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77 Cards in this Set
- Front
- Back
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How would you classify a custody arrangement in which the parents agree without a hearing from the court?
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Stipulated judgment or consent decree
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What is the standard a parent must meet to modify a custody arrangement in which there was no hearing before the court?
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The heightened burden of proof in the Bergeron case does not apply here. The parent need only show that
(1) material change of circumstances (2) the proposed modification is in the best interest of the child |
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If a custody decree was rendered after a court receives and considers evidence of parental fitness, what must a parent prove in order to modify the custody?
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The proponent of change must show that a change in circumstances has occured such that
(a) the continuation of the present custody is so deleterious to the child as to justify the modification of the custody decree; or (b) the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child Bergeron v. Bergeron ***note that this standard applies not only to changes in custody but changes in domiciliary status |
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What are the BIOC factors?
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PA HELPS CHAMP
Prior relationship Ability to nurture Health - mental and physical Emotional ties Location Preference of child Stability Cooperation with other party History - home, school, commuity Ability to provide material needs Moral fitness Past caregiver |
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What are a non-custodial parent's visitation rights?
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A parent not granted custody or joint custody 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.
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Where a tract of land confers a right of use to a part of an adjacent tract of land to the "purchaser," how would you classify that right?
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It clear the parties intended to create a servitude but the issue is whether it is personal or predial. A personal servitude creates a right in favor of a person while a predial servitude imposes an obligation on the servient estate.
It could be argued that the right is the type that is of greater value to the estate than to a person. Moreover, it was granted to "purchaser" and not to a named person. If this argument is successful, it will be classified as a predial servitude. Otherwise, it will be a personal servitude - right of use. |
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What is a building restriction and what are the limitations on them?
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Charges imposed by the owner of an immovable pursuant to a general plan that governs building standards, specific uses, and improvements. The plan must be feasible and capable of being preserved. They create reciprocal rights and charges on all affected lots.
The owner can sue to enjoin activities that violate the building restriction. |
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What is the BOP to rebut the community presumption?
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Preponderance of the evidence
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What is a declaration of paraphernality and what are the form and filing requirements?
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Instrument in which a spouse reserves the fruits and revenues of his separate property as separate.
Form: authentic act or act under private signature duly acknowledged Filing: conveyance records of parish of domicile for movables and situs for immovables Notice must be given to the spouse.(after 2008) |
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When damages are awarded for personal injuries during the legal regime, are they community or separate?
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Lost earnings and medical expenses = community
pain and suffering = separate |
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Discuss the legal requirements concerning appointments and duties of a curator.
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A curator is appointed by the court to manage the person and property of the interdict in accordance with the interdict's limitations.
preferential list of persons: (1) spouse; (2) adult children (3) parent (4) roommate for 6 months (5) any other person Qualifications: -over 18 -not interdicted -resident of state Duties -take oath & make list of property values -fiduciary - BIOI -take possession, preserve, and administer interdict's property |
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Discuss procedure and requirements for removing someone as a curator
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Upon someone's motion or court's own motion to remove them for good cause.
BOP= clear showing that curator is not performing duties Court will remove if it is BIOI and will consider the following factors (1) gross negligence w/ property (2) failure to render account (3) failure to obey court order (4) proof of gross misconduct or mismanagement in performance of duties (5) incapable of performing duties (6) abuse of interdict, failure to educate, or provide independence GAOMIA |
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Two co-owners have a written agreement that neither can seek partition for 25 years. Enforceable?
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As a general rule, no one can be compelled to co-own property with another, and any co-owner has an imprescriptible right to demand partition.
One exception is that they are permitted to exclude partition by agreement for up to 15 years. Writing is necessary since the affected property is immovable and recordation binds third parties. An agreement for more than 15 years will be enforced but only for 15 years. In the meantime, either co-owner may ask the court to determine the use and management of the property. ***note that when there is a stipulation in a will that prohibits partition for more than 15 years, courts will likely limit to 15 years rather than strike down completely as it violates public policy only to the extent that it exceeds 15 |
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A surveyor made a mistake and fixed A's boundary 50 feet onto B's land. A built an improvement on this encroachment. B demands removal. What is the result?
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First analyze whether there has been ownership by acquisitive prescription.
