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253 Cards in this Set

  • Front
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Grandma lives with her son and two grandsons. The two grandsons are first cousins. A local ordinance requires that only the husband, wife, and unmarried children provided the unmarried children do not have chidlren. Additionally, only one nuclear family below the nominal head of the household is allowed. Because her family does not meet this definition, Grandma is fined and jailed. Is this constitutionally sound?
(Moore v. City of East Cleveland) S. Ct.

No. Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th amendment, Of course the family is not beyond regulation, but the government must examine the gov. interests advanced and the extent to which they are served by the challenged regulation.

The city seeks to prevent overcrowding, minimizing traffic, and parking congestion and a financial burden on school system. The ordinance serves these goals marginally, if at all. A nuclear family could have 12 licensed children while this family has 2.
What is the definition of family under the LA civil code?
Family in a limited sense, signifies father, mother, and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another, and includes the servants of the family. It is also employed to signify all the relations who descend from a common root.
A rent control code says only family members have the right of occupancy when a family member dies. Two men were living together in an apartment for 10 years. One dies and the other is evicted. He argues he is a family member for the purpose of the statute. Result?
Braschi v. Stahl Associates Company, 74 N.Y.2d 201, 543 N.E.2d 49 (N.Y. 1989)


The regulation does not create an alienable property right that could be sold, assigned or otherwise disposed of and, hence, need not be construed as coextensive with the intestacy laws. Moreover, such a construction would be inconsistent with the purposes of the rent-control system as a whole, since it would afford protection to distant blood relatives who actually had but a superficial relationship with the deceased tenant while denying that protection to unmarried lifetime partners.

Contrary to all of these arguments, we conclude that the term “family”, as used in 9 NYCRR 2204.6 (d), should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.

The determination as to whether an individual is entitled to noneviction protection should be based upon an objective examination of the relationship of the parties. In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services.
If a husband and wife have separated and live in 2 states and get a divorce and the money at issue is over $75,000, can they settle the dispute in federal court? why or why not?
No. Ankenbrandt v. Richards.

Federal courts will not exercise diversity jurisdiction to grant or deny a divorce, alimony, property distribution, or child custody or visitation.
This involves a retention of jurisdiction by the court and deployment of social workers to monitor compliance.
Court says state courts are better suited to address these decrees because federal courts lack close association with state and local gov. organizations dedicated to handling these issues. Also, state courts are better suited as a matter of expertise in the area.
Griswold v. Connecticut
o The family is entitled to a right of privacy.
o State of Connecticut cannot make it illegal for married couples to purchase birth control.
o Court found protection of married persons’ individual choices from several amendments
o Care, custody, and control of children is recognized in the 14th amendment.
All states have a bar on what kind of marriage?
bigamous and incentuous and have set minimum ages of consent
What is the definition of marriage under the LA CC?
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.
The lovings were charged with violating a ban on interracial marriage. The state's legitimate purposes were to preserve the racial integrity of its citizens and to prevent the corruption of blood. The state also claims that because it punishs whites and blacks equally, the statute does not implicate discrimination based on race. What did the supreme court conclude?
14th amendment applies - the fact of equal application does not immunize them from the very heavy burden of justification that the 14th amendment requires of state statutes drawn according to race.

There is no legitimate overriding purpose independent of the racial discrimination that justifies the statute. This violates equal protection clause.

To deny the fundamental freedom of marriage on so unsupportable a basis as the racial classifications embodied in these statutes is to deprive all state's citizens of liberty without due process of law. (due process clause applicable too)
How does the Equal Protection Clause relate to marriage? What test is used to determine if differential treatment will be struck down?
It provides a basis for challenging discriminatory laws, including marriage laws. As a general rule, the Constitution permits the government to differentiate among people in a multitude of ways - based on their age, place of residence, or their income - so long as there is a rational reason for the distinction. Under the "rational basis test" such classifications are presumed to be constitutional and will be struck down only if a litigant challenging the law can show that the differential treatment bears no rational relationship to a legitimate public interest.
How does the due process clause of the 14th amendment relate to marriage?
Due process is violated where a person is deprived of an aspect of liberty deemed "fundamental" (Griswold v. Connecticut).
A wisconsin statute requires those under a child support obligation to seek permission before marrying. They must submit proof of compliance with their child support obligation and show that the children will not thereafter become public charges. Constitutional?
(Zablocki v. Redhail)

Because the right to marry is deemed fundamental, there must be a critical examination of the state interests advanced in support of the statute.

The state argues that the statute counsels the applicant on his support obligations and protects the out-of-custody children by preventing new support obligations.

However, the statute merely prevents the applicant from getting married without delivering money into the hands of the children. Moreover, the state has other means of enforcing the support obligaitons.

The second reason contemplates that new support obligations are going to arise if permitted to marry, but the obligation is the same whether the child is born in or out of wedlock. Also, a spouse could actually better the applicant's financial situation.
What are the three requirements for a marriage under LA CC?
1. absence of a legal impediment

2. marriage ceremony

3. free consent of the parties to take each other as husband and wife, expressed at the ceremony
Impediments of marriage under LA law include
1. existing marriage
2. same sex
3. relationship (ascendants and descendants; collaterals within the 4th degree; exists whether related by blood or adoption, but adopted people can marry within 4th degree with judicial authorization)
Marriage ceremony requirement under LA law
both parties must be present. can't be contracted by procuration.
vices of consent under LA law
consent is not free when given under duress or when given by a person incapable of discernment
Absolutely null marriage
(void)

a marriage is absolutely null when contracted without 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 an interested person
relatively null marriage
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
Civil effects of an absolutely null marriage
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. A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties. A purported marriage between the parties of the same sex does not produce any civil effects.
civil effects of a relatively null marriage
produces civil effects until it is declared null
In Goodridge v. Department of public health, plaintiffs filed a lawsuit after being denied marriage licenses because they wished to marry the same sex. Lower court concluded that prohibiting same sex marriage furthers the legitimate interest in safegaurding the primary purpose of marriage, procreation. What did the supreme court of massachusetts say?
The marriage ban does not meet the rational basis test for either due process of equal protection.

The department poses 3 rationales: 1) favorable setting for procreation (2) ensuring optimal setting for child rearing and (3) preserving scarce state financial resources.

Court says (1) heterosexual applicants to marriage are not required to be able to conceive. It is the commitment to one another, not the bearing of children, that is the essence of marriage.

(2)exclusing same sex couples from marriage will not prevent children of same sex couples from enjoying the immeasurable advantages that fflow from the assurance of a "stable family structure"

(3) benefits are available to married couples whether they mingle their finances or depend on each other for support.
What was some of the backlash to Goodridge, the first case allowing gay marriage?
13 states amended their constitutions to define marriage as between a man and a woman.

Caused conservative christians to turn up at the polls. (electing president bush)
Thus it ensured relection of judicial appointments who will almost certainly delay the legal recognition of same sex marriage
Some states now offer engaged couples the option of either an ordinary civil (statutory) marriage or a covenant marriage. How does a covenant marriage differ from an ordinary civil (statutory) marriage?
The parties agree to counseling prior to the marriage, counseling prior to getting a divorce, and restricted grounds for divorce.
In a few states, parties who do not comply with a state's procedural regulations may be able to enter into a common law marriage. When parties want to end a common law marriage, they must do the following:
Obtain a divorce or annulment, as with any other valid marriage.
Identify the requirements for entering into a valid common law marriage:
Eligibility to marry the other party.


"Holding out" in the community as being married.


The present intent to take each other as man and wife.
Husband claims that his consent was obtained by fraud, based on wife's false statements concerning her wealth.

Consent valid or invalid?
The fact that someone lies about their wealth does not invalidate a marriage. The fraud claim must go to the very foundation of the marriage.
Most states prohibit same sex marriages, either through statutory or through constitutional provisions known as
DOMA's (Defense of Marriage Acts)
Prevents the conferral of federal spousal benefits to same sex couples
This was the first state to recognize same sex marriage.
Mass
This state was the first to allow civil unions.
Vermont
This designation is available to two people who are eligible to marry, but are not eligible to marry each other. It does not confer all the benefits of marriage and can be terminated without having to go through a divorce
Reciprocal Beneficiaries
This status is available only to same sex couples, confers all the state benefits of marriage, and must be dissolved by divorce.
Civil Union
Are children of an annulled marriage considered legitimate or illegitimate?
legitimate
This marriage is subject to collateral attack by third parties at any time
void (absolutely null)
This marriage can be challenged only by the parties to the marriage, usually only by the affected party, and cannot be raised after one party dies
voidable
identify those characteristics that apply to the putative spouse doctrine
The doctrine applies where the marriage is invalid, and the innocent spouse reasonably believed the marriage to be valid. The marriage is still invalid, but the court fashions an equitable remedy for the innocent spouse, conferring marriage-like benefits.

The doctrine applies to estop the culpable party from asserting the invalidity of the marriage again the innocent spouse.

