of time with the kid 2. § 9:315.23 - if one joint custodial parent or his agent is intentionally secreting a child with the intent of precluding the other joint custodial parent from knowing the whereabouts of a child sufficiently to allow him to exercise rights/duties as a joint custodial parent, the latter may obtain from court order suspending or modifying obligation under child support judgment. a. This isn't a defense to action for failure to pay court-ordered child support or action to enforce past due support b. Secretion = intentionally hiding child c. Likely to hold secreting parent in contempt d. We allow a SUSPENSION of child support here. Not a termination.

1. Art. 185 - Presumption based on marriage (MOST COMMON)

Husband of the mother is presumed to be the father of a child: i. Born during the marriage; OR ii. Born within 300 days from the date of the termination of marriage b. Prerequisites of application i. Law presumes this - when a kid is born, the doctor asks the mom who her husband is, not who the daddy is 1. W need a father for the kid 2. H of mom is most likely the father 3. The majority of cases = nobody else could be dad a. Assumes spouses kept up their negative duty of fidelity 4. No reason to DNA test when this is the oldest and strongest presumption regarding paternal filiation 5. 300 day presumption - if a child is born within 300 days from the day of termination of the marriage, the first husband is presumed to be the father since it scientifically more likely to be his biological child.

iii. Child Support Statutes - 9:315 - 9:315.48

Intent and purpose: prior to 1989, child support was wholly discretionary to the judge. This caused a lot of problems such as forum shopping and shitty results a. Congress in 1984 told states to come up with mandatory guidelines for child support by 1989 or lose all their funding i. LA would have lost 17 million ii. So in 1989 - we got these statutes. iii. The calculation of child support done using these statutes creates a rebuttable presumption that the result is reasonable. iv. "guidelines" is a bad word - these are really rules and mandates since you HAVE to follow them. 1. If a judge deviates, the judge must detail in writing or orally for the record the specific reasons for deviation. It is a high burden to be able to deviate. b. Legislature reviews the guidelines every 4 years according to the statute. The legislature - who most pay child support themselves - are not likely to make changes because they would just be making themselves pay more.

v. Effect of Custodial arrangement

Joint custody: a. Use worksheet A b. Both parents have frequent and continuing contact 2. Shared Custody - KNOW THIS a. Use Worksheet B b. Definition: 9:315.9 - Joint custody arrangement within which the parents have approximately equal time with physical custody of the child. i. Contrast with "frequent and continuing" contact - this is closer to 50/50 ii. Outside of child support calculation, "shared custody" doesn't exist c. What is approximately equal? 50/50? 45/55? 63/37? i. Get as closely to equal as possible even though 50/50 isnt possible at all ii. Courts really ****ed this up - Caroll d. Janney v. Janney i. 55/45 was enough for shared custody e. Wescott v. Westcott i. 63/37 was enough for shared custody 1. Caroll hates this - how is this "approximately equal" instead of just "frequent and continuing?" f. Broussard v. Broussard i. 57/43 was approximately equal time - so shared custody - whip out Worksheet B 3. Effect of Worksheet B if you find Shared custody: severe reduction in child support award a. B multiplies the basic child support obligation from the table by 1.5 b. Then, the worksheet gives credit for time spent with child based on the % of time with the kid i. This cuts child support damn near in half 1. Ex: with child 37% of the year = 37% less you gotta pay. c. SO: i. Parent gets 73 days with the child = reduction under Worksheet A in the form of a CREDIT that is a small amount of time (1-2 month usually) ii. Parent gets over 73 days and you can prove approximately equal time for shared custody and Worksheet B applies. NOW we credit according to % of time with the child. Big reduction if you can get B. 4. Split Custody Arrangements: 9:315.10 a. Definition: each party is the sole custodial or DM parent of at least one child whom support is due i. If custody order provides for split, each parent shall complete total child support obligation for child(ren) in custody of the other parent in theory b. Effect: amount is determined when taking amount owed by each parent and subtracting them. Parent with greater obligation pays the other parent the difference. i. You do worksheet A for each kid separately

Cessation of patrimonial effects legal separation covenant marriage

Judgment of legal separation from bed and board terminates community property regime ii. 9:309(B) 1. Judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the original petition filed an action in which judgment rendered. Such retroactive effect shall be without prejudicial effect to liability of community for attorneys fees and costs incurred by spouses in action in which judgment is rendered or to rights validly acquired in interim between commencement of action and recordation of judgment 2. Upon reconciliation, a community shall be reestablished between spouses as of date of filing of original petition in action in which judgment rendered, unless spouses execute prior to reconciliation an agreement that community shall not be reestablished upon reconciliation. iii. Policy: another way to try and encourage getting back together

f. Art. 103(1) No - fault divorce

Live separate & apart for the necessary period and then file. You allege domicile and matrimonial domicile. You also allege the period at which you started living separate and apart. ii. Starts off as an ordinary proceeding: you file a petition, serve it, wait 15 days for answer, affirmative defenses, wait for trial, etc. UNLESS you get an exception: 1. Default judgment: LACCP 1701-1702 2. Judgment on the pleadings: LACCP art. 969 a. All parties are represented by counsel b. Counsel for each party file written joint stipulation of facts, request for judgment, and sworn verification c. Counsel for each party file a proposed judgment containing a certification that counsel and each party agree to the terms thereof. iii. If the exceptions don't apply, a 103 divorce is a very time consuming process. 1. Might compel someone to pick a fault-based divorce instead.

