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SULC - Family Law 2006


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Jurisdiction over Marriage - Four Aspects of This Jurisdiction
1. religious and secular authorities
2. state or federal governments
3. states
4. nations or states one of which at least is not a state of the Union
Marriage-History and Background
American law adopted either as part of the common law heritage or expressly by statue, the principles by which English law determined the validity of marriage the rules were enforced in the ecclesiastical courts in England, however America had no such courts
3 major elements of our marriage law
1. the method of entering the relationship
2. the factors making marriages invalid
3. the jurisdiction of courts to rule on the validity of marriages
- all of these elements were influenced by our English inheritance
Marriage-the State’s power to Control the Relationship
In America marriage has always been regulated by the civil authorities statutes in many states have been enacted providing marriage as a civil contract
religious denominations are subordinate to the law with respect to marriage
power to regulate marriage rests with the state
Patton v. Cities of Philadelphia and New Orleans
Whether the marriage of Abraham and Eleonore was a valid civil contract?

The ct. found that the marriage was valid w/out the solemnization, as long as the lawful wife remained in good faith
The Louisiana Position
Priests and ministers of religion have always been permitted to officiate as officers of the state in the celebration of marriages, unlike France
La. Civil Code art. 86
-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
State and Federal Jurisdiction Over Marriage
-U.S. Constitution does not give the fed. govt. jurisdiction to legislate or to adjudicate on marriage.
-this jurisdiction is reserved to the states
-Congress-may enact laws governing all things in territories and possessions of the U.S (Art.4, Sec. 3)
Delineation of Jurisdiction among States of the Union
-Congress may prescribe under what circumstances a state’s law will apply to the marriage and as to what persons a state may permit its courts to hear marriage cases
-the only legislation enacted by Congress, the Defense of Marriage Act- which provides that a court in any stat may refuse to recognize a same-sex marriage
Jurisdiction Among Nations and States Not both States of the Union
-each nation or state must decide for itself where its own legislative and judicial jurisdiction or another state’s begins and ends
-there had to be a solemnization of marriage
-states have the ultimate power over marriage
U.S. Constitutional Guaranties and the Law of Marriage