The doctrine may be applied against third parties who object to paying "spousal" benefits.
How do marriage contracts differ from ordinary contracts?
the rights, duties, and obligations of the parties rested not upon their agreement, but upon the general common or statutory law of the state, which defined and prescribed those rights, duties, and obligations. Parties can neither modify nor change a marriage contract without state intervention and the contract binds them to a lifelong relationship. The state always remains a third party and sets the grounds for ending the relationship.

Maynard v. Hill
P married D when P was 83 and the marriage took place less than a month before P's death from lung cancer. At the time of the marriage, P was heavily medicated, undergoing chemotherapy, and hooked up to an oxygen tank during the wedding. Following P's death, P's estate brings an action contesting the marraige claiming it was void because P did not have capacity. How will the court rule?
A court will examine all of the facts surrounding the alleged marriage. Given the facts of this example, it is most likely that a court will find that P lacked the capacity to consent and the marriage is void.
When may a gaurdian consent to marraige?
When the applicant is incompentent or not of age to consent. (Knight v. Radomski)
Why does a state statute that bars marriage without parental consent between ages 14-18 not violate the fundamental right to marry?
Age restrictions are rational because of the state's concern with unstable marraiges and the inability of minors to make mature decisions. The age restriction does not bar a marraige between two applicants forever; rather it delays their marraige until they can marry without parental consent.

(Moe v. Dinkins)
Is a statute statute that allows 12 year old girls to marry but requires boys to be at least 14 unconstitutional?
Yes. The S. Ct. in Stanton v. Stanton held that there was no compelling state interest which justifies treating males and females of the same age differently for the purpose of determining their rights to a marriage license.
X is 16 and gets married out of state to her 28 year old teacher with the consent of her mother. As a result she is legally emancipated. Her father is furious because the in-state statute forbids marriage under the age of 17 in all circumstances. Father sought to overturn the marraige on the grounds that he did not recieve notice and was deprived of the right to a parent child relationship without a compelling reason.
Court is not likely to overturn the marriage. The out of state statute did not violate procedural due process rights. (kirkpatrict v. eith judicial dist. court.)

There is no constitutional requirement of notice to both parents. (Hodgson v. Minnesota)
What does "solemnizing a marriage" mean?
It provides public notice of the impending marriage and creates a permanent public record of the event.

The US S Ct held that common law marriages are valid, notwithstanding statutes that require ceremonial marriages to be solemnized by a minister or a magistrate, if no specific provision to the contrary exists. (meister v. moore)
What is the general rule regarding interstate recognition of marriage? how does that rule apply to same sex marriage?
A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.

(restatement of law of conflicts - most states follow this)

Thus 41 states enacted statutes specifying that they do indeed have such policies and so will refuse to recognize same sex marraiges no matter where contracted
Is it constitutional for states to refuse recognition of out of state marriages in the context of same sex marriage?
The full faith and credit doctrine clause of the constitution provides that full faith and credit be given in each state to the public Acts, Records, and Judicial Proceedings of every other state.

There is some doubt as to the Clause's application to marriage licenses. Some interpret the clause to only apply to valid judgments. Nevertheless, it has been assumed that the clause grants leeway to refuse enforcement on policy grounds.
What did congress pass in 1996 with regard to same sex marriage?
Federal DOMA - defense of marriage act.

(1) it provides that a same sex couple married under state law will not be recognized as married for any purposes of federal law (such as eligibility for welfare)

(2) no state shall be required to give effect to any proceeding or act of another state respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state.

Some scholars argue this exceeds Congress's power by effectively nullifying the full faith and credit obligation
Can a same sex couple who enters into a marriage or civil union in one state, dissolve it in another state that doesn't grant such right?
states that refuse to recognize same sex marriage also refuse to permit same sex divorce. Thus they are only able to obtain a divorce in a same sex marriage state.
Art. 3515. Determination of the applicable law; general and residual rule
Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.

That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
Art. 3519. Status of natural persons; general principle
The status of a natural person and the incidents and effects of that status are governed by the law of the state whose policies would be most seriously impaired if its law were not applied to the particular issue.

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the relationship of each state, at any pertinent time, to the dispute, the parties, and the person whose status is at issue; (2) the policies referred to in Article 3515; and (3) the policies of sustaining the validity of obligations voluntarily undertaken, of protecting children, minors, and others in need of protection, and of preserving family values and stability.
Art. 3520. Marriage
A. A marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife, shall be treated as a valid marriage unless to do so would violate a strong public policy of the state whose law is applicable to the particular issue under Article 3519.

B. A purported marriage between persons of the same sex violates a strong public policy of the state of Louisiana and such a marriage contracted in another state shall not be recognized in this state for any purpose, including the assertion of any right or claim as a result of the purported marriage.
Art. 3522. Effects and incidents of marriage and of divorce
Unless otherwise provided by the law of this state, the effects and incidents of marriage and of divorce with regard to an issue are governed by the law applicable to that issue under Article 3519.
Why doesn't a criminal ban on polygamy violate the first amendment?
The court in Reynolds v. U.S. entitled polygamists to believe in polygamy as a tenet of their faith but not to act on that belief if the conduct would otherwise be in violation of social duties or subversive good order.
Holm marries wife 1. He then participates in a religious ceremony with wife 2. Both women share a home with him. He is charged with bigamy. He argues that he did not commit bigamy because he did not purport to marry his last wife because the word "marry" only referes to legal marriage and nether party recognized the religious ceremony to entitle them to the legal benefits of marraige. result?
(Holm v. State)

Court held that "marry" as used in the bigamy statute included both legal and non-sanctioned marriages because such a definition is supported by the plain meaning of the term, the language of the statute, and the history and purpose of the bigamy statute.

First, the dictionary defines marriage by law or custom.

Second, cohabitation alone would constitute bigamy pursuant to the statute's terms.

Third, legislative history shows that the statute was designed both to prevent legally recognized marriages and attemps to duplicate those that are not legally recognized.
Holm argues that he should not be convicted of bigamy because Texas v. Lawrence concluded that "private consensual sexual behavior is protected by the Due Process Clause of the 14th amendment." How did the court respond?
The court in Lawrence excluded from protection conduct that causes injury to a person or abuse of an institution that the law protects. Holm Court finds that living with two women that you refer to as your wives implicates the public institution of marriage.
How does the supreme court compensate for the fact that it allows amish children to be homeschooled despite a state statute requiring a state-approved school, and a case where a drug user is punished despite his sincere religous motivations?
Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest so long as the laws are not meant to target religion specifically.
Why is polygamy banned but same-sex marriage acceptable in some states? What are the rationales and arguments in opposition?
One professor suggests: "almost everyone seems to accept that homosexuality occupies a deeper level of human conciousness than a polygamous impulse"
Thus, the argument is, the need for a gay to have a spouse is more compelling than the need for someone that already has a spouse to gain a second or third.

Others aruge that the desire to take on an additional spouse grows out of a deeply held belief central to their conceptions of themselves and their purposes in life.

others have aruged that polygamy undermines the companionate goal of marriage and contributes to gender inequality. Still some argue there are people in plural marriages that find religious satisfaction that greatly outweigh the disadvantages.
Most states prohibit all forms of incest. but what specific issue are they split about?
marriage of first cousins. about half prohibit it, some make exceptions for those that can't procreate, and some allow it without restriction
What was the original purpose behind the taboo of incest?
(Smith v. State)

Being primarily cultural in origin, the taboo is neither instinctual nor biological and has nothing to do with actual blood ties. The original purpose was to encourage members to go outside the family for economic and political alliances. It also prevented exploitation by older members in positions of authority and reduced friction among family members.
Does the right to privacy encompass the right to engage in incestous sexual activity? why or why not?
To conclude that there exists a fundamental right to engage in incest would be contradicting centuries of legal doctrine and practice. The incest taboo is deeply rooted in history and traditions. Although one has a right to privacy, that right does not warrant a sweeping conclusion that all intimate and personal decisions are protected.

In absence of a fundamental right, a rational basis test is used to examine the statute's constitutional validity. (A legislative enactment will be deemed valid if it bears a real and substantial relationship to the public's health, safety, morals, or general welfare and it is neither unreasonable nor arbitrary.) The prohibition is aimed at the protection of children and the family unit. Incest threatens public order and decency. Thus there is a rational basis for the ban.
Mr. G marries Mrs. G in Iran in 1976. He immigrated to Baton rouge in 1977. Ms. G joins him in BR in 2005 and files for divorce. He contravened claiming that because they were first cousins, their purported marriage was an absolute nullity under both Iranian and LA law. What is the result?
(Ghassemi v. Ghassemi - LA case)

Although LA law prohibits marrying collaterals within the fourth degree (aunt, uncle, niece, nephew, siblings, first cousins, etc.), it also recognizes that a marriage validly performed elsewhere is automatically invalid only if violative of strong public policy. For example, common law marriages are prohibited in LA but LA will recognize common law marraiges from other states. Similarly, marriage by procuration is an absolute nullity in LA but LA will recognize a foreign marriage by procuration.

Here, marriage to first cousins does not violate a strong public policy because before 1902, there was no bar to marriages between first cousins in LA. Furthermore, the LA legislature retroactively legalized all marriages between collaterals within the fourth degree that were contracted by citizens of this state before September 11, 1981. Because the couple married before 1981, it is irrelevant whether the marriage was valid under Iranian law. It became valid under LA at this time regardless of whether the marriage occured in LA or not.