ii. #2 - A marriage Ceremony

Louisiana does not recognize common law marriage - a marriage without a ceremony (two elements) a. Cohabitation for a long time b. Holding each other as "spouses" in public eye 2. What is an adequate ceremony - art. 91 a. Spouses must be present i. No teleconference marriage ii. No proxy marriage (art. 92) - 6 states allow 1. "too informal" for marriage a. Stupid: you can draft a will and delegate child custody by proxy b. Performed by a person qualified, or someone reasonably believed by the parties to be qualified i. 2 basic requirements for an officiant 1. 2 groups: state judge/justice of the peace in their sphere of authority; OR a religious authority* 2. Registered with the state in the preferred parish - 9:204 ii. La. R.S. 9:202 - MUST KNOW THESE - a marriage ceremony may be performed by: 1. A priest, minister, rabbi, clerk of the Religious Society of Friends, or any clergyman of any religious sect who has attained the age of majority and is authorized by the authorities of his religion to perform marriages, and who is registered to perform marriages 2. A state judge or justice of the peace WITHIN their authority (La. R.S. 9:203) a. A justice of the LASC within the state b. A judge of the court of appeals within their circuit c. A judge of a district court within the district d. A judge of family court, juvenile court, parish court, city court, or Orleans Parish traffic court, within the parish in which the court is situated; and e. A JP within the parish in which the court of that justice of the peace is situated, and in any parish within the same supreme court district, or in a parish that has no justice of the peace court except for Orleans parish 3. La. R.S. 9:204 - an officiant, other than a judge or JP, must be registered with the clerk of court of the parish in which he will principally perform marriage ceremonies. 3. Exam steps to look into adequacy: a. Is it a person either authorized by a religious sect or a judge within the scope of their authority? b. Are they registered within the state (and parish they will principally perform in)? c. If not qualified, would a reasonable person believe they were qualified? i. Is the person a class of persons reasonable people recognize as able to perform wedding ceremonies? 1. If so, marriage is good. 4. We do not want to invalidate marriages for technical reasons beyond the control of the parties 5. Requirements of marriage that don't lead to nullity if violated a. Marriage Licenses i. La. R.S. 9:221-25, 234-36, 241-43 ii. NOT HAVING A MARRIAGE LICENSE DOES NOT LEAD TO NULLITY - EXAM b. 30-day validity before expiration of marriage license i. Want you to wait & think c. 72-hour waiting period before entry into marriage after getting the license i. Avoid drunk elvis weddings d. Two competent witnesses of full age i. See witnesses - 9:244 ii. Penalty is not nullity, it is fines for the officiant e. Marriage certificate attests to the occurrence of the marriage f. Marriage certificate is signed by the parties, witnesses, and officiant.

Anatomy of a worksheet: Joint Custody STEP 7: Each Party's Child Support Obligation

Multiply the total support by each parent's % after adding the additions/subtractions in the last step. b. Don't need to do on final with numbers, be able to explain from here on. c. This is the theoretical child support obligation. i. Domiciliary parent contributes their share "in kind" so the amount assigned to them isn't given in any check.

E. Effects of Marriage a. Personal Effects

Nature of the rights and duties of marriage 1. Cannot be contracted around: they are imperative, not superlative since they are matters of public policy. a. You can contract somewhat differently, but you cannot go below Civil Code standard - basically you can agree to do more than required but not less b. Favrot v. Barnes: Pre-marital agreement that limited sex to once a week. W wanted 3 times a day. While there is a duty to have sex in duty of fidelity, you cannot deviate from it and since this was a "limit" then the court declared the agreement absolutely null. 2. Limited by interspousal bar to suit: La. R.S. 9:291 forbids spouses from suing each other with a few named exceptions. a. Spouses may not sue each other except for causes of action pertaining to contracts or (1) restitution of separate property; (2) divorce or declaration of nullity of marriage; and (3)causes of action for spousal support or support/custody of a child while spouses are separate and apart 3. "hortatory"- it means we have no sanction for if someone violates these articles or laws. They serve the purpose of guiding spouses conduct and influencing them, but not punishing them for not following the article Parent-Child Context: art. 228 1. A child shall obey his parents in all matters not contrary to law or good morals. Parents have a right and obligation to correct and discipline the child in a reasonable manner. a. No legal consequences if a child fails to obey parents b. Expressive purpose: public policy to encourage

iv. Mutual Fault

Not a defense for traditional marriage, but possibly for covenant marriage 2. Tradition is that divorce is for an innocent party. So this used to exist, but abrogated in LA in the 1980s because it turned into absurd weighing of faults of either party in court a. Court used to dismiss petition if both spouses were guilty of fault. Then this meant a person at fault could find something minor wrong with other party and find them at fault too i. This birthed comparative rectitude where "least at fault" party got divorce - but that turned into a pissing match so we shut it all down. b. Now even a guilty party can get a divorce, so this is no longer a defense to traditional marriage divorce 3. Covenant marriage: 9:272 a. Says "non breaching party can seek divorce" b. Appears to totally revive the defense - but legislature prolly didn't mean to revive comparative rectitude i. No case law v. YOU MUST KNOW ALL THE DEFENSES AND USE THEM

iv. Recap: Who gets custody?