A. Freedom of Religion
Reynolds v. U.S.
-P was of the Mormon faith and engaged in the practice of polygamy because it was required by this faith
Issue- Whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land?
-The ct. found that the state cannot infringe on opinions, and beliefs.
-laws are made for the govt. of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
14th amendment
requires that no state shall “…deny to any person w/in its jurisdiction the equal protection of the laws
rational basis test
- assumes the validity of a legislative judgment as to relevant similarities and differences
- a law will be upheld unless there is no rational connection between the classification and a legitimate state interest
strict scrutiny
-laws that discriminate to the disadvantage of a suspect class or that impinge upon a fundamental right have been afforded strict scrutiny
-to pass strict scrutiny, use of the classification must be necessary to achieve a compelling governmental interest
-if an alternative means are available that are less burdensome to the suspect class or the fundamental right, then equal protection requires that they be used instead
-strict scrutiny has also been triggered when a classification impinges upon a fundamental right
suspect classes
a discrete and insular minority that has been saddled w/disabilities or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process
fundamental rights
generally involves denial or burdening of a particular group’s access to a fundamental right or a burden imposed on those on those who have exercised the right
e.g. - right to vote, marriage
intermediate scrutiny
classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives, even when they discriminate against men
Substantive Due Process
-in deciding the constitutionality of a state statute under substantive due process the ct. strikes a
-the fundamental right of the individual is balanced against the interest which the government is trying to achieve and the degree of relationship between the stature and that interest
Loving v. Virginia (1967)
(Racial Discrimination)
Loving v. Virginia (1967)
-the ct. found that a Virginia statute deprived the Lovings of due process of law under the 14th amendment
-marriage being a basic civil right of man and fundamental to our very existence and survival, denial of this fundamental freedom on the basis of racial classifications violates the 14th amendment
-the freedom to marry or not marry, a person of another race resides w/the individual and cannot be infringed by the state
Baehr v. Lewin
(Sex Discrimination)
- we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions
-neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed.
-the ct. held that the applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise
Turner V. Safely
(Sex Discrimination)
-a prison inmate retains those constitutional rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system
-the right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration
Hurry v. Hurry (1919)
(Sex Discrimination)
It is the contention of the D that one spouse should not be permitted to desert the other, and otherwise violate the marriage obligations and then be allowed to use his or her wrong as the basis for divorce.
Engagement, or K to Marry
-if an engagement, or k with another to enter into marriage w/him by compulsory specific performance.
-no one is to be compelled to marry another, even though he has obligated himself to do so
Art. 87- Contract of marriage; requirements
The requirements for the k of marriage are: 1. the absence of legal impediment, 2. marriage ceremony.
The free consent of the parties to take each other as husband and wife, expressed at the ceremony.
Engagement, or K to Marry
the promise of marriage is treated as a k and damages are granted by application of Art. 1934 concerning damages for breach of k
Glass v. Wiltz
When a party is given a gift for consideration for completion of a future act, and that act is not carried out, then that party is not entitled to keep the gift as damages.
Sanders v. Gore
When a party is married they may not k to marry.
Donations in Contemplation of Marriage- Art. 1740
-every donation in contemplation of marriage falls if the marriage does not take place
-a donation encouraging one to agree to marriage- unless the failure to marry is made a resolutory condition to the donation, the failure of the marriage to take place does not cause the donation to fall
The Marriage Contract
a k entered into by the intended spouses primarily to adopt a matrimonial regime- that is a plan of order respecting their patrimonial rights and obligations during marriage including a rule on the amt each spouse shall contribute to the expenses of the marriage
Legal Regime (before Jan. 1980)
one in which the spouses conferred on themselves a right in indivision to basically (1) the products of their labor and industry, (2) the fruits of their separate capital, and (3) the things acquired in exchange for such products and fruits, (4) over the whole of which the husband was given by a general rule to which there seemed to have been increasing exceptions complete management discretion.
Legal Regime (after Jan. 1980)
-provides as follows a peculiar ownership in indivision of :

a. the products of their labor and industry
b. the fruits of their separate property absent recordation of an authentic declaration
c. things acquired in exchange for such products and fruits;
d management powers over things accorded to either the husband or wife, both husband and wife, or to only the husband or wife depending on the circumstances
- parties cannot k away the obligation to support, fidelity, and assistance
- separate property before marriage stay separate, but property obtained after marriage is community property
Content of pre-marital counseling:
-seriousness of marriage
-it intention of the couple that their marriage be lifelong
-the intention of the couple to seek counseling if difficulties arise in their marriage
-after pre-marital counseling executes a declaration of intent (contractual) signed by the couple containing their contractual agreement to take all reasonable steps to preserve the marriage, including marital counseling, if difficulties arise
Art. 87- absence of a legal impediment
Conditions to Lawful Marriage
The requirements for the contract of marriage are:

The absence of legal impediment.

A marriage ceremony.