In finding there was no violation of strong public policy court emphasizes that there is a distinction between first cousins and closely-related collaterals. While the former was commonly accepted, the latter is greatly condemned.
George is an 82 year old man with cancer. He marries Sally, a 42 year old woman, and dies a month later while in the hospital. At the time of his marriage, he was undergoing chemotherapy and hooked up to an oxygen tank. His heirs argue the marriage is null on three grounds: (1) under a New Jersey law that provides nullity for impotency (2) he lacked capacity, and (3) fraud. Sally files a motion to dismiss. Result?
1. Under NJ law, only a party can bring a claim for impotency.

2. Under the factual setting, an argument can be made that George lacked the capacity to consent at the time of marriage

3. The claim of fraud does not articulate facts that would support a finding that the fraud goes to the essentials of the marriage

(In Re Estate of Santolino)
I get drunk and marry dennis rodman. We remain married for 5 months. I try to annul based on lack of capacity at the time of marriage. result?
Statutes and case law recognize the possibilit that a party might lose mental capacity temporarily because of the influence of alcohol, drugs, or other incapacitating substances. However, a party who enters a marriage without capacity to consent but later regains mental competence can then validate the marriage by ratifying the decision to marry.
I decide to marry my childhood friend as a joke one night in Las Vegas - neither of us are intoxicated but we both agree to do it just for fun. What happens when we try to annul it the next day?
This is what happened to Britney Spears and Jason Alexander. A judge annulled their marraige and noted that there was no mutual assent or "meeting of the minds in entering into the marriage contract." Other judges are not so forgiving and will not annul a marriage on such grounds because "there was no fraud on the part of either party as against the other."
How is a party's consent to marriage ineffective if induced by fraud?
In most jurisdictions, the fraud must relate to the essence of the marriage. It is "material" if it would likely affect the conduct of a resaonable person concerning the transaction in question.

Other jurisdictions define essential more narrowly to exclude false representations of character, health, wealth, and external conditions as they do not justify annulment because it is against public policy to annul based on personal qualities.
Ms. Young's husband dies. As a stiplation in his will, she is to recieve benefits as his surviving spouse as long as she does not remarry.

She moves in with another man. Her mother and grandchildren feel uncomfortable with this. To please them she puts on a sham wedding but tells several witnesses including the reverend that it is not real.

There was no marriage license or benefits for tax purposes but the couple continued living together and she used her married name on the car title and insurance policy.

The city became aware of the "marriage" and ceased giving benefits. She reconvened.

Result?
(Shreveport v. Burling - LA case)

City argued equitable estoppel. This did not fly because an essential element is detrimental reliance by the party asserting the estoppel. Here there is none.

City also argues the evidence shows that they intended to be married. Free consent of the parties is essential to the marriage. Here, the evidence shows the service only took place to please her mother and grandchildren. They had no intentions otherwise of being married. They did not recieve benefits from having thier name jointly on the car title or policy.
What is the rule about the minimum age at marriage in most jurisdictions?
Most set the minimum age at 18 and allow 16-17 year olds to marry with parental or judicial consent. Those under 16 can marry in exceptional cases (generally where the girl is pregnant) with approval from both a parent and the court.
What is the rationale for requiring judicial consent to the marriage of young minors?
The state becomes less trusting of the parent's judgment as the age diminishes. For example, in NJ, parents who applied to have their 13 year old daughter marry her 19 year old boyfriend were charged and convicted of child abuse for acquiescing her in her sexual relationship.
Is it constitutional to distinguish between men and women in setting marriage age?
On equal protection grounds, it is unlawful to set different ages of a majority but not for minorities. The Second Circuit held that the right of minors to marry has not been viewed as a fundamental right deserving strickt scrutiny. The restrictions on marriages of minors served the interest in promoting the welfare of children by preventing unstable marriages among those lacking capacity to act in their own best interests.
Art. 1545. Necessary consent; parents; judicial authorization
Art. 1545. Necessary consent; parents; judicial authorization

A. An officiant may not perform a marriage ceremony in which a minor is a party unless the minor has the written consent to marry of either:

(1) Both of his parents.

(2) The tutor of his person.

(3) A person who has been awarded custody of the minor.

(4) The juvenile court as provided in Article 1547.

B. A minor under the age of sixteen must also obtain written authorization to marry from the judge of the court exercising juvenile jurisdiction in the parish in which the minor resides or the marriage ceremony is to be performed.
Art. 1547. Judicial authorization; compelling reasons
Upon application by the minor, the judge may authorize the marriage when there is a compelling reason why the marriage should take place.
Art. 1550. Penalty for officiant who performs a marriage ceremony in violation of this Chapter
Any officiant, other than a judge or justice of the peace, who knowingly performs a marriage ceremony at which one of the parties is a minor when the officiant does not have the necessary consent or authorization to marry required by Article 1545 shall be permanently deprived of his right to perform marriage ceremonies.
States generally prescribe two formal requirements to establish a valid ceremonial marriage:
(1) a marriage license
(2) solemnization
What are the requirements to obtain a marriage license in Minnesota?
(1) full names and sex of parties
(2) address
(3) age
(4) details regarding previous marraiges
(5) if a minor, name of parents
(6) if related, what relationship
(7) name of child both parties are parents of
(8) address of both parites after marriage license is obtained
(9) full names of parties after marriage license is obtained
What does the UMDA say about solemnization?
(a) marriage may be solemnized by a judge, public official, or in accordance with any mode of solemnization recognized by any religious demonination. marriage certificate form shall be sent to clerk

(b) third person can act as proxy if a party i sunable to be present at solemnization

(c) upon receipt of the marriage license, clerk shall register the marriage

(d) solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it if either party to the marriage believed him to be so qualified.
Fred and Edna have a Hindu marriage ceremony. The parties attempted several times to secure a marraige license but each time it was not properly secured. The Hindu priest was not licensed by the City or State. Are they married under the laws of New York? Other states?
Yes - The court in Persad v. Balram held that the parties' failure to obtain a marraige license does not render their marriage void. Likewise, the priest's failure to register with the city did not render their marriage void because in NY a marraige may be solemnized by a clergyman or magistrate.
Most states take this approach and defer to UMDA's qualifications of officiant.
Some states consider a marriage by an unauthorized officiant to be voidable and a few hold them to be void.
Bob was married by a minister from the Universal Life Church. Is the marraige valid?
Some jurisdictions refuse to credit such marriages because ULC allows any person to become an ordained minister upon payment of a nominal fee. Thus a church consisting of all ministers and in which all new converts can become instant ministers, in fact has no "minister" within the contemplation of marriage laws.
Louisiana definition of officiant
An officiant is a person authorized by law to perform marriage ceremonies.
In LA, 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 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.
In LA, judges and justices of the peace may perform marraige ceremonies within the following territorial limits:
(1) A justice of the supreme court within the state;

(2) A judge of a court of appeals within the circuit;

(3) A judge of a district court within the district;

(4) A judge of a family court, juvenile court, parish court, city court, or, in Orleans Parish, a municipal or traffic court, within the parish in which the court is situated; and

(5) A justice of the peace 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 which has no justice of the peace court.

B. A judge's authority to perform marriage ceremonies continues after he retires.

C. A retired justice of the peace who has served a total of eighteen years in that capacity shall retain his authority to perform marriage ceremonies within the territorial limits authorized in Subsection A of this Section provided he registers to perform such ceremonies as required by R.S. 9:204.

D. Notwithstanding the provisions of Paragraph (A)(5) of this Section, a justice of the peace within any of the parishes of DeSoto, Bossier, Caddo, Bienville, Webster, or Red River may perform marriage ceremonies within any of these parishes.

E.(1) A judge of a court of the United States whose official duty station includes a municipality having a population in excess of forty thousand but less than fifty thousand persons according to the latest decennial census or a municipality having a population in excess of two hundred and fifteen thousand but less than two hundred and thirty-five thousand persons according to the latest decennial census may perform marriage ceremonies in the municipality located within his official duty station. For purposes of this Subsection, "judge" and "official duty station" have the same meaning as provided in 28 U.S.C. 451 and 456, respectively. The authority granted by this Paragraph shall terminate on December 31, 2003.

(2) A judge of a court of the United States whose official duty station includes a municipality having a population in excess of four hundred and seventy thousand according to the latest decennial census may perform marriage ceremonies within his official duty station. The authority granted by this Paragraph shall only be effective from October 1, 2004, through October 31, 2004.

(3) A judge of a court of the United States whose official duty station includes the state capital may perform marriage ceremonies within his official duty station. The authority granted by this Paragraph shall only be effective from December 1, 2004, through December 31, 2004.

(4) A judge of a court of the United States whose official duty station includes a municipality having a population in excess of one hundred and five thousand but less than one hundred and fifteen thousand persons according to the latest decennial census may perform marriage ceremonies within his official duty station. The authority granted by this Paragraph shall only be effective from May 16, 2005 through June 4, 2005.