Parental agreement: unless PSVRA applies 2. Joint custody: without agreement or if agreement is not BIOC, we HAVE to go to JC 3. Sole custody: if clear and convincing evidence that JC is not BIOC a. Besides abuse and domestic violence (guaranteed via PSVRA), substance abuse is another way to get sole custody i. Cain v. Cain: H admits to previous drug use - this helped court decide clear & convincing evidence supported sole custody 1. Sole Custody is RARE, EVEN RARER if nonviolent case 2. Judgments are NEVER FINAL: dad can shape up and get custody again.

. Proving a "mother"

Proven by Preponderance of the Evidence a. "clear and convincing" is the standard for most other filiation burdens. Important distinction. b. Art. 184 makes a point to mention that maternal filiation is a preponderance standard despite preponderance being the standard because it is distinguishing maternal filiation from the subsequent articles 2. Cmt. B: Evidence of maternity includes all facts and circumstances establishing that a child was born of a particular woman, including a. Testimony of witness to the fact of birth i. Mom's testimony is included 1. Can be enough to prove maternity if fact finder feels she is credible. ii. Self-serving testimony is sufficient here, unlike paternal filiation. b. Documentary evidence i. Hospital records ii. Birth certificate c. Scientific evidence i. DNA/Blood testing - carroll says rare and not worth it when literally any other evidence is enough and nowhere near as expensive.

d. Defenses to Divorce Action: Reconciliation, Mental illness, Connivance, Mutuality of fault

Reconciliation: art. 104 (only defense recognized by Code) 1. Effect: extinguishes the cause of action for divorce a. Makes other pending orders and judgments go away too (litigation) 2. 2 elements a. Forgiveness/acceptance; AND b. "resumption of the life in common" i. Huge incentive to lie - we must infer using circumstantial evidence using caselaw 3. Reconciliation applies to no-fault divorce and fault based divorce a. Historically, it applied to fault-based divorce only, but now both b. Change in 2005: divorce for abuse creates reconciliation issues i. Think about battered spouse syndrome 1. No caselaw yet, so technically reconciliation still applies to abuse cases but it probably shouldn't. 4. Cases used to say 1 sex = reconciliation, but this is prone to abuse so we want reconciliation to take more than just one sexytime 5. Milton v. Milton: 10-15 sexual acts without verbal forgiveness did not equal reconciliation because it wasn't entirely voluntary a. We need a resumption of the life in common, this was nothing of the sort. 6. Jordan v. Jordan: H and W have sex, go to church together, appear in public together, H moved into house for a while = reconciliation a. this was a resumption of the life in common 7. Lemoine v. Lemoine: had sex, went on overnight trips together, but court said no reconciliation a. H had his own apartment and never moved anything back. i. Moving stuff back in is highly indicative of resumption of life in common. 8. Rivette v. Rivette: H has own apartment, but brings a suitcase to matrimonial domicile and stays a few weeks at a time. Multiple sexytimes, home address on license, etc. H claims he wasn't trying to reconcile, just be there for the kid a. Court says there is reconciliation but it's a close call 9. Reconciliation hearings are rarely overturned on appeal a. Make sure client is understanding of the risks of reconciliation on accident b. Problem: spouses can act like reconciliation without actually intending to reconcile because they have monetary motives (spousal support and custody) 10. Levine case: sex is not necessary for reconciliation a. Tulane student and W separate. H moves back in with W, but both admit no sex happened because H is fat and repulsive to W. i. Court finds a resumption of the life in common anyway - fact specific case right there 11. Why do we care about state of mind: You don't need pure intentions to reconcile! a. No court has ever found no reconciliation because of a nefarious or evil purpose, but it is a factor to put into the weighing to decide reconciliation or not 12. Hickman v. Hickman: W moves out and then back in. H said W moved back in because she didn't want to lose custody of the kids, not to reconcile. H had already gotten a temporary custody order and W wanted to circumvent it. a. W moving back in extinguished the divorce and the incidental matter of custody b. Court noted that H wasn't being fooled - her bad state of mind didn't matter. 13. Tablada v. Tablada: H finds out that he would have to pay a **** ton in spousal support, so that night he moved back in. a. Here, impure motive existed but different holding from Hickman. i. Resolutory conditions of counseling and stopping adultery were enforceable as obligations - since he failed them, reconciliation failed. b. In Hickman, the H suspected W only came back for child custody. He wasn't duped. H called attorney and asked for advice and the attorney warned him of the risk. c. In Tablada, the court found no reconciliation - found it was a "conditional reconciliation" and he never fulfilled the resolutory condition

Anatomy of a worksheet: Joint Custody STEP 5: Determine basic child support obligation