If not, analyze whether he has the right to possess. A can bring a possessory action against B which imposes a higher burden of proof on B to bring a petitory action. When a possessor is evicted by the true owner, the rights relative to improvements depend on good faith or bad faith. Good faith for purposes of accession = act translative of ownership and no knowledge of defects of ownership (can innocently possess more than title calls for) If A is GF ---> B cannot demand removal but must pay A for cost of/current value of materials/labor or enhanced value of immovable. If A is not GF ---> right to compel removal at A's expense plus damages for injury OR keep improvement and pay as described above ****note that the above analysis applies to improvements. where there is a building, consider legal servitude for an encroaching building. it requires: (1) builder is in good faith when constructing the building that encroached upon the land (2) owner of the land must not have complained within a reasonable time or else have failed to complain before substantial completetion of the building Satisfaction of these requirements allows court discretion to award a predial servitude and A will be required to compensate B for the value of the servitude and any other damages |
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3 ways to deimmobilize a component part
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(1) owner removes it with no intention of putting it back (if no rights of third persons)
(2) no longer serves use due to damage or deterioration (3) delivered to an acquirer in good faith pursuant to an act translative of ownership |
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What 4 things can a co-owner do without concurrence of other co-owners
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(1) right to use (unless agreed otherwise
(2) right to preserve (3) right to lease, aliente or encumber undivided interest (4) right to partition (unless agreed otherwise) |
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When is an award for child support to be made effective?
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retroactively to the date of judicial demand except for good cause shown.
never effective prior to date of judicial demand |
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Explain the nature of earnings from copyrighted property.
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Although copyrights are subject to the federal law which partially preempts state marital property laws, LA's community property laws have been permitted to apply so as to permit recognition of a spouse's co-ownership of the earnings from copyrighted property which was created during the legal regime. Thus, a spouse's co-ownership extends to both earnings from the property during the legal regime as well as after termination of the regime.
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When are former spouses entitled to recover reimbursement for education and living expenses of a student spouse?
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When the education and training increased the earning power of the spouse and the contributing spouse did not benefit from the increased earnings during the marraige.
Some courts consider the following factors: (1) expectation of shared benefit when contributions were made (2) degree of detriment suffered (3) magnitude of benefit received by student spouse |
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What constitutes a building?
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Supreme Court looks at a variety of factors includng
(1) whether it is to be inhabited by people (2) its cost (3) its permanence (4) prevailing notions of what constitutes a building |
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What constitutes an other construction?
What do you call something attached to an other construction? What tests apply? |
permanent attachment to the ground
Accessory - use substantial damage test and ask whether it serves principle use of the other construction |
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How can you acquire a predial servitude by acquisitive prescription?
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Must be apparent, meaning perceivable by exterior works
10 years with GF and just title 30 years otherwise (note that precarious possessors cannot acquire ownership by AP because they were granted permission to use the pathway - must give actual notice of intent to possess on his own) |
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If a usufruct builds an improvement on the property of the naked owner and it increases the value of that property, can the usufructuary demand reimbursement?
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No. right to remove, but no right to reimbursement if he cannot remove whether or not consent was given to make the improvement
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Under what circumstances may a judgment of interdiction be modified or terminated?
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for good cause. also terminated upon death of interdict
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Under what two circumstances may a co-owner demand removal of an improvement made without required consent of all co-owners?
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(1) improvement is inconsistent with the use of the property
or (2) co-owner acted in bad faith by making the improvement despite the objection of the other co-owner |
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A sold his house to B and then removed something from it. B argues that what was removed was essential to the home. Advise of rights.
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Was it a component part?
Two tests: (1) substantial damage (2) a thing attached to the building is a CP if according to prevailing uses, it serves to complete a building of the same general type ask: (a) physically attached? (b) type of building? |
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Can a usufructuary lease property? If so, when does the lease end?
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Usufructuary may lease, alienate or encumber his right.
Any such contract ceases of right when the usufruct ends, unless the usufructuary has been expressly granted the right to dispose of nonconsumables. The naked owner will be entitled at termination of the usufruct to any dimunition in the value of the thing at that time attributable to the lease (for example a low rental rate) |
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Can a usufructuary make a donation inter vivos of property?