(5) A judge of a court of the United States whose official duty station includes a municipality having a population in excess of four hundred seventy thousand according to the latest decennial census may perform marriage ceremonies within his official duty station. The authority granted by this Paragraph shall only be effective from October 1, 2007, through October 31, 2007.

(6) A judge of a district court of the United States whose official duty station includes a municipality having a population in excess of four hundred seventy thousand according to the latest decennial census may perform marriage ceremonies within his official duty station. The authority granted by this Paragraph shall only be effective from November 1, 2008, through November 30, 2008.

(7) A judge of a court of the United States whose official duty station includes Orleans Parish may perform marriage ceremonies within Orleans Parish. The authority granted by this Paragraph shall only be effective from October 1, 2009, through October 31, 2009.

(8) Any United States magistrate judge of the Western District, Eastern District, or Middle District may perform marriage ceremonies within this state. The authority granted by this Paragraph shall be effective only from October 1, 2010, through October 31, 2010.

(9) A judge of a court of the United States whose official duty station includes a parish having a population in excess of two hundred fifty thousand but less than two hundred seventy-five thousand persons according to the latest decennial census may perform marriage ceremonies within such parish. The authority granted by this Paragraph shall be effective only from July 1, 2010, through July 31, 2010.
In LA, how may an officiant other than a judge or justice of the peace perform a marraige?
An officiant, other than a judge or justice of the peace, may perform marriage ceremonies only after he registers to do so by depositing with the clerk of court of the parish in which he will principally perform marriage ceremonies, or, in the case of Orleans Parish, with the office of the state registrar of vital records, an affidavit stating his lawful name, denomination, and address.
In LA, is an officiant required to obtain a marriage license?
An officiant may not perform a marriage ceremony until he has received a license authorizing him to perform that marriage ceremony.
In LA, A license authorizing an officiant to perform a marriage ceremony must be issued by:
(1) The state registrar of vital records, or a judge of the city court, in the Parish of Orleans;

(2) The clerk of court, in any other parish; or

(3) A district judge, if the clerk of court is a party to the marriage.
In LA, An application for a marriage license must include:
(1) The date and hour of the application.

(2) The full name, residence, race, and age of each party.

(3) The names of the parents of each party.

(4) The number of former marriages of each party, and whether divorced or not.

(5) The relationship of each party to the other.

(6) Each party's social security number or a statement by the applicable party that no social security number has been issued to him. The state registrar of vital records and the officiant shall maintain confidentiality of social security numbers. Notwithstanding the provisions of R.S. 44:1 et seq. the clerk of court shall maintain the confidentiality of a party's social security number in an application for a marriage license provided a request is made to the clerk in writing by the party at the time of application.

B. The applicant must verify the information to the issuing official by affidavit.

C. In cases wherein the parties intend to contract a covenant marriage, the application for a marriage license must also include the following statement completed by at least one of the two parties:

"We, [name of intended husband] and [name of intended wife], do hereby declare our intent to contract a Covenant Marriage and, accordingly, have executed a declaration of intent attached hereto."

D. Upon request, the state registrar shall provide the information required in this Section to the agency charged with implementing a program of family support in accordance with R.S. 46:236.1.1 et seq., which shall maintain the confidentiality of the information.

E. The failure of the application to contain the signatures of both parties shall not affect the validity of the covenant marriage if the declaration of intent and accompanying affidavit have been signed by the parties.
How long is a marriage license valid after the officiant obtains it (in LA)
A marriage license is valid for thirty days from the date of issuance. No officiant shall perform a marriage after the license has expired.
Information on matrimonial regime and covenant marriage laws (LA)
A. On receiving an application for a license to marry, the license-issuing officer shall deliver to each prospective spouse, either in person or by registered mail, a printed summary of the then current matrimonial regime laws of this state and the covenant marriage law of this state. These summaries shall be prepared by the attorney general of this state.

B. The summary of matrimonial regime law shall emphasize the possibility of contracting expressly a regime of one's choosing before marriage, that spouses who have not entered into a matrimonial agreement before marriage become subject to the legal regime by operation of law, and the possibility of contracting after marriage to modify the matrimonial regime.

C. The summary of covenant marriage law shall emphasize that premarital counseling is mandatory at which time the necessary documents consisting of the declaration of intent and the affidavit and attestation of the counselor shall be executed, that the couple agrees to take all reasonable steps to preserve their marriage if marital difficulties arise, including marriage counseling, that divorce in a covenant marriage is restricted to fault by a spouse and living separate and apart for two years as provided in R.S. 9:307, and that divorce under the general marriage law of this state differs significantly.
what is the "waiting period" in LA?
An officiant may not perform a marriage ceremony until seventy-two hours have elapsed since the issuance of the marriage license.
Can you obtain a waiver of delay in LA for the waiting period?
A. A judge or justice of the peace authorized to perform the marriage may waive the seventy-two-hour delay upon application of the parties giving serious and meritorious reasons. His certificate authorizing the immediate performance of the ceremony must be attached to the marriage license.

B. Notwithstanding the provisions of R.S. 9:241, an officiant authorized to perform marriage ceremonies in the parish of Orleans may waive the seventy-two-hour delay for nonresident parties upon application of the parties giving serious and meritorious reasons. His certificate authorizing the immediate performance of the ceremony shall be attached to the marriage license. For purposes of this Subsection, "nonresident" shall mean a person domiciled or residing in a jurisdiction other than the state of Louisiana.
What happens if an officient issues a marriage license before the delay period expires in LA?
An officiant who violates R.S. 9:241, other than a judge, justice of the peace or an officiant authorized to perform marriage ceremonies in the parish of Orleans and who is authorized to waive the seventy-two-hour delay pursuant to the provisions of R.S. 9:242(B), may have his authority to perform marriage ceremonies revoked by the state registrar of vital records. The revocation may not exceed one year.
Are witnesses to a marriage ceremony required in LA?
The marriage ceremony shall be performed in the presence of two competent witnesses of full age.
What is the Marriage certificate in LA?
A.(1) The marriage certificate is the record prepared for every marriage on a form approved by the state registrar of vital records. It shall contain the information prescribed. On the face of the certificate shall appear the certification to the fact of marriage including, if applicable, a designation that the parties entered into a covenant marriage, signed by the parties to the marriage and by the witnesses, and the signature and title of the officiant.

(2) The marriage certificate shall show the place, time, and date of the performance of the ceremony.

B. Every officiant of a marriage ceremony performed in this state shall sign a certificate of marriage in triplicate.
Penalty for failure to file or complete marriage certificate
(LA)
Any person authorized to perform marriages in this state who fails to complete the forms provided by the Department of Children and Family Services, and specifically fails to fill in the date and place the ceremony was performed, or neglects or fails to file the two executed copies with the clerk of court in the parish where the license was issued or, if in Orleans Parish, with the state office of vital records, within ten days after the date of the marriage as provided by law, shall be fined not less than twenty dollars for the first offense, fifty dollars for the second offense, and one hundred dollars for a third offense, and the offender shall be prohibited thereafter from officiating at any marriage in this state.
Is a marriage null in LA if not preceded by a license or not evidenced by an act signed by a certain number of witnesses?
Not necessarily. The laws relating to form and ceremony are regarded as directory alone to those who are authorized to celebrate marriages and are intended to guard against hasty and inconsiderate marriage in defiance of parental authority. But like all other contracts, it may be proved with other forms of evidence, for example cohabitation.

Succession of St. Ange

(Marriage is regarded as a civil contract, highly favored, and depends on the free consent of the parties capable by law of contracting)
What are the requirements for a "common-law marriage" and are they still recognized today?
Even without solemnization or a license, parties could contract a valid common-law marriage simply by (1) living together (2) holding themselves out to be married and (3) the mutual intention to be married.

Today only 10 states permit common law marriage and two recognize them under limited circumstances.

Conflicts of laws rules provide for upholding a common-law marriage as valid throughout the US provided it was sucessfully created in a state that recognized the institution when the marriage was formed. Additionally, common-law marriages created before the statutory abolition remain valid.
Maurice and Anne are good friends. Anne separates from her husband in december and moves in with Maurice the same month. That month, Maurice gives her a wedding ring and a wedding band. Anne legally divorces her husband in February of the following year. Maurice and Anne continue to live together until their death. They engrave a grandfather clock with their initials and Anne uses his last name. They tell some people they are married and others that they are merely "significant others."

Have they met the requirements for a common-law marriage?
In Re Estate of Hunsaker

(1) were they competent to enter into a marriage? As a matter of law, Anne was not competent before her divorce was finalized, but she carried the burden of this element after the divorce.

(2) Did the couple assume a marital relationship by mutual consent and agreement? Court found the ring and the clock to be sufficient evidence that they agreed to a marital relationship.

(3) Did the couple prove that they confirmed their marriage by cohabitation and public repute? There is no dispute they lived together for many years. Here, even though the couple were not married for legal purposes (last name was not changed, she wasnt on his insurance policy, she filed single on her tax returns), the couple held themselves out to be married to the public and had a reputation as such.