Reference table in La. R.S. 9:315.19 i. Was finally updated in 2016, still awfully out of date ii. Criticize them heavily for brownie points b. Judges have no discretion here- what's in the box is what it is. c. The 2016 update raises the 0max income on the chart to 40,000 per month combined. d. If family income exceeds the 40,000 on the chart, we award to maintain the standard of living of the child i. Piccione v. Piccione - court says we do not extrapolate a number if the income goes beyond the max in the chart ii. Instead, we get a number that will maintain the standard of living of the child / maintain the child's lifestyle 1. Status quo emphasis. 2. We don't award lower than the max amount in the chart though. iii. Standard is gauged off of "the best of times" for the kid e. Incarcerated obligors get into a vicious cycle with this i. Suspension of child support while incarcerated was passed in 2018, but child services extended effective date to 2021 - they are trying to kill it

Juridical Person: an entity to whom law prescribes a personality (corporations, partnerships, etc.). The personality of a juridical person is distinct from that of its members

Requirements of a juridical person: The entity should be - 1. Organized or a formal organization 2. Management with the power to act on behalf of a group 3. Own property, or some form of property ii. Two flavors of juridical persons 1. Public: governmental entities such as parishes and cities 2. Private Entities iii. Art. 27: ALL natural persons enjoy general legal capacity to have rights and duties 1. An entity has separate patrimony from its members 2. Art. 2801 - partnerships: a partnership is a juridical person, distinct from its partners, created by a contract between two or 4 more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit. a. Capacity to sue/be sued on its own behalf is important!

iv. Covenant marriage - grounds for separation: La. R.S. 9:307(B)

Same 4 as fault-based in CM: adultery, felony & sentencing, abandonment, physical/sex abuse, separate & apart for 2 years 2. Habitual intemperance: comes from dead legal separation grounds for traditional marriage a. Usually due to substance abuse that "renders the common living together insupportable" 3. Cruel treatment: lacks definition and no cases in CM context but we have spousal support cases (it is grounds for spousal support too) "renders the common living together insupportable" a. Probably means here what it means in spousal support context i. Failure to "perform" duties - sex, home care, etc.) ii. *see spousal support discussion on this topic for full discussion* v. Relationship between legal separation and divorce 1. Some people for religious or other reasons don't like the stigma of "divorce" 2. Insurance reasons 3. If you have habitual intemperance, you can divorce a year later. So faster, but any other ground, it is slower to get a divorce. a. This is important for context of the effect on the community property regime ($$$$$$$) i. Community property terminates retroactively to the time of filing, and the same happens for judgment of legal separation. 4. Finances: Spousal support! a. The weaker/ poorer party wants a slow divorce. Interim spousal support ends with the final divorce plus 180 days. So getting a legal separation gives the weaker spouse longer time with interim support, which is more money than FPS. i. Very bad for breadwinner if they don't wanna pay

Joint custody: Court is REQUIrED to issue a judgment of joint custody unless clear & convincing evidence exists that joint custody is not in BIOC

See 9:335 b. Not 50/50 time! c. When joint custody is implemented, the court renders an implementation order except for good cause i. Physical custody: "frequent & continuing contact" - with the child by each parent is preferred ii. Legal custody: makes major decisions such as braces, schooling, etc. d. Physical custody: does not mean 50/50 time, equal joint physical custody means splitting time "to the extent feasible." i. Evans v. Lungrin: One parent is in LA, the other in WA. Court had set up 4 month alternating schedule that caused problems. 1. We want equal time, but it sometimes isn't possible. 2. Requirement is "frequent and continuing contact" ii. Schaeffer v. Schaeffer: Every other weekend, alternating holidays, and 6 weeks of summer 1. This is around 30% of the year but still joint custody 2. Not a golden rule but certainly a safe one e. Legal custody: look at the domiciliary parent i. Legal custody: authority to make decisions for the child, usually the same parent the child primarily resides with ii. Minor v. Major decisions 1. Major decisions: non-domiciliary parent can challenge the major decisions made by domiciliary parent a. There is a presumption of BIOC in what the DP decides concerning major decisions. 2. Minor decisions: cannot be challenged. iii. Domiciliary parent pays less in child support 1. 9:315.8(E) - in joint custody and nondomiciliary parent has custody for over 73 days of the year, you can get "credit" in child support payments (a discount) a. Incentive to seek 73 days b. Bad incentive but it makes sense to have. iv. Deviation 1. Having more than one domiciliary parent (CoDP) saves money and time, but leads to more litigation over everything. a. Hodges v. Hodges: LASC kills notion of co-domiciliary parents - cannot exist. b. JP v. AD: 2019 3d cir. Denies parents "joint domiciliary custodial parenthood" - wtf 2. Not naming a DP: a. 9:335 suggests you can i. Why: parents could hate each other so much that naming a DP would do more harm than good b. Ellinger v. Ellinger: heavy animosity between parents, so neither is a "friendly parent" - 1st Cir. Says NO i. What you can do is not name a DP and craft an order assigning decision powers of each parent. But you can't just not name a DP and leave it at that. ii. Very inefficient iii. Issue: what if an issue comes up not named in the allocation of powers in this setup? 3. LACC 221 et seq. - guidance we have to decide who makes decision in event of conflict with a DP. a. "fathers will prevails" - unconstitutional these days b. So now the tie breaker is illegal, back to no answer if we don't name a DP.