The free consent of the parties to take each other as husband and wife, expressed at the ceremony.
Art. 88
The Absence of a Legal Impediment
a married person may not k another marriage
Art. 89
The Absence of a Legal Impediment
persons of the same sex may not k marriage w/each other. a purported marriage between persons of the same sex contracted in another state shall be governed by the provisions of the C.C
Art. 90
The impediments to marriage are:
1. being a party to an undissolved legal marriage
2. being of the same sex
3. the parties being related in the direct line
4. the parties being related in the collateral line w/in the fourth degree, whether of the whole or of the half blood
-in the last two instances the impediment exists whether or not the parties are related by consanguinity or by adoption
-collaterals related by adoption only, the parties may obtain judicial authorization to marry
The Nullity of Marriage
some unlawful marriages are null but may be confirmed by the spouses and some are null and may not be confirmed
R.S. 9:272
Contract for Covenant Marriage
A. A covenant marriage is a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship. Parties to a covenant marriage have received counseling emphasizing the nature and purposes of marriage and the responsibilities thereto. Only when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized.
Marriages Specifically Declared Null But Subject To Confirmation
-marriages which are null only because the consent of one or both parties has not been given freely are not forbidden marriages
-if the party has confirmed the marriage after recovering his liberty or regaining his discernment the cause of nullity may not be invoked
Lacoste v. Guidroz (1895)
Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, violence or menace, or by the representatives of such parties and they may be avoided either by exception to suits brought on such contracts, or by action brought for that purpose.
Art. 94
-a marriage is absolutely null when contracted w/out a marriage ceremony, by procuration, or in violation of an impediment
-a judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person
Art. 95
- a marriage is relatively null when the consent of one of the parties to marry is not freely given
Absolutely Null Marriage
-produces no effects unless one or both of the parties contracted the marriage in good faith
Art. 96
- an absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith
-when the cause of the nullity is one party’s prior undissovled 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
-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. 97
- a relatively null marriage produces civil effects until it is declared nulled
putative marriage
- a marriage in which husband and wife believe in good faith that they are married; but for some technical reason are not formally married
-are usually treated as valid and do not need to be formalized
Article 98. Mutual duties of married persons-
Incidents and effects of marriage
Married persons owe each other fidelity, support, and assistance.
Article 99. Family authority
Incidents and effects of marriage
Spouses mutually assume the moral and material direction of the family, exercise parental authority, and assume the moral and material obligations resulting therefrom.
Article 100. Surname of married persons
Incidents and effects of marriage
Marriage does not change the name of either spouse, however, a married person may use the surname of either or both spouses as a surname
Art. 2325-Matrimonial regime

The Patrimonial Effects of Marriage Between the Spouses
a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons
Art. 2326-Kinds of matrimonial regimes

The Patrimonial Effects of Marriage Between the Spouses
may be legal, contractual, or partly legal and partly contractual
Art. 2327-Legal regime

The Patrimonial Effects of Marriage Between the Spouses
the community of acquets and gains established in Chp.2 of this title
Art. 2328-Contractual regime; matrimonial agreement