***The party asserting existence of a common law marriage must prove that the three elements of common law marriage all existed at one time
Could a person intend to be married to someone even though they believe that a formal marriage ceremony is the only thing that could legally bind the parties?
Hunsaker appears to say yes. Other case law holds that "a party need not understand every nuance of marriage or divorce law but he must at least know that his actions will render him married as that word is commonly understood. if a party does not comprehend that his intentions and actions will bind him in a legally binding marital relationship, then he lacks intent to be married."
Suppose parties kept their common law marriage private but presented powerful evidence of cohabitation and a written contract. Would they meet the requirements of a common law marriage?
The absence of "holding out" is often persuasive evidence that the parties never actually regarded one another as spouses. Hunsaker and other decisions suggest no common-law marriage could be found.
What LA case held that LA will recognize common law marriages from other states?
Fritsche v. Vermilion Parish Hospital Service
Adam marries Betty. Before Adam divorces Betty, he has a marriage ceremony with Cathy. Adam and Cathy continue to live together and hold themselves out as married although neither had a marriage license. Then Adam marries Deb. Cathy contends her relationship with Adam was a valid common law marriage under the laws of mississippi which should be recognized in LA, and therefore the marriage to deb is a nullity. Result?
The majority of states recognize the transformation of the illegal marriage into a valid common-law marriage by the mere continuance of the relationship between the parties after the removal of the impediment whether the void marriage was contracted in good faith or not.

LA found a bigamous marriage contracted in bad faith in another state may not produce civil effects under LA law because it is against public policy. No civil effects can flow from a marriage which is null unless the claimant was in good faith (LA CC 96). Thus the marriage was null.

Brinson v. Brinson
What is the putative spouse doctrine?
It provides equitable remedy where an innocent spouse has relied in good faith on a mistaken belief in the validity of the marriage. The putative spouse doctrine does not validate a marriage. The attempted marriage remains void, but the doctrine provides for relief that may closely resemble the relief the party would have received if the attempted marriage had ended in divorce
Art. 151. Proceeding for declaration of nullity of a marriage - interim
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.
Proceeding for declaration of nullity of a marriage; final incidental relief
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 spouse.

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.

Nevertheless, 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.
According to Williams v. Williams, what two elements make up the putative spouse doctrine?
(1) a proper marriage ceremony was performed, and (2) one or both of the parties had a good-faith belief that there was no impediment to the marriage and the marriage was valid and proper.

"good faith" has been defined as an honest and reasonable belief that the marriage was valid at the time of the ceremony. Good faith is presumed. However, when a person receives reliable information that an impediment exists, the individual cannot ignore the information but instead has a duty to investigate further. Persons cannot act blindly or without reasonable precaution. Once a spouse learns of the impediment, the putative marriage ends.
Richard marries Marcie. Marcie thinks she is divorced from her previous husband because he had told her they were divorced. Richard and Marcie live together for 27 years until Richard discovers that Marcie was still legally married. He seeks an annulment. Marcie seeks property division and spousal support. Result in Nevada?
The putative spouse doctrine did not traditionally provide for an award of spousal support. Extensions of the doctrine have come through statute or findings of fraud and bad faith. As neither is present in this case, the court declined to permit an award of spousal support when both parties act in good faith. However, the court did hold that common-law community property principles apply by analogy to the division of property acquired during a putative marriage.

Williams v. Williams
Do most states follow the result in Williams v. Williams that the putative spouse doctrine does not provide for spousal support?
No. many other states allow putative spouses to recover alimony or spousal support as well as an equitable distribution of community or marital property. See UMDA 209 - "A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited or declared invalid." Williams reasoned that with no valid marriage, there could be no basis for imposing an ongoing obligation of support but this doesn't make sense because it recognized division of property.
In Cortes v. Fleming, what did the LA court declare were the civil effects of a putative marriage (six things)
(1) legitimacy of children

(2) right of putative wife to claim workmen's compensation from husband's employer

(3) right of the putative wife to her proportionate share of community property

(4) right of putative wife to inherit in the succession of husband

(5) right of putative wife to be considered as a widow in husbands insurance policy

(6) right of putative wife to marital portion which she is otherwise qualified. (including alimony)
Do all states follow the requirements of the putative spouse doctrine as outlined in Williams v. Williams? (ceremonial requirement)
no - some states that still recognize common-law marriages will recognize the putative spouse doctrine with a defective common law marriage

In re Estate of Marson
Josephine moves to the United States from Russia and speaks little english. She meets a gentlemen when she is 17 and he convinces her to marry him. They travel to the court and submit false affidavits that she is 18 and receive a marriage license. Josephine knew nothing of the laws of this country and could not read english and thought they did everything necessary to create a valid marriage. The gentleman brings her to a hotel where they conceive a child. He later tells her they are not actually married. The child brings an action for legitimacy in LA. result?
Succession of marinoni

Good faith results from an error of law as well as from an error of fact. Good faith referred to as constituting a putative marriage means an honest and reasoable belief that the marriage was valid and not that the marriage was actually and legally valid.

Court held cohabitation as man and wife furnished presumtive evidence of a preceding marriage and is convincing proof that the circumstances induced an honest belief in the wife that she was legally married. Her good faith must protect her innocent offspring.
Mary and Gustave get married. Gustave was under the impression that Mary and her former husband had been legally divorced because he saw the divorce papers. He later discovered the papers were not valid. He sought to annul the marriage. Mary sought putative spouse status and argued she was in good faith because she paid $350.00 to obtain the divorce papers with her former husband and she didn't know it was a scam. Result in LA?
Normally good faith is presumed unless a spouse has been previously married and it turns out they are not divorced or widowed. Such a spouse must bear the burden of proving his or her good faith in contracting the allegedly putative marriage.

Here the court found it unreasonable to suppose that anyone would willingly pay $350.00 for a divorce knowing that it would be without legal effect. Accordingly, they found she was in good faith.

Mara v. Mara
Art. 98. Mutual duties of married persons
Married persons owe each other fidelity, support, and assistance.
Art. 99. Family authority
Spouses mutually assume the moral and material direction of the family, exercise parental authority, and assume the moral and material obligations resulting therefrom.
Art. 100. Surname of married persons
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.
Presumption of paternity of husband
The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage.
§291. Suits between spouses
Spouses may not sue each other except for causes of action pertaining to contracts or arising out of the provisions of Book III, Title VI of the Civil Code; for restitution of separate property; for divorce or declaration of nullity of the marriage; and for causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart.
What is the definition of "fidelity" under LA law?
Favrot v. Barnes

Marriage obliges the spouses to fulfill the reasonable and normal sex desires of each other. The law does not authorize contractual modification of the conjugal association except in relation to property.

Thus not only do you have to be faithful by not sleeping with other people, but you have the affirmative duty to fulfill the sexual desires of your spouse.
Lydia married her husband Charles 33 years ago. At the time of the marriage, she knew he was very frugal with his money and only gave her money for groceries or medical bills. She sold eggs from chickens to buy things she wanted like clothing and furniture. She is now too old to continue supporting herself in this manner and brings suit to recover maintenance from her husband who has a considerable amount of money but refuses to spend it on her. She complains that the home has no indoor bathroom and the kitchen is not modern as it has no kitchen sink. Can she recover?
Mcguire v. Mcguire

It is the duty of the husband to provide his family with support and means of living - the style of support, requisite lodging, food, clothing, etc to be such as fit his means, position, and station in life, and for this purpose the wife has generalyl the right to use his credit for the purchase of necessaries. If a wife is abandoned by her husband without means of support, a bill in equity will lie to compel the husband to support the wife without asking for a decree of divorce. The wife does not necessarily forfeit her right of action for maintenance merely because she lives under the same roof with her husband (for example where the husband's conduct is such that it render's the wife's life intolerable). However, in this case the marital relation continued for more than 33 years and the wife has been supported in the same manner without complaint. The parties have not been separated at any time. To maintain an action as the one in this case, the court held the parties must be separated. The living standards of a family are a matter of concern to the household and not for the courts to determine.
What is the rationale for not intervening into the obligation of support during a marriage?
The expectation is that each married couple will work out the definition of support in their own marriage. There is a strong belief that judicial intervention into disputes of such nature would violate prinicples of marital autonomy and hopelessly entangle the courts in the day-to-day marital relationship. A divorce filing shatters this expectation and raises the prospect of judicial scrutiny of the family's finances.
Why was article 120 regarding spousal support repealed
120 declared that a wife was bound to live with her husband and follow him wherever he chooses to reside and that the husband is obliged to furnish her with whatever is required for the convenience of life. Articles following this one prohibited wife from appearing in court without authority of her husband, or borrowing money or contracting debts without the husband's consent. U.S. supreme court found such provisions abhorrent to equal protection principles.
In LA, can a spouse bring suit for spousal support where they have separated but not divorced? If so, how much?
Chi v. Pang

Husband attacked wife with a butcher knife and the two separated.
In this case the husband argued the award should be one for only necessitous circumstances. The court held that the economic status-quo standard of living which exists is the only logical conclusion and that it would be nonsensical to conclude that a spouse would have to establish necessitous circumstances before the spouse with the means would have to provide.
§74. Criminal neglect of family
A.(1) Criminal neglect of family is the desertion or intentional nonsupport:

(a) By a spouse of his or her spouse who is in destitute or necessitous circumstances; or

(b) By either parent of his minor child who is in necessitous circumstances, there being a duty established by this Section for either parent to support his child.