extinction of child support After majority

Sometimes the award goes past age 18 i. People argue that child support should go above 18 - nothing magic happens at that age that makes you able to support yourself. ii. Some kids are still in high school. Even if graduated, things like college tuition, training, etc. exist. 1. Parents may agree in implementation order to pay for car/college a. Contract b. Courts will enforce if parents agree b. Extension to maximum age of 19 i. Exception for kids still in secondary school or the equivalent - full time student ii. 9:315.22(C) - child support continues for any unmarried child who is 18 or emancipated as long as the child is a full time student in good standing in a secondary school or its equivalent and has not attained the age of 19 and is dependent on either parent. 1. Doesn't apply to college c. Extension to age 22 i. 9:315.22(D) - an award of child support continue 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. 1. Interim time during transition to permanent tutorship 2. HERE, "developmental disability" is a "light" disability: dyslexia, ADHD, etc. d. Indefinite Child Support extension! i. 9:315.22(E) - extends child support indefinitely for severely disabled adults 1. Incapable of self sufficiency 2. when the disability Developed before majority a. Tries to cut out events the person may be at fault like a drunk driving wreck ii. Note the different in "disability" between extension to 22 and indefinite extension.

iv. Personal effects of covenant marriage

Spouses in covenant marriages are subject to all of the laws governing married couples AND special rules of covenant marriage (la. R.S. 9:293) - They still owe all art. 98 duties, plus more a. R.S. 9:294: spouses owe each other "love and respect" and they commit to a community of living i. Each spouse should attend to the satisfaction of the other spouse's needs b. R.S. 9:295 - spouses are bound to live together unless there is good cause otherwise. Spouses determine the family residence by mutual consent according to their requirements and those of the family c. R.S. 9:296 - the management of the household shall be the right and duty of both spouses 2. Consequences for breach: la. R.S. 9:291 bars interspousal suit except for certain exceptions, one being claims pertaining to contracts a. Spouses in a covenant marriage sign a contract. Spouses can sue because it is perhaps a claim pertaining to a contract. We don't have cases but in theory you can sue b. Breach any duty = cruel treatment = fault = no final support - so same stock consequence for art. 98 could work too. 3. Carrol: "A reasonableness standard has been imported into covenant marriage requirements" a. You can't sue because H wont take out the trash. This standard applies to traditional marriage too. Be realistic.

Party Autonomy to a Contract for Child Support

Stipulation on amount - we have no answer if we can or not 1. General rule: parents can contract whatever they want, as long as it doesn't violate public policy 2. Stogner v. Stogner a. Parents stipulate to an amount for C.S. and TC signs it. b. Held: parties can agree, but court doesn't have to enforce it i. Court is not a rubber stamp: has to do whole guideline calculation and deviate in pre-discussed procedure to the exact number parties agreed to and give oral/written reasons why for the record. Whole process. ii. Court can't just approve a stipulation - MUST do whole calculus and if they choose to deviate to parent's agreement then it must be possible and done so under the provided deviation methods. ii. Waiver of Child support 1. Dubroc v. Dubroc (372) a. Decided before Stogner b. Mom and Dad divorce. Dad ordered to pay 250 a month for two kids. c. M doesn't want the son so dad takes son and pays ½ amount of original 250/month. i. Happens for 4 years and then M sues for arrearages d. Court: i. You can't relinquish the duty to support a child ii. You can relinquish the right to COLLECT support, as long as the agreement fosters the child's continuing development. 1. cant just waive right to collect without having an agreement that fosters childs development. e. Caroll doesn't like - proper procedure should be modification 2. Heflin a. Here, same facts as Dubroc but the parents never agreed not to pay, son just started staying with dad so dad stopped paying. b. Court: Mom "impliedly contracted" consent to waive reception of support. c. Stupid as shit: support is based on income, not time with the child - income shares model i. So this is dumb. g. Accounting i. Child support is for the kid, but not paid to the kid or property of the kid. It is paid to the DM parent. 1. This is huge complaint of payors: fear obligee is misusing funds meant for the child ii. Mechanism to discourage misuse of child support payments: 9:312 71 1. On motion of the payor party, after a contradictory hearing and a showing of good cause based on expenditure of child support for 6 months immediately prior to motion: court shall order receipts of support spending in order to conduct an accounting 2. Movant pays court costs and attorney fees of recipient of child support if the claim is dismissed for being frivolous a. Major disincentive to keep payor from harassing payee with this claim. iii. Basically obligor parent can get accounting of obligee parent if: 1. He has to make a rule asking for this 2. Provide proof of sketchy spending for past 6 months - showing of good cause of and expenditures a. Ex: tuition unpaid by momma but she got new boobs

Party Stipulation

Stogner a. Even if the parents don't contract about child support initially, can they contract for modification? b. NO - parties can't modify this duty i. Can only be done if they go to court, and then the court has to go through the whole deviation procedure. ii. Same process for initial child support obligation K c. This was a modification case 2. We want uniformity and consistency of guidelines a. Not against public policy b. Otherwise, courts couldn't allow it c. BUT, if court finds deviation appropriate by appropriate process, its ok.