The Patrimonial Effects of Marriage Between the Spouses
A k establishing a regime of separation of property or modifying or terminating the legal regime.
Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law.
Art. 2329. Exclusion or modification of matrimonial regime.
Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.
During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.
La. C.C. Art 101 Termination of marriage
Marriage terminates upon: (1) the death of either spouse; (2) divorce; (3) a judicial declaration of its nullity, when the marriage is relatively null; (4) the issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law.
La. C.C. Art 102 Judgment of divorce; living apart one hundred eighty days prior to rule
Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that 180 days have elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least 180 days prior to the filing of the rule to show cause
The motion shall be a rule to show cause filed after all such delays have elapsed.
La. C.C. Art 103 Judgment of divorce; other grounds
Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
(1) The spouses have been living separate and apart continuously for a period of 6 months or more on the date the petition is filed;
(2) The other spouse has committed adultery; OR
(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at HARD LABOR.
La. C.C. Art 104 Reconciliation
The cause of action for divorce is extinguished by the reconciliation of the parties.
La. C.C. Art 105 Determination of incidental matters
In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immovable; or use of personal property.
Menge v. Menge
To prove adultery the evidence must be so convincing that excludes all other reasonable hypotheses than the guilt of adultery. When a wife testified that she and another man got into bed together, but did not have sexual intercourse, yet admits to oral sex, the burden of proof required to prove adultery has been fulfilled. Oral sex w/ another is adultery if married.
Nickels v. Nickels
Where husband had been found guilty of felony and sentenced to ten years at hard labor, wife's petition for divorce was not premature by virtue of fact that husband's appeal from such conviction was still pending.
Parker v. Parker
A divorce action instituted under art. 102 is abandoned if the rule to show cause provided by that art. is not filed w/in two years of the service of the original petition or execution of written waiver of service of the original petition.
Jordan v. Jordan
Dissolution Of Marriage
Proof of isolated acts of sexual intercourse between judicially separated spouses is not conclusive of an intent to reconcile, but is merely one of the factors to be considered in determining mutual consent and agreement to reconcile.
Doane v. Benenate
Dissolution Of Marriage
Actions of one spouse toward another that normally constitutes cruel treatment are excused when involuntarily induced by a preexisting physical or mental illness.
Sherrer v. Sherrer
The requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree in not susceptible to such collateral attack in the courts of the State which rendered the decree.
Johnson v. Muelberger
Full faith and credit promotes unification, not centralization. It leaves each state with power over its own courts but binds litigants, wherever they may be in the nation, by prior orders of other courts with jurisdiction. A state by virtue of the clause must give full faith and credit to an out-of state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree.
Salvatierra v. Calderon
When a foreign national establishes domicile in Louisiana, such as through residing and participation in a diplomatic mission within the state as well as purchasing a home in the state, Louisiana shall have subject matter jurisdiction over any divorce proceeding and ancillary issues pertaining to that proceeding (alimony, spousal support, community property) that are initiated by that person.
La. C.C. Art 131 Court to determine custody
In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.
La. C.C. Art 132 Award of custody to parents
If the parents agree who is to have custody, the court shall award custody in accordance with their agreement UNLESS the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.
La. C.C. Art 133 Award of custody to person other than a parent; order of preference
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 another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
La. C.C. Art 134 Factors in determining child’s best interest
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party. A person who asks for custody is putting their mental health at issue.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a
close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously
exercised by each party.
La. C.C. Art 135 Closed custody hearing
A custody hearing may be closed to the public.
La. C.C. Art 136 Award of visitation rights
A. 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. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
C. In the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supercede those of this Article.
Creed v. Creed-
Child custody
In order for a non-parent, such as a grandparent, to gain custody of a child, it must be proven that the parent would be detrimental to the child or cause substantial harm and the award of custody to that non-parent is in the best interest of the child. A mother’s unfortunate economic status and marginal lifestyle are not reasons enough to deny her custody of her children
Simmons v. Simmons
Child custody
Wife filed suit for custody and said that under the post separation family violence act her husband has showed a history of perpetrating family violence and should not be given custody. The court said that b/c the violence only occurred when the husband learned of the adulterous affairs of his wife, this is not enough to prove a history of violence.
Bergeron v. Bergeron
When a parent divorces a second spouse, obtains custody of children from that marriage, then marries again, all after the initial award of custody; these circumstances do not serve as proof of changes that would affect the welfare of the child to warrant a change in the custodial parent.