(2) Each parent shall have this duty without regard to the reasons and irrespective of the causes of his living separate from the other parent. The duty established by this Section shall apply retrospectively to all children born prior to the effective date of this Section.

(3) For purposes of this Subsection, the factors considered in determining whether "necessitous circumstances" exist are food, shelter, clothing, health, and with regard to minor children only, adequate education, including but not limited to public, private, or home schooling, and comfort.

B.(1) Whenever a husband has left his wife or a wife has left her husband in destitute or necessitous circumstances and has not provided means of support within thirty days thereafter, his or her failure to so provide shall be only presumptive evidence for the purpose of determining the substantive elements of this offense that at the time of leaving he or she intended desertion and nonsupport. The receipt of assistance from the Family Independence Temporary Assistance Program (FITAP) shall constitute only presumptive evidence of necessitous circumstances for purposes of proving the substantive elements of this offense. Physical incapacity which prevents a person from seeking any type of employment constitutes a defense to the charge of criminal neglect of family.

(2) Whenever a parent has left his minor child in necessitous circumstances and has not provided means of support within thirty days thereafter, his failure to so provide shall be only presumptive evidence for the purpose of determining the substantive elements of this offense that at the time of leaving the parent intended desertion and nonsupport. The receipt of assistance from the Family Independence Temporary Assistance Program (FITAP) shall constitute only presumptive evidence of necessitous circumstances for the purpose of proving the substantive elements of this offense. Physical incapacity which prevents a person from seeking any type of employment constitutes a defense to the charge of criminal neglect of family.

C. Laws attaching a privilege against the disclosure of communications between husband and wife are inapplicable to proceedings under this Section. Husband and wife are competent witnesses to testify to any relevant matter.

D.(1) Whoever commits the offense of criminal neglect of family shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both, and may be placed on probation pursuant to R.S. 15:305.

(2) If a fine is imposed, the court shall direct it to be paid in whole or in part to the spouse or to the tutor or custodian of the child, to the court approved fiduciary of the spouse or child, or to the Louisiana Department of Children and Family Services in a FITAP or Family Independence Temporary Assistance Program case or in a non-FITAP or Family Independence Temporary Assistance Program case in which the said department is rendering services, whichever is applicable; hereinafter, said payee shall be referred to as the "applicable payee." In addition, the court may issue a support order, after considering the circumstances and financial ability of the defendant, directing the defendant to pay a certain sum at such periods as the court may direct. This support shall be ordered payable to the applicable payee. The amount of support as set by the court may be increased or decreased by the court as the circumstances may require.

(3) The court may also require the defendant to enter into a recognizance, with or without surety, in order that the defendant shall make his or her personal appearance in court whenever required to do so and shall further comply with the terms of the order or of any subsequent modification thereof.

E. For the purposes of this Section, "spouse" shall mean a husband or wife.
What is the necessaries doctrine and why did it fail?
To compensate for the wife's legal disabilities during marriage, the necessaries doctrine allowed her to buy necessities from a third party using her husbands credit. It failed because:

(1) the definition of what constituted a "necessary" depended on the family's social position

(2) the wife had to be cohabiting with her spouse when the sale occurred and the creditor had to rely on the husband's credit - it was difficult to know before going to court whether or not the doctrine would apply

(3) merchant could collect from husband only if he brought suit which was costly
Is the necessaries doctrine completely abolished?
No, some states still take on the doctrine in some form. For example, Nevada provides that if a husband neglects to make adequate provision for the support of his wife, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from the husband.

Most states retain the policy but make it gender neutral.
What level of child support must parents provide for their children when the family is intact?
The law assuemes that parents will provide for their children as well as they can. Parents must provide at least a minimal level of child support sufficient to defeat a child neglect petition in the juvenile court, even if this minimal level is lower than what the child support guidelines would require based on parental income and the child's needs. This "tolerated level" stems from recognition that the remedies available for neglect - removal of the child from the home - would not help the child.
Art. 2372. Necessaries.
A spouse is solidarily liable with the other spouse who incurs an obligation for necessaries for himself or the family.
What happens to the spousal distribution of property upon the death of a spouse in a community property state? in a common-law state?
In community property states, the surviving spouse is entitled to one-half of the property accumulated during the marriage.

In common law states, the surviving spouse may be entirely left out of the will. However almost all non-community states provide protection to the spouse through a statutory elective share which allows a surviving spouse to elect to receice a portion, depending on the state, of the estate of the deceased spouse. This is full ownership (not like a usufruct).
What is a criticism of the elective share awarded to spouses in non-community property states?
The portion might be significantly less than the amount necessary to satisfy the spouse's needs in a smaller estate and considerably in excess of those needs in a larger estate.
How are children supported upon the death of a parent?
All states except LA allow a parent to disinherit his or her child for any reason no matter how much the child needs continued support. An exception is where there is an underlying child support order before the death.

In LA, only "just cause" will permit disinheritance of a child. For example, if the child attempted to murder the parent, refused to contact the parent for two years, married while a minor without parental consent, or was convicted of a crime carrying life imprisonment or death.
§293. Law applicable to spouses in covenant marriage
Spouses in a covenant marriage are subject to all of the laws governing married couples generally and to the special rules governing covenant marriage.
§294. Covenant spouses' love, respect, and community
Spouses owe each other love and respect and they commit to a community of living. Each spouse should attend to the satisfaction of the other's needs.
§295. Covenant spouses' obligation to live together
Spouses are bound to live together, unless there is good cause otherwise. The spouses determine the family residence by mutual consent, according to their requirements and those of the family.
§296. Right and duty of covenant spouses to manage household
The management of the household shall be the right and the duty of both spouses.
§297. Decisionmaking in interest of family
Spouses by mutual consent after collaboration shall make decisions relating to family life in the best interest of the family.
§298. Obligations to children of the marriage
The spouses are bound to maintain, to teach, and to educate their children born of the marriage in accordance with their capacities, natural inclinations, and aspirations, and shall prepare them for their future.
What remedies do cohabitants (not married) have upon separation?
Cohabitants may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property.

Although a contract between nonmarital partners is unenforceable to the extent that it explicitly rests upon the immoral and illcit consideration of sexual services, any severable portion of the contract supported by independent consideration will still be enforced.

In absence of an express agreement, courts will look to the conduct of the parties to determine whether an implied contract has been formed. A nonmarital partner may recoer in quantum meruit for the reasonable value of the household services rendered less the reasonable value of the support received if he/she can show that he/she rendered servies with the expectation of monetary reward.

(in this case a woman gave up her lucrative singing career to become a homemaker and cook for her nonmarital partner)

marvin v. marvin
What is LA's rule on compensation for unmarried cohabitants?
LA law defines a woman cohabitant as a concubine and a man as a paramour. LA holds that concubines and paramours have no rights in each other's property. The state reasons that such relationships erode the cornerstone of society: the family. In Schwegmann, the status of concubine was completely voluntary and desired for the parties never married, wanted to marry, or believed they were married. Concubines have no implied contract or equitable liens that afford them any rights in the property of their paramours.

Because the domestic services were interwoven with the sexual relationship, the court refused to grant her compensation for them.

However, she also performed business services. Court held that such claims will be recognized and enforced with respect to joint or mutual commercial ventures provided such enterprises arose independently of the illicit relationship.
The New Jersey Palimony Action
An unmarried person has a well settled right to enforce his or her cohabitant's promise to support her/him for life, The action is in quasi-contract. Plaintiff must present competent evidence showing:

(1) cohabitation

(2) in a marriage type relationship

(3) promise of support for life during cohabitation

(4) promise was made in exchange for valid consideration

(unless inseparably founded on sexual services)
In NJ, a man who was married promised to divorce his wife and marry the plaintiff and have a child with her. He never fulfilled his promise and she brought a palimony complaint asserting breach of promise to fulfill her for life. The two never cohabitated. Result?
NJ court held cohabitation is not an essential element for a cause of action for palimony, but a marriage type relationship is. Among factors to consider are cohabitation, time spent together, intention to comingle property, holding themselves out to the public as husband and wife, or other behavior that is more than a typical dating relationship. The judge must consider the entirety of the relationship.
What is Washington's "Meretricious Relationship" status?
A meretricious relationship is a stable, marital-like relationship in which both parties cohabit knowing that a lawful marraige does not exist. Courts look at 5 factors: (1) continuous cohabitation; (2) duration of relationship; (3) purpose of relationship; (4) pooling of resources; (5) intent of parties

In Fleming v. Spencer, the court found a meretricious relationship. The husband argued that the relationship cannot commence when one party is married to another person. Supreme Court made it clear that equitable claims based on a meretricious relationship do not depend on whether the parties can legally marry each other.

Thus, any property acquired during the period husband was married while also in the meretricious relationship will be presumed common property and title alone does not rebut the presumption.
What are the various forms of same-sex couple partnerships and what is the rationale for providing them only to same-sex couples?
Hawaii allows same sex couples to become "reciprocal beneficiaries" which provides benefits for health insurance, inheritance rights, and retirement benefits.