Anatomy of a worksheet: Joint Custody 2. STEP 2: calculate adjusted gross income of each party

Subtract preexisting child support and spousal support payments from the monthly gross income. b. ISSUE: multiple families i. Assuming salaries are the same, since we subtract existing support from gross income, the 2nd set of kids to get child support are going to get less support 1. "First family first" ii. What if mistress gets child support for bastard son before wife can get child support for the legit ones? Bastard child gets more support. Not congruent with the "first family first" idea.

G. Incidental Actions

The Big Three: i. Spousal Support ii. Child Support iii. Child Custody b. Other incidental actions i. Injunction re desposition of community property ii. Injunction re abuse, harassment (9:373 & 372.1) iii. Retrieval of personal belongings (9: 373) iv. Use/occupancy of family home, community movables & immovables (9:374) v. CC art. 121 - Contributions to education or training made during the marriage that increased the other spouse's earning power, to the extent that the claimant did not benefit during the marriage from the increased earning power.

l. Availability of incidental relief in Covenant Marriage

There is no distinction from traditional marriage, but context is different/ 1. Spouse in covenant marriage are subject to all of the laws governing married couples generally and to the special rules governing covenant marriage ii. On paper, incidental relief is the same for both 1. In application, since there are different rules for covenant marriage, it may be applied differently 2. In covenant marriage, no-fault divorce is 2 years separate and apart. a. Interim support here could be calculated with different considerations. A lot longer time than no-fault for traditional marriage.

Limitation to award of interim spousal support (art. 113)

There is no dollar limitation. (there is for FPS) b. There is a time limitation - see 113 i. This is new - and the change applies prospectively!!! ii. Pre-2018: terminates on the judgment of divorce or 180 days from judgment of divorce if there is a pending final periodic support judgment. 1. Encouraged playing the "game" of delaying final periodic support in order to get the extra 180 days iii. NEW post-2018 rule: interim spousal support always lasts 180 days after judgment of divorce 1. People were abusing the system to get this anyway so we made it the standard. c. The interim spousal support time limit can be extended for good cause i. Roan v. Roan: court decides against a 22 month extension of interim support for lack of good cause. 1. The good cause claimed: wife had 2 strokes and was pretty crippled. This arguably affects "earning capacity" and "need of party" 2. TC originally gave the extension because of her extra need plus the husband being a shithead and prolonging the trial 3. Appellate court said NO: interim spousal support is not a punishment, based on good cause (disability of the claimant is not a good cause according to Caroll) ii. NO case actually answers what "good cause" is, and law institute is trying to get rid of this extension.

Fault-based grounds for divorce:

Traditional Marriage: NEW art. 103 - Adultery, commission and sentencing of a felony, abuse, and 2 no fault grounds - 1. Adultery a. Exactly what you think it is - see previous notes on this 2. Commission of a felony and imprisonment a. Committed a felony and has been sentenced to death or hard labor i. Hard labor = imprisoned in a penitentiary 27 b. Pg. 154 hypos - "fringe" questions c. Rationale: while imprisoned, spouse cannot comply with art. 98 duties of assistance and support. Also, we don't want to force someone to be married to a felon because it is a crime of "moral turpitude" d. Hypo: LA spouse is convicted of a felony in Iran for something that isn't a crime in the U.S. - can wife get immediate fault-based divorce? i. Possibly if the rule cares about art. 98 duties ii. Possibly not if the rule cares about "moral turpitude" e. Hypo: spouse is parole/pardoned of a felony. Can spouse get immediate divorce? i. Possibly if rule cares about "moral turpitude" 1. Pardon could fix moral turpitude ii. Possibly not if the rule cares about art. 98 duties f. Nickles v. Nickles - [moral turpitude seems LA focus] i. H commits a felony and is sentenced to 10 years hard labor. W files for divorce. H files declaratory exception because he has an appeal pending on his conviction ii. Court says you only need a conviction and sentencing for initial determination of guilt. You don't have to wait for the appeal process to be exhausted. 1. Hints that moral turpitude is the focus: we don't care about the marital duties, we care about the stigma. Case implies it wouldn't matter if H was ever actually convicted. An initial determination of guilt is all we need for immediate divorce. iii. Carol: "we need some real reason why art. 103 allows this as a grounds for divorce. We aren't sure about what they care about regarding it." g. Why you wouldn't want immediate fault-based divorce i. Fault based divorce requires disclosing a lot of embarrassing details and no-fault lets secrets lie. Also presenting the extra paperwork and evidence for fault-based divorce is a pain in the ass. ii. Time: even through fault-based is "immediate" - the reality is that it often takes longer than non-fault divorce. 1. No-fault divorces under 102 operate as a summary proceeding 2. Fault-based divorces are a normal proceeding with all the fixins of a trial. 3. The economically weaker spouse wants to drag out the process as long as possible. Thus, even if they can prove fault-based grounds they usually wont. 3. Abuse a. 103(4) During the marriage, if the other spouse physically or sexually abused the spouse seeking the divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of divorce b. Goal: protect domestic abuse victims c. Effect: people became incentivized to get divorce on abuse grounds by "admitting" abuse just as a shortcut around nofault waiting period d. 103(5) - After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse. i. Theory is that you don't have to prove abuse again if you already did so through getting a protective order (res judicata) ii. Problem: this also opens a door for abuse to get around no-fault waiting period e. There is no time limit for abuse being "too long ago" - but look for reconciliation