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The right to dispose of nonconsumable things does not include the right to donate unless that right has been expressly granted.
The usufructuary who donates a nonconsumable is obligated to pay the naked owner at termination of the usufruct the value of the thing as of the time of the donation. |
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What factors will a court consider when determining the amount of child support if any a spouse must pay?
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Generally look to the needs of the children and the ability of the parents to provide support.
LA adopted the income shares model: 1. consider combined income of parents 2. add costs of health insurance, child care costs, extraordinary med expenses, and other extraordinary expenses 3. H&W will be responsible for their share based on the total income that they earn If the child remains split between two households: court will calculate child support separately for the children living in each parent's household and the parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation. |
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BOP and PP for disavowal where presumption of paternity attaches during marriage
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clear and convincing evidence (testimony must be corroborated by other evidence)
one year from the day the husband learned or should have learned of the birth of the child unless the husband lived separate and apart from the mother for 300 days immediately preceding the birth - then it's one year from notification in writing that he is asserted the father |
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When can an enclosed estate demand passage?
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-right is imprescriptible
-estate that furnishes the shortest passage to nearest public road -passage = location least injurious to intervening land -owner seeking passage must indemnify other estate for damage sustained -note that no right exists where the owner voluntarily encloses himself |
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PP for contributions made to education or training?
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3 years from date of signing of judgment of divorce or declaration of nullity
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PP and BOP for paternity action brought by a child after death of father?
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1 year from date of death - this is PEREMPTIVE. can bring action even if presumed to be child of another man.
BOP = C&C |
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How would you classify an oil platform?
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An "other construction" permanently attached to the ground which is classified as immovable IF it is a component part of the tract of land. If it is not a component part of the land, it is movable.
When it is not owned by the owner of the ground, it is movable. |
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Upon the expiration of a lease, who has the right to keep buildings and constructions placed thereon?
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The lesee has the right to remove the structures it has placed there along with the duty to restore the property to its former condition.
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What are the rights of an absent person that has not been declared dead and reappears?
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Curatorship terminates as a matter of right and curator is bound to account for his management and to restore the property to the formerly absent person as it exists when he returns.
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What are the rights of an absent person declared dead who reappears with regard to get back interests in property sold? What if he wasn't declared dead?
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If declared dead: can only recover from transferees by gratuitous title. can also recover net proceeds of things alienated and for diminution of value of things encumbered.
if not declared dead: curator allowed to sell property with approval of court. once sold, absent person has right to proceeds. Absent person can attack the disposition if the sale was absurdly low because curator is not permited to make a donation. |
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who is entitled to cash dividends / stock dividends at termination of usufruct?
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Cash dividends belong to usufructuary with no requirement of accounting to naked owner because they are civil fruits
Stock dividends belong to naked owner subject to usufruct, and usufructuary must return them to naked owner at termination |
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When does the right to compel fixing of a boundary between contiguous lands prescribe?
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It doesn't
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Is a right of use heritable?
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A right of use established in favor of a natural person is NOT extinguished at the death of that person unless the contract provides otherwise
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list the 4 kinds of tutorship
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1. by nature
2. by will 3. by effect of the law 4. by appointment of a judge (dative tutorship) |
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2 requirements for partition in kind
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(1) co-owned thing can be divided into lots of nearly equal value
(2) sum value of individual lots is not significantly lower than value of entire property |
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List the four methods by which a private thing can be dedicated to public use
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1. formal dedication\
2. statutory dedication 3. tacit dedication 4. implied dedication |
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List the 3 kinds of emancipations under LA law
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1. judicial emancipation
2. emancipation by marriage 3. limited emancipation by authentic act |
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Who has standing to sue to enforce a building restriction? What are the remedies?
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Every landowner in a subdivision is adversely affected by violations and has a substantive right and standing to sue. There is a 2 year prescriptive period that runs from date of violation. . Building restrictiosn may be enforced by mandatory and prohibitory injunctions. Moreover, violators may be sued for damages to the Association.
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What is the standard for determining domicile? What is the standard for military members?