California, Maine, DC, Oregon and Washington recognize domestic partnership registries which provide various benefits as well.

Vermont, Connecticut, NJ, and NH offer civil unions.

The refusal to extend domestic partner benefits to heterosexual couples is justified on the basis of policy favoring marriage which differs from the reasons for wanting to extend benefits to homosexual couples
Art. 101. Termination of marriage
Marriage terminates upon:

The death of either spouse.

Divorce.

A judicial declaration of its nullity, when the marriage is relatively null.

The issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law.
What is "no-fault based divorce"
Instead of seeking to victimize one spouse by the other, no-fault looks simply to the fact of marital breakdown. If the court finds the marriage has suffered an irretrievable breakdown, that the couple have stopped cohabitating for a statutorily set time, or that the spouses have irreconciable differences, it is empowered to dissolve the marriage.

This type of divorce emerged in the late 60s/early 70s and most states simply added the option of no-fault divorce while retaining the fault-based system. Only a handful of states are truly "no fault" divorce states.

No fault dispense with the need to prove fault but requires the spouses to live separately for a specified period before a divorce may be granted. Some states require residency for a specified period.
Why would a spouse choose to seek a fault-based divorce when no-fault divorce is available?
fault-based is sometimes faster. fault based may also have implications in some states with respect to property and alimony awards. third, some spouses want a form of public accountability of their victimization
What is adultery and how is it proven?
Adultery (a ground for fault based divorce) is all forms of sexual contact between persons of any gender - not just intercourse. Because of difficulty to provide direct evidence, divorce law has long permitted proof of adultery to be made through circumstantial evidence. However, many jurisdictions require that the evidence effectively exclude any innocent explanation.
A husband files for divorce on the basis that his wife has committed adultery. He presents testimony from a witness stating that she saw his wife's and another man's cars parked together throughout the night at his apartment. They also took off work to spend the day together. She witnessed him come outside wearing a robe. The man admitted to kissing and hugging her but stated it was because he loved her as a friend. Should the court find this evidence sufficient?
In Spence v. Spence the court found that the circumstantial evidence was not inconsistent with a reasonable theory of innocence - friendship. The proponent retains the burden of presenting satisfactory evidence which is sufficient to lead the trier of fact to a conclusion of guilty. (Court required stronger circumstantial evidence)
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 the requisite period of time, in accordance with Article 103.1, 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.
Art. 103.1. Judgment of divorce; time periods
The requisite periods of time, in accordance with Articles 102 and 103 shall be as follows:

(1) One hundred eighty days:

(a) Where there are no minor children of the marriage; or

(b) Upon a finding by the court, pursuant to a rule to show cause, that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses; or

(c) If, after a contradictory hearing or consent decree, a protective order or an injunction has been issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.

(2) Three hundred sixty-five days when there are minor children of the marriage at the time the rule to show cause is filed in accordance with Article 102 or a petition is filed in accordance with Article 103.
A woman alleges that she did not commit adultery under LA law because she only had oral sex. Is she correct?
No. Menge v. Menge

Court reasons that they have recognized other forms of sexual activity other than vaginal penetration by a penis in cases of homosexual activity. They also infer that sexual intercourse has occurred where "opportunity knocks." In other words, the oral sex is circumstantial evidence that "human passion kindled in such a manner would ultimately be consummated"
What is considered "physical cruelty" as a basis for divorce?
Actual violence or threats inducing the reasonable apprehension of violence of a degree attended with danger to life or health
A wife files for divorce on the basis of cruelty. She has a protective order against her husband from a domestic violence event and testified that the husband taunted her with questions of what she would do when the order expired. Is this sufficient for a fault based divorce?
Yes, according to DAS v. DAS.

Ordinarily a single act of violence slight in character does not constitute cruelty of treatment as a cause of divorce. But it is now accepted in many states that a single act may be sufficient to constitute basis for divorce on the ground of cruelty if it indicates an intention to do serious harm or is of such a character as to threaten serious danger in the future. Cruelty has grown to encompass mental as well as physical abuse if the misconduct renders it mentally impracticable for her to properly discharge the marital duties. Marital neglect, rudeness, or profane language are not sufficient.

Here, the very existence of a protective order demonstrates that the husband's conduct far exceeded mere harshness or rudeness. Court do not hesitate to grant relief especially where the facts indicate the violence may be repeated.
What must a spouse show to prove mental cruelty as a basis for divorce?
a showing of habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse sufficient to render the condition of the other intolerable
What is desertion?
A basis for divorce, typically defined as the willful abandonment of cohabitation for a sufficient period of time, usually lasting at least one year. The other requisite element is the intent by the offending spouse to abandon.

In "constructive desertion," a party who has walked out on the marriage may be permitted to show that the spouse drove him/her to it by making life within the home reasonably intolerable. This can be shown by patterns of abusive conduct or demands for abnormal sexual relations.
Art. 104. Reconciliation
The cause of action for divorce is extinguished by the reconciliation of the parties.
What is reconciliation?
reconciliation is a matter of mutual intent to be judicially determined in light of the totality of the circumstances of each particular case; proof of isolated acts of sexual intercourse between the parties is not conclusive of intent to reconcile, but is merely one of the factors to be considered in determining mutual consent and agreement to reconcile

Jordan v. Jordan
Husband and wife separate. Husband learns that he will have to pay alimony if they divorce. That same evening he initiates a discussion of reconciliation with his wife. Wife learns of adulterous relationship and agrees to reconciliation on the condition that the husband end his adultery and seek counseling. He fails to do so. Was there a reconciliation under LA law?
No. Because husband failed to meet the two conditions and did not have the requisite intent to reconcile when he returned to the matrimonial home, there was no reconciliation.

Tablada v. Tablada
What is recrimination?
an affirmative defense predicated on the claim that both spouses were guilty of off-setting faults.

When both spouses have grounds for divorce, neither may have a decree. This results in a strange policy of keeping two wrongdoers locked together in the unbreakable bonds of matrimony.

Most courts disfavor this defense.
What is provocation?
A defense available to a respondent who claims his own faulty conduct was reasonably provoked by the petitioner's. Conduct must be bad enough to make the respondent's faulty reaction proportionate to the provocation
What is connivance?
It bars relief if the party seeking the divorce is found to have participated in manufacturing the fault upon which divorce is sought. (For example spouse encourages a threesome or affair with another person)
what is condonation?
Rests on the idea that the fault ground raised in the divorce has already been forgiven by the respondent and therefore cannot be invoked to dissolve the marriage. The rationale is that if the victim of the wrong had already generously wiped the slate clean, the victim should not be permitted to go back on her word. This can be express or implied by resuming marital relations.
A spouse asserts the defense of condonation. The couple continued to live together for several years after the affair and there is no evidence that this living arrangement was continued out of necessity. They also continued sexual relations. Should the defense be granted?
Yes. courts look to a combination of factors such as the expression of forgiveness, the fact of cohabitation, the length of time the parties cohabited after the offense, whether cohabitation was a result of necessity, and whether the parties continued sexual relations

In RE marriage of hightower
What is collusion?
Exists when the spouses conspire to manufacture grounds for divorce. Collusion is a bar to fault based divorce which the court may raise on on its own.

Judges did not traditionally police collusion before no-fault divorce was available. Nevertheless the bar remains and may sometimes bar relief.
How may insanity be a defense to divorce?
An individual who demonstrated that a physical attack on a spouse was the result of paranoid schizophrenia may have a defense to cruelty. This defense has been less successful in excusing other faults such as adultery. Some states do not recognize the insanity defense at all.
Mrs. Seltzer committed adultery and claims it should be excused due to mental capacity. Trial court found she was in fact mentally ill. She also testified that she committed the affair because her husband would not return to the home and she was lonely. The affair was not an isolated incident but ongoing.

Does she have a defense?
No. Seltzer v. Seltzer

Court does not find a link between the illness and her affair. She knew she was married at the time of the affair and she knew she was having an affair. Court also considers the fact that the affair was ongoing and that her mental condition had improved at that time. The affair was a result of her emotional and sexual needs.

Mental illness must be shown to have "caused" the behavior which would otherwise constitute marital fault and has been recognized as an excuse for abandonment, cruelty or habitual intemperance.
Husband is hospitalized with a mental illness several times. During the times he was released he attempted to attack his wife with a machete. Wife decided to live with her sister-in-law and told the husband's probation officer about the incident and said she intended to leave him permanently. She files for divorce and the court grants judgment in favor of the husband because his insanity excused the incident. she files for divorce again two years later on the grounds that they have been separated for two years. Husband argues that he did not voluntarily agree to the separation because he was not sane at the time. Result in LA?
Husband argues that the separation contemplated by the LA statute is a voluntary one. Wife argues that voluntariness is not needed but this would render husbands in the military to file for divorce. Court says both are incorrect. Statute requires voluntary intent by at least one of the parties. Voluntary separation on her part was sufficient.
What is a requirement that the UMDA added for no-fault divorce?
no fault divorce is permitted only where (1) the court finds that the parties have lived separate and apart for a period of more than 180 days preceding the commencement of the proceeding or (2) there is serious marital discord adversely affecting one or both parties
Husband files for no fault divorce in 2001 and wife argues that the couple has not been separated long enough. Husband argues they were separated in 1999 while wife argues they were separated upon filing of divorce.