Anatomy of a worksheet: Joint Custody 1. STEP 1: Calculate gross income of each party (9:315(c)(3))

When a party alleges that income is being concealed or underreported, the court shall admit evidence relevant to establishing the actual income of the party b. Any income - 9:315(c)(3)(a) says "income from any source" i. Including salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers compensation, basic and variable allowances for housing and subsistence from military pay and benefits, and spousal support received from a preexisting spousal support obligation c. Expense reimbursements or in-kind payments - received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent's personal living expenses. Such payments include a company car, free housing, reimbursed meals, etc. i. in the hypo we tally up dad's free lunch worth $50.00 a month d. Self-employment income i. Count gross receipts (income) minus ordinary and necessary expenses required to produce income, for purposes of self-employment, rent, royalties, proprietorship of a business, or joint ownership or partnership or closely held corporation 1. Ordinary and necessary expenses is a vital discussion to have 2. HYPO: the dad is making 2,000 a month, but he has to pay 1,000 for welding supplies and another 100 for union dues 3 Joint custody is "Worksheet A" of the handout we filled out in class. Also seen in Vol. 2 of the code. Review the class sheet for the facts and how to do this shit a. Union dues are close: here the union provides him with the jobs so it's an ordinary and necessary expense e. Unemployed or underemployed party i. 9:315(c)(5) defines income as "actual gross income of a party, if the party is employed to full capacity, or potential income of the party, if the party is voluntarily unemployed or underemployed" 1. You aren't voluntarily unemployed/ underemployed if you are absolutely unemployable or incapable of employment, or if the under or unemployment is a result of no fault or neglect of the party (getting laid off) 2. So here, the mom used to make $5,000 a year but hasn't worked in 4 years because she doesn't want to. Industries evolve and change, and it is unlikely that 5,000 is an accurate number now but it's the best we have. Parties rely heavily on expert witnesses here. ii. EXCEPTION - 9:315.11(A) 1. If a party is voluntarily unemployed or underemployed, child support is calculated based on a determination of income potential unless the party is physically or mentally incapacitated, OR is caring for a child of the parties under the age of five. 2. Here, this means mom doesn't get her monthly income from old job counted. BUT, Dad can argue two things. First, he can argue that he is with the kid 40% of the time and the mom spends her days at the tennis club. The point of this exception is to apply to people that are actually caring for their kid instead of working. One 2009 case did not allow this statute to apply because the child was placed in a daycare every day during working hours anyway. f. Expense-sharing spouse i. If you have a spouse, the court can consider the "expense sharing benefit" of that spouse - but the court CANNOT consider the income of another spouse, regardless of what legal regime the marriage was created under. 1. Here, that means rich husband's income isn't halved and considered her income. 2. The court can consider income used directly to reduce the cost of a party's actual expenses. 3. This means we consider how much mom would have to pay for an apartment, utilities, food, etc. if she lived alone. This is a fact-based determination and the judge uses discretion. In class we just said 1500/month probably. g. Exclusions to "gross income" - 9:315(C)(3)(d) i. Child support received, or benefits received from public assistance programs, including stuff like food stamps and supplemental security income ii. Per diem allowances which are not subject to federal income taxation under internal revenue code iii. Extraordinary overtime: including seasonal work regardless of its percentage of gross income when, in the courts discretion, the inclusion thereof would be inequitable to a party 1. Walden v. Walden: dad was working overtime for the specific purpose of buying a family car. When they divorce, he stops overtime because he doesn't have a reason to do it anymore. D argues gross income shouldn't include the salary he pulled while working overtime. 2. Court agreed: It was a LOT of hours and done for A SPECIFIC GOAL. iv. Any monetary gift to the domiciliary parent when the objective of the gift was to help child support payments from the other parent v. Any disaster assistance benefits received from FEMA vi. HYPO: Where does dad's health insurance fit in? WE DON'T KNOW. We could include the 200/month he is saving for the same reason we include the value of the free lunch. BUT - most courts don't include health insurance because health insurance is not always used and we want people to get it. 1. Carrol says mention both arguments but don't include health insurance. h. NOW - add the income up.

jurisdiction in incidental proceedings

While divorce is based on the domicile of one party, incidental relief proceedings require actual personal jurisdiction (IPJ and SMJ) 1. You cant get child support, spouse support, and child custody action in the state that only has domicile over one party - need jurisdiction over the defendant.