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In order to change domicile, must (1) actually reside in new state and (2) intend to make that new state his principal establishment
Military members are presumed to retain the domicile of their home state and does not change merely because of his move of physical residence while in the service of his country. Servicemen may abandon domicile and establish a new one upon satisfaction of two prong test above. |
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What factors does the court consider in awarding final spousal support
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The party receiving support must be free from fault and maintaining the status quo is not the benchmark for final support. Instead, courts look to TAF CRIED
Tax consequences to either party Age and health of the parties Financial obligations of the parties Child custody arrangements Rehabilitative support Income and means of parties Earning capacity Duration of the marriage |
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BOP and PP for mother to file a paternity action against a man who is not presumed to be the father to get child support
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no time limit when seeking to exercise the right of child support
must establish by preponderance of the evidence if man is alive evidence may include blood tests / relationship prior to conception |
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BOP to establish maternity
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P of E
birth is relevant issue, not blood or DNA surrogacy contracts null except where the surrogate woman is related by blood or affinity to the husband or wife |
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Disavowal by first husband when there is a second husband
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If the mother is remarried at the time of the child's birth, and the first husband or his successors disavow, the second husband is presumed to be the father.
Second husband can disavow within one year peremptive period from the day of judgment of disavowal of first husband |
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Disavowal by husband or his heirs (man and mother are married)
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BOP = clear and convincing; testimony corroborated by other evidence
PP = one year after he learned or should have learned of the birth of the child Exception = if lived separate for 300 days preceding birth, he gets 1 year from date he is notified in writing that he is father Heirs = get 1 year from death of father if prescription began and 1 year from date they are notified in writing if prescription has not begun |
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Contestation and Establishment Action by Mother of Child
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Mother can establish both that her former husband was not father and her new husband is only if the present husband has acknowledged the child by (1) authentic act or (2) signing the birth certificate
BOP = C&C; testimony corroborated by evidence PP = 180 days from her marriage to the present husband and within 2 years from the birth of child |
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A man marries the mother of a child and there is no presumption of filiation to another man
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he can filiate by:
(1) authentic act or (2) signing the birth certificate AND mother must concur in juridical act |
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Overcoming the presumption of paternity after marrying and acknowledging
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BOP = clear and convincing; testimony alone insufficient
180 day peremptive period from the day of marriage or acknowledgement, whichever is later |
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formal acknowledgement by father who is not married to the mother
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authentic act or signing BC
presumption in favor of child only except for child support/custody/visitation issues if the man executing the formal act of acknowledgement has no biological affiliation, it is absolutely null however, an acknowledgement may be revoked without cause for 60 days by submitting a sworn statement or in a judicial hearing; thereafter it requires C&C evidence of a vice of consent or that he is not the father and 2 year PP |
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Child's action to establish paternity (paternity action)
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if father is living = PoE
if father is dead = C&C Peremptive P= 1 year of death (for succession purposes only) |
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Father's action to establish paternity (avowal action)
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BOP = PoE
PP=1 year from birth if child is presumed to be father of another man unless mother in bad faith deceived. then 1 year from date K/SHK of paternity or within 10 years of birth, whichever is first. if child is dead = one year from death if child is not presumed to be the child of any man = no time limit during life |
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Explain the difference between a predial servitude and a personal servitude
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a predial servitude is a charge on a servient estate for the benefit of a dominant estate
a personal servitude is a charge on a thing for the benefit of a person. the personal servitudes are usufruct, habitation, and rights of use. If the act creating the servitude does not say whether the benefit is for the estate or for a particular person then: a. if the right granted is of a nature to confer an advantage on an estate, the servitude is presumed to be predial b. if the right granted is merely for the convenience of a person, the servitude is not considered predial unless it is acquired by a person as owner of an estate for himself, his heirs, and assigns. |
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The servient estate is required to:
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a. abstain from doing something on his estate
or b. permit something to be done on it. cannot have a duty to perform an affirmative act |
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A landowner who builds a wall has the right to rest half of it on his neighbor's land if:
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(1) is made of solid masonry
(2) is at least as high as the first story (3) is not more than 18 inches thick plus 3 inches of plastering |
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Gratuitous right of passage
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when in the case of partition,(co-ownership) or voluntary alientation (tract of land is sold to you and is enclosed but had a right of passage previously), passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised even if not the shortest route to the public road and even if the act of partition or alienation does not mention the servitude.