Husband admits that the parties remained living under the same roof but argues they lived separate lives. He says they stopped having regular sexual intercourse, stopped having meals together except when the daughter was there, he did his own laundry etc. He argues that he shouldnt be expected to leave the house because he built it and it is next door to his lumber company.

Wife argues that they were together because they went on vacations, she attended his company christmas party, had occaisional sexual intercourse and they sought marriage counseling.

Husband argues all of this was for the benefit of the daughter.

Were they living separate and apart?
Supreme Court of Penn thinks so in Frey v. Frey.

They found the phrase "separate and apart" to mean living separate lives not under separate roofs."

Court found he and his wife gave the appearance that everything was fine for the sake of his daughter and he should not be penalized for that.

Court also finds that the occaisional sex and marriage counseling do not constitute reconciliation because isolated attempts do not begin running anew the marital relationship.


"We believe that cohabitation contemplates more of a marital relationship than what occurred here"

other jurisdiction require separate dwellings
Art. 102. Judgment of divorce; living separate and apart 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 the requisite period of time, in accordance with Article 103.1, has 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 the requisite period of time, in accordance with Article 103.1, 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.
Plaintiff filed a petition for divorce in LA for no-fault based divorce. The defendant subsequently answers with a reconventional demand that the divorce be obtained based on adultery.

Which claim will the court address first?
No-fault. Court held that it does not have to hear arguments of fault issues preliminary to or simultaneously with a no fault divorce to show cause. No-fault divorce provided an expeditous method of granting a divorce and litigating fault claims delays that process.

Watters v. Watters
Wife files for a no fault divorce in LA after the 180 days. More than 180 pass and the husband file a rule to show cause for no fault divorce. Wife then moves to dismiss her original petition. Is husband precluded from getting a divorce from this action?
No. he will be granted a new trial. The husband's action of divorce was raised by his rule to show cause which qualifies as a reconventional demand that could not be dismissed on the wife's motion prior to a hearing.

Tomeny v. Tomeny
Define "irretrievable breakdown"
either or both of the spouses are unable or unwilling to cohabit and there are no prospects for reconciliation
What if one spouse wants to end the marriage but the other is convinced their conflicts can be overcome? Will a court grant a divorce based on irretrievable breakdown?
Minnesota did in Richter v. Richter

There the parties had not been separated for 180 days but the court found serious marital discord based on the wife's testimony alone. Husband argues that marriage is a contract and that Minnesota cannot just grant "divorce on demand."

Court said a party's testimony is sufficient to a finding of irretreivable breakdown and that marriage is a contract for determining its validity but it is not a contract in the usual sense of that term.
How do New York's no-fault laws differ from many other jurisdictions?
They require consent by both parties.
What are some criticisms of no-fault divorce and what legislation was enacted in response?
-it increased the divorce rate
-reduced economic security of women and children
-condoned misconduct within the marriage
-encouraged hasty entry into marriage with availability of hasty exit

Louisiana enacted "covenant marriage" legislation in 1997 that gives couples the choice of entering into a marriage with a more restrictive set of rules for dissolution: requires proof of specific fault grounds and satisfaction of a 2 year separation period.

A couple other states have followed this example and enacted their own legislation.

However fewer than 3% of couples have opted for covenant marriage.
A husband deserts his wife and then file for divorce after 12 years of separation. Wife argues one spouse should not be permitted to desert the other and violate the marriage obligations of supporting the spouse and then be allowed to use his or her own fault as teh basis of divorce.

Is she right? (LA)
No. Hurry v. Hurry

Marriage is not a contract in the sense that the laws affecting the relation are amenable to the provisions of state and federal constitutions against impairing obligation of contracts or the divesting of vested rights in so far as the duties and obligations of the spouses toward each other are concerned.

Here, wife is still entitled to alimony should she obtain a decree by reconvention. Thus, the law leaves her right to a settlement, alimony, and division of property unimpaired.
What are the two basic property regimes that apply during marriage?
title theory - spouse who holds title to each asset retains ownership of it. spouse has no legal obligation to consult with his or her spouse regarding the use or disposition of it during the marriage.

This type of regime practiced at divorce resulted in unjust distribution in the traditional family where only the husband had the right to retain property. All states have abandoned this regime at divorce but some maintain it during marriage.

8 states are community property states. Each spouse has a present vested one half interest in all property acquired during the marriage. At divorce 3 states require division of all community property in equal shares (CA, LA, NM)

Community property is distinguished from separate property which includes property acquired before the marriage or during the marriage by gift. Neither spouse may dispose of community property without the consent of his or her spouse
What is the make up of the nation with regard to title, community and equitable distribution?
42 states apply equitable distribution at divorce but title theory during marriage. 5 community property states apply equitable distribution at divorce and community during. 3 states are community during and at divorce (CA, LA NM)
What is equitable distribution?
reflects the idea that marriage is a partnership enterprise to which both spouses make valuable contributions entitling each spouse to a fair share of the property acquired during the marriage regardless of how it is titled. (not equal distribution)


Courts look to two factors to determine the distribution: (1) property is allocated in proportion to spousal contribution (2) property is allocated in proportion to spousal need
What is a hotchpot or kitchen sink jurisdiction?
Courts allocated all property regardless of when it was acquired or how it was acquired. 14 states do this.
Must a couple be subject to division of property rules of its state?
No. couples are free to opt out of a state's rules by entering into a private agreement before or during the marriage
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 immovables; or use of personal property.
Art. 2328. Contractual regime; matrimonial agreement.
A matrimonial agreement is a contract 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. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.
Art. 2334. Persons; scope of application of the legal regime.
The legal regime of community of acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.
How can a spouse's separate property become marital property and vice versa?
Commingling - separate property becomes marital property by commingling if inextricably mingled with marital property or with the separate property of the other spouse. If the separate property continues to be segregated or can be traced into its product, commingling does not occur.

Transmutation occurs when separate property is treated in such a way as to give evidence of an intention that it become marital property.

These doctrines create a rebuttable presumption of a gift to the marital estate.
Husband and wife get divorced and property is divided in accordance with a pre-nup. Certain accounts are not mentioned in the prenupp and husband argues that he can trace his separate funds that he contributed to a joint account and therefore the property is still separate. He also argues that the mercedes is his because it was included in the prenup despite the fact that the wife drove it and paid for maintenance and upkeep. He also argues that a farm is his because the prenup prohibtied creation of marital property, but the farm was purchased with marital funds.

Who gets what?
Nack v. Edwards Nack

Account - In order to trace the separate portion of hybrid property, a party must prove that the claimed separate portion is identifiably derived from a separate asset. However, if a party chooses to commingle marital and nonmarital funds to the point that direct tracing is impossible, the claimed separate property loses its separate status. Even if a party can prove that some part of an asset is separate, if the court cannot determine the separate amount, the unknown amount contributed from the separate source transmutes by commingling and becomes marital property. Here the identity of the husband's funds had been lost in countless transactions involving marital funds.

Car - Wife's payments of car made the car hybrid property at best, but remain separate due to prenup. In absence of prenup wife may be entitled to reimbursement of cost of upkeep.

Farm - property acquired during marriage is presumptively marital unless shown to be separate. Husband reasons that the joint checking account used to pay for the farm was "de facto" his separate account but wife offered evidence of depositing her checks into it.
What is the burden of proof in proving separate property vs. marital and who bears it?
some jurisdictions require "clear and convincing evidence" while others require "preponderance of evidence."

spouse who seeks to show that property should be treated as marital bears burden to show its characterization has shifted so that the separate property comes within definition of marital
Why is the date of acquisition important with regard to the separate v. marital determination?
With respect to a dog, court looked to when it was acquired. Dog was considered separate property because husband acquired it before the marriage even though the parties shared the dog and the husband left the dog in wife's care during separation.

However, date is not always dispositive. In a case where a wife acquired property one month after the wedding and payed the mortgage on the property with her separate funds, the court found the property was not marital because she avoided commingling.
Does the length of time the assets are commingled matter with the separate v. marital property determination?
It might. One court found that the deposit of funds into a joint account for several months to be marital while the deposit of funds for one day to be separate in another case.
What constitutes a gift to the marital estate?
The fact that property can be traced back to separate property does not prevent its recharacterization where donative intent or retitling render it divisible. Donative intent is presumed where property is transferred or transmuted from nondivisible property to joint tenancy subject to division.
How do courts often determine which spouse is entitled to the family home?
Where the divorcing couple has minor children, courts often try to award the family home to the parent who receives physical custody where it is economically feasible to do so.
Who is entitled to the appreciation of separate property during the marriage?
If the appreciation in separate property is due to the labor, monetary, or in-kind contribution of either or both spouses during the marraige and the efforts caused the increase in value, the appreciation