Anatomy of a worksheet: Joint Custody STEP 3: Combined monthly adjusted gross income

a. Add the two parents' adjusted gross income calculated in step 2

Assistance: art. 98 - distinguish from support. Support is a more tangible and financial duty. Assistance is more intangible and emotional. (reminder: you cannot contract under what this duty requires)

a. Assistance is emotional support - doing chores, medical help, caring for kids, caring for spouse when sick, etc. b. 98(c): the duty to render assistance, separate from support, includes the personal care to be given an ill or infirm spouse. i. If one spouse is sick, the other must render reasonable aid c. HYPO: H and W enter into prenup that says if one gets AIDS then the other doesn't have to render assistance. H gets AIDS. W moves to neighbors house to avoid the sickness. i. There is no clear answer into reasonableness in assistance context, but keep it in mind. ii. Also, since they contracted below the standard set, the prenup is void ab initio d. Spouses don't have to live together to satisfy this duty i. Art. 98(f) - spouses are free to live together as necessary to fulfill their obligation to mutually to support, assist, and be faithful ii. COMPARE with Covenant marriage: Spouses are bound to live together unless there is good cause otherwise (la. R.S. 9:295) e. Consequences for breach of Assistance i. Cannot sue because of 9:291, but just like the rest, it can be called cruel treatment, leading to fault, leading to no final periodic support award for the breaching spouse. ii. Cauthon v. Cauthon - court deprives W of spousal support because of fault. She does not go to H's heart catheterization because she was caring for grandson, she drops him off at doctor office instead of being with him, and she does not go to Mexico with him to get his gastric bypass.

"Family Law"

a. Definition of "Family" - very hard to nail down i. Art. 3506: "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 servants of the family. It is also used to signify all the relations who descend from a common root." 1. Limited: Father, mother, and Children a. What about single parents, gay, etc. 2. Extensive: all individuals who live under authority of another b. State versus federal law: almost entirely left to the states i. Most types of family law fall within the state police power ii. There is limited federal family law from Congress in the form of acts like DOMA, VAWA, etc.

Anatomy of a worksheet: Joint Custody STEP 4: Percentage share of income

a. Divide the parent income by the combined monthly adjusted gross income. Assign a percent to both parent. b. "income shares model" - parents share child support obligation in proportion to their income i. Can mean the domiciliary parent is assigned more support even with more time with the kid ii. "you make more, you pay more" - if you get a raise, your % goes up, and you pay more support for the kid.

biological filiation

a. Generally: i. 2 concerns: 1. Maternity 2. Paternity ii. Paternity is much more controversial but both are a pain in the ass b. Maternal Filiation i. Defining a "Mother" 1. General rule: woman who gives birth to the child 2. We start with maternal filiation because it determines paternal filiation in part. 3. Historically, maternal filiation was an easy thing a. No code article - you just looked at who gave birth 4. Problem now: who a "mother" is has become an actual problem a. You can have biological and emotional ties to children without giving birth to them b. Surrogacy is the problem i. Is the mother the one that gives the egg but is not the intended mother? Is the surrogate the legal mother? Or the intended mother? ii. What if the surrogate gives the egg but isn't the intended mother? Is the surrogate the real mother? Egg donor? Intended mother?

Nullity of marriage

a. Not all deficiencies in the marriage requirements lead to nullity - the question to ask are: (1) is my defect one that leads to nullity? (2) if so, which flavor? b. 2 flavors of nullity i. Absolute nullity: art. 94 1. A marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. 2. A juridical declaration of nullity is NOT required, but action to recognize the nullity may be brought by an interested person 3. READ - LACC art. 2020-2035 FOR EXAM ii. Relative nullity: art. 95 1. A marriage is relatively null when the consent of one of the parties to marry is not freely given. Such a marriage may be declared null upon application of the party whose consent was not free. The marriage may not be declared null if that party confirmed the marriage after recovering his liberty or regaining his discernment.

extinction of child support . Prescription

a. The claim to initially claim child support never prescribes, except when kid hits majority? b. BUT, there is a 10 year prescriptive period on collecting arrearages for child support i. This is when the obligor is delinquent in payment ii. Spousal support is shorter - 5 years iii. Shows the value we have on encouraging payment

Injunctive relief'

i. Against disposition of community property 1. Injunction restraining or prohibiting the disposition or encumbrance of community property until further order by court 2. Basically keeps spouse from uncovering any community property ii. Against abuse and harassment 1. Injunction prohibiting spouse from physically or sexually abusing other spouse or child of either party iii. To allow removal of personal property 1. Court may grant ex parte order requiring sheriff/law enforcement officer to accompany spouse to family residence to obtain personal property of that spouse safely

The Parent-Child Relationship - BIG TEST a. Filiation in general

i. There are 2 flavors of filiation: 1. Biological filiation 2. Adoptive filiation ii. Art. 178: filiation is the legal relationship between a child and his parent 1. Used to be simple before The Gays and Surrogacy iii. Art. 179: establishes filiation - maternity, paternity, and adoption

i. The Three Legal Presumptions

presumptions based on marriage subsequent marriage plus formal acknowledgement based on formal acknowledgement

Anatomy of a worksheet: Joint Custody 8. STEP 8: Subtract Direct payments made to cover some child

support expenses made by the noncustodial parent on behalf of the child for work-related net child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses.

Special Statutory Provisions

§ 9:311 defines material change in circumstances when DCFS is involved a. In cases where department of children and family services is providing support enforcement services: i. "material change in circumstances" exists when strict application of child support guidelines would result in at least a 25% change in existing child support award b. This number is not a hard requirement outside of applicability of this statute - this statute was created to save state authority (DCFS) time.