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No Right of Passage
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If an estate becomes enclosed due to the voluntary act of the owner, neither the owner nor his successors has the right to passage.
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how to create a conventional servitude
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Generally, established by all acts by which immovables may be transfered.
Thus, inter vivos donation of immovables requires authentic act. transfer = AA or act under private signature |
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Who may establish a conventional servitude?
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1. mandatary if he has express power to do so
2. naked owner if doesnt impinge on usufruct 3. NOT usufructuary 4. owner for term or condition, but ceases with right 5. co-owner, with consent of all |
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Doubt as to the existence, extent or manner of exercise of a predial servitude shall be
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resolved in favor of the servient estate
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3 ways to establish an apparent conventional servitude
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1. by title
2. by destination of the owner 3. by prescription |
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explain creation of a servitude by destination of the owner
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where there exists between two estates owned by the same person, a relationship that would have resulted in formation of a servitude, then one is formed when the owner ceases to own both of the estates unless there is an express provision to the contrary
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rights of dominant estate
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1. right to make necessary works at his expense for use and preservation
2. right to compel servient estate to make works if act creating servitude imposes this duty 3. if dominant estate is divided, the servitude remains provided it does not become burdensome 4. right to freedom from interference |
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name the 7 ways that a conventional servitude is extinguished
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(1) total and permanent destruction of dominant estate or part of servient estate burdened with servitude
(2) prescription of nonuse (10 years - remember use of an accessory right is not use of the servitude) (3) confusion (4) abandonment of servient estate by written act (5) renunciation by owner of dom estate (express/written) (6) expiration of term (7) dissolution of right of grantor |
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What is a building restriction? how is it created?
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Charges imposed by the owner of an immovable pursuant to a general plan that governs building standards, specific uses, and improvements. The plan must be
(1) feasible (2) capable of being preserved In the absence of a viable general plan, the restrictions may be a valid predial servitude Can only be established by juridical act executed by the owner of an immovable, or by all owners of the affected immovables. |
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Terminating and Amending building restrictions
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may be terminated or amended as provided in the act.
if silent, requires agreement of a specified percentage of owners. (50% if restrictions are in place for 15 years; 2/3 if 10 years) However, supreme court in 1999 says in a "residential planned community", these rules only apply to amendments that lessen restrictions. If there are new restrictions or expansion of existing ones, then all owners must conesnt. Legislature overruled this promptly but there are constitutional limitations on the power to enact retroactive legislation. after two years, the immovable is freed of the restriction that is violated if no suit is brought (that particluar lot, not that particular violation) restrictions may be terminated by abandoment |
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doubt as to the existence, validity, or extent of building restrictions is resolved in favor of
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the unrestricted use of the immovable
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Enforcing building restrictions
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may be enforced by mandatory, and prohibitory injunctions and damages
any restricted landowner or homeowners association has standing to sue |
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Special rules for residential planned communities
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"a real estate development used primarily for residential purposes in which the owners of separately owned lots are mandatory members of an association."
if act is silent, establish restrictions by 3/4 vote if act is silent, increasing existing restrictions = 2/3 vote if act is silent, reduced or terminated by more than 1/2 can decline to be covered by filing a statement within 30 days |
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COL - movables CP
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movables acquired by either spouse during the marriage is governed by the law of domicile of the acquiring spouse at the time of acquisition
Exception 1: the source of funds used to purchase an immovable in LA will be classified under LA law regardless of domicile Exception 2: where both spouses move to LA and at least one spouse is a domiciliary of LA at termination of marraige, property acquired before moving to LA is treated as though it were acquired after moving here |
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COL - CP immovables
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General rule: immovables are governed by law of situs.
exception 1: If no one was ever domiciled in LA, but immovable is in LA apply law of domicile of the acquiring spouse at death. When immovable is situated elsewhere and acquired during marriage by either spouse while domiciled in LA, apply LA law. |
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What is the special rule for reimbursement for using community funds to repay the purchase loan of the family home when it is separate property?
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court limit's the other spouse's reimbursement claim to the reduction of the principal. rationale is that the spouse is living in the home rent free and thereby deriving a benefit from the separate property
Also, a spouse must not be charged rent after spouses physically separate unless the parties agree. |