Page v. Page
Child custody
When the domiciliary parent is proven to have placed the children in an environment of open concubinage, illegal drug use, foul language and possible sexual abuse, although none of the factors alone are enough to warrant a change of custody the cumulative effect supports a change.
Curole v. Curole
When a custodial parent decides to relocate to engage in a family business, although the parent is fund to be in good faith, the relationship of the father and the children would be jeopardized thereby not satisfying the dual requirement of best interest of the child.
Art. 141-Child Support
In a proceeding for divorce or thereafter, the 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.
The court may award an interim allowance only when a demand for final support is pending.
Art. 142-Modification or termination of child support award
An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.
Guillot v. Munn
Child support
The party urging a reduction in the child support obligation based on the amount of time spent w/the child must bear the burden of proving that he or she exercises shared custody or extraordinary visitation w/the child, that the extra time spent w/the non-domiciliary parent results in a greater financial burden on that parent and in a concomitant lesser financial burden on the domiciliary parent, and that the application of the guidelines would not be in the best interest of the child or would be inequitable to the parties.
Walden v. Walden
Child support
An award of child support may be modified if the circumstances of the child or of either parent change and shall be terminated upon proof that it has become unnecessary.
An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.
Piccione v. Piccione
Child support
In determining the amount of child support to be awarded, the court must consider the needs of the child and the ability of the parents to pay.
Falterman v. Falterman
Child support
Where the parties’ monthly combined adjusted gross income exceeds 10,000, the ct. shall use its discretion in setting the amount of the basic child support obligation, but in no event shall it be less than the highest amount set forth in the schedule.
Toups v. Toups
Child support
A parent will not be relieved of his primary obligation to support his children because of financial condition he has brought upon himself.
Dubroc v. Dubroc
An agreement between divorced parents to suspend the mother’s right to receive child support payments while the father supports and maintains the child in his own home is enforceable if it promotes the best interest of the child
La. R.S. 9:321 Retroactivity of judgment concerning spousal support
A. Except for good cause shown a judgment awarding, modifying, or removing an interim spousal support allowance shall be retroactive to the date of judicial demand.
B. (1) A judgment that initially awards or denies final spousal support is effective as of
the date the judgment is rendered and terminates an interim spousal support
allowance as of that date.
(2)If an interim spousal support allowance award is not in effect on the date of the
judgment awarding final spousal support, the judgment shall be retroactive to the
date of judicial demand, except for good cause shown.
C. Except for good cause shown, a judgment modifying or revoking a final spousal support judgment shall be retroactive to the date of judicial demand.
D. Spousal support of any kind, EXCEPT that paid pursuant to an interim allowance award, provided by the debtor from the date of judicial demand to the date the support judgment is rendered, to or on behalf of the spouse for whom support is ordered shall be credited to the debtor against the amount of the judgment.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence.
F. A judgment extinguishing an obligation of spousal support owed to a person who has cohabited with another person of either sex in the manner of married persons shall be retroactive to the date of judicial demand.
Art. 51- Proceeding for declaration of nullity of a marriage; interim incidental relief-
Spousal Support
In a proceeding for declaration of nullity of a marriage, a court may award a party the incidental relief afforded in a proceeding for divorce.
Art. 152. Proceeding for declaration of nullity of a marriage; final incidental relief-
Spousal Support
After the declaration of nullity of a marriage, a party entitled to the civil effects of marriage may seek the same relief as may a divorced.
Incidental relief granted pending declaration of nullity to a party not entitled to the civil effects of marriage shall terminate upon the declaration of nullity.
A party not entitled to the civil effects of marriage may be awarded custody, child support, or visitation. The award shall not terminate as a result of the declaration of nullity.
Alexander v. Alexander
Spousal Support
Where one spouse after leaving the matrimonial domicile, begins to reside w/his or her parents and gains no debts or expenses and the other spouse accrues all the joint debts; that spouse is not entitled to alimony pendente lite
Rodriguez v. Rodriquez
Spousal Support
When one party is obligated to pay spousal support to the other party, yet instead he barricades himself in the matrimonial domicile, he is still required by law to provide for the claimant party financial awards to enable her to enjoy life as she did while they were married.
Sonfield v. Deluca
Spousal Support
When a defendant spouse has substantial equity in a home for her and her minor daughter and the plaintiff spouse wishes to use the equity as a means to revoke spousal support, the court may not ask for liquidation of the asset if the home provides reasonable, not lavish, shelter.
Slayter v. Slayter
Spousal Support
When the obligor spouse files a rule to terminate or reduce alimony because he feels the ex-wife is employable and has not sought employment in two and one half years since the divorce the court shall consider her earnings capability in light of all other circumstances.
Adams v. Adams
Spousal Support
When a wife sues for separation due to abandonment and the husband counter sues for cruelty due to jealously, and the separation is granted in favor of the wife but she is not w/out fault, then the court shall reverse such a judgment b/c fault of a spouse must be of a serious nature and an independent or proximate cause of the separation. A wife is not deprived of alimony after divorce simply b/c she was not totally blameless in the marital discord
Lagars v. Lagars
Spousal Support
When a defendant to a divorce proceeding counters w/a request for post divorce alimony and does not allege freedom from fault and does not assert fault on behalf of the plaintiff, then post divorce alimony will not be awarded b/c the spouse seeking post alimony divorce must assert and prove freedom from fault.
La. C.C. Art 121 Claim for contributions to education or training; authority of court
In a proceeding for divorce or thereafter, the court may award a party a sum for his financial contributions made during the marriage to education or training of his spouse that increased the spouse’s earning power, to the extent that the claimant did not benefit during the marriage from the increased earning power.
The sum awarded may be in addition to a sum for support and to property received in the partition of community property.
La. C.C. Art 122 Nature of action
The claim for contributions made to the education or training of a spouse is strictly personal to each party.
La. C.C. Art 123 Form of award; effect of remarriage or death
The sum awarded for contributions made to the education or training of a spouse may be a sum which is payable in installments.
The award shall not terminate upon the remarriage or death of either party.
La. C.C. Art 124 Prescription of spousal claim for contributions
The action for contributions made to the education or training of a spouse prescribes in 3 years from the date of the signing of the judgment of divorce or declaration or nullity of the marriage.
McConathy v. McConathy
In calculating financial contributions of the supporting spouse, the court, using the DeLaRosa formula: Working spouse’s financial contributions to joint living expenses and educational costs of student spouse less half (working spouse’s financial contributions plus student spouse’s financial contributions less cost of education) equals equitable award to working spouse.
Mizell v. Mizell
When a husband proves a material change in his ex-wife’s circumstances such that a modification/termination of permanent is warranted, the burden of proving the contrary falls to the wife, and if she is unable to meet this burden, the alimony obligation would be modified in the husband’s favor.
Mitchell v. Mitchell
When a marriage, which lasts for only a short time and produces no children, ends, a husband who voluntarily retires from his job, thereby drastically reducing his income is still obligated to pay his ex-wife alimony, and the obligation will not be terminated if the spouse to whom the alimony is owed shows that she is still in necessitous circumstances.
Myhre v. Erler
A party will not have a right of action against their spouse in a tort action so long as they are married b/c of the doctrine of interpersonal immunity which prohibits such suits so that domestic tranquility is maintained; but by judgment of divorce, the prescription that was once suspended during marriage will begin to run entitling a party to a right of action against their former spouse.
Mock v. Mock
Biological Filiation
Where a husband files suit to disavow paternity on the basis that they have been separated four yrs, his testimony alone that he did not have sexual intercourse w/his wife during this period was not sufficient evidence to disavow paternity under Art. 187. Such testimony must be able to stand up to any scientific or medical evidence which the court may deem relevant.
In the Matter of R.E
Filiation by Adoption
When an unwed mother duly surrenders her newborn child for adoption, the biological father is notified, and timely files his opposition to the adoption; the unwed father will carry the burden of proving his fitness for parental responsibilities commitment to those responsibilities, and potential for making a valuable contribution to the child’s development. If the father fails to carry this burden, his parental rights will not be brought into existence, and the court shall decree that father’s right to oppose the adoption are terminated.
In re Landry
Filiation by Adoption
When a mother gives birth to her child, allows her mother to obtain legal custody of the child, and marries her current husband, who does not take care of the child’s needs, the stepfather may not petition the court for intra-family adoption if the mother did not get the custody of child transferred from the mother to herself.
Succession of Plummer v. Plummer
Filiation by Adoption
When a man adopts his wife to enable her to participate in his parents’ succession as an heir, the adoption will be considered null and void; b/c it creates an impediment to the marriage, which took place before the adoption.
Wood v. Beard
Parental Authority
When the parent competes w/grandparents of a child, the parent’s right to custody is superior, unless the parent is unable or unfit.
Turner v. Bucher
Parental Authority
When a child of tender years commits a delictual act such as striking an elderly lady while the child is riding his bike, the parent with whom the child resides with will be held legally at fault. Under a legally imposed strict liability, the father will be held liable for the damages.
Deshotel v. Casualty Reciprocal Ins.
Parental Authority
Under Art. 2318, the father of the minor child will be held vicariously liable irrespective of actual residence. When the father lives in Arkansas and the child and the injuries occur in LA, the father will be held vicariously liable if there is no juridical act passing the responsibility to the mother of the child.
Art. 223. Parental usufruct on minor child's property
Parents have during marriage the enjoyment of the property of their children until their majority or emancipation.

This usufruct is nonalienable and exempt from seizure.
Art. 224. Obligations resulting from parents' usufruct.
The obligations resulting from this enjoyment shall be:

1. The same obligations to which usufructuaries are subjected;

2. To support, to maintain and to educate their children according to their situation in life.
Scope of Usufruct- extends to all of child’s property w/the following exceptions:
1. property acquired by the child’s labor
2. property inherited by the child w/the express condition that the property not be included in the parental usufruct
3. property donated inter vivos to the minor, unless the right to a parental usufruct is expressly provided for in written act of donation
In Re Tutorship of Blanque
The father’s obligation to his disabled daughter with countless problems will not be diminished by federal aid, and his obligation will be determined on the extent of the disabilities.
Blanque v. Blanque
Once a child of minority reaches the age of 19, all existing child support obligations automatically expire on that day.
Art. 246. Occasion for tutorship.
the minor not emancipated is placed under the authority of a tutor after the termination of the marriage of his father and mother or judgment of separation from bed and board in a covenant marriage
The tutor has the right and obligation to represent the minor in his civil acts, substantive and procedural, personal and patrimonial.
Kinds of Tutors
1. natural tutors- derive their right and obligation from the law
2. tutors “by will”- are those appointed by the parent entitled to do so either in a testament or in an inter vivos authentic act and confirmed by the judge
3. Legal tutors-those appointed by the judge according to an order of priority of right and obligation specified by law
4. dative tutors-those appointed by the judge from among persons not entitled to demand or obliged in any way to accept the tutorship

*all tutors, however, regardless of the manner in which they come to be tutors, have the same obligations toward the minor
When is there occasion for tutorship
There is occasion for tutorship whenever the minor not emancipated is not under parental authority.
Describe the functions of tutorship and address how they may be divided between persons.
The office of tutor normally combines obligations to the person of the minor (obligations of custody) and to his patrimonial interests (administration and, as necessary, disposition of his assets). The tutor also, with few exceptions has the right and obligation to represent the minor in his civil acts, substantive and procedural, personal and patrimonial.
Article 133 (b)
states that ‘interested persons’ in a tutorship are only reserved to blood relatives.
What is the function of the undertutor?
In every tutor there shall be an undertutor. The undertutors function is primarily to act on behalf of the minor whenever the tutor fails to act or acts wrongly in regard to the interests of the minor. The undertutor never becomes the tutor.
Natural tutors
derive their right and obligation from the law as such, without the intervention of any person.
Tutors by will
are those appointed by the parent entitled to do so either in a testament or in an inter vivos authentic act and confirmed by the judge.
Legal tutors
were those appointed by the judge according to an order of priority of right and obligation specified by law. Now they are appointed from any of three categories of relatives or a surviving spouse.
Dative tutors
are those appointed b the judge from among persons not entitled to demand or obliged in any way to accept the tutorship
Describe the order of call to the tutorship and give the two exceptions.
The order of call to the tutorship is ordinarily the natural tutor, the tutor by will, the legal tutor, and then the dative tutor. There are two exceptions. If the parents have been divorced, the parent with custody and dying first has the right to appoint a tutor by will who need not to be surviving parent. The second exception is that if one parent is interdicted or notoriously insane, the other parent, or in the case of interdiction, the other spouse appointed curator, may appoint the tutor “by will.”
What is a provisional tutor?
The provisional tutor is appointed to a person already born in instances in which a permanent tutor has not [qualified or] been [confirmed or] appointed.
What security is required to a tutor?
Tutors other than natural tutors are obliged to give surety bonds or to substitute for then a special mortgage. Tutors other than natural tutors no longer may give general mortgages to satisfy their obligation of security to the minor.
From when is tutorship effective?
Tutorship is effective upon confirmation or appointment by court.
2. What responsibility does the tutor have for dereliction of the minor? How is this responsibility alter when there is a “tutor of the person” of the minor and a “tutor of the property” of the minor?
The tutor’s responsibility for the damage caused by minors is the same as that of parents during parental authority. Only the “tutor of the person” of the minor and not the “tutor of the property” of the minor should be liable.
After divorce, which parent is liable for damage caused by the child?
Only the parent having custody in fact should be liable for the damage caused by the child.
When does tutorship end
Tutorship ends at the age of majority.
There are 3 kinds of emancipation:
1. emancipation conferring the power of administration
2. emancipation by marriage
3. emancipation relieving the minor from the time prescribed by law for attaining the age of majority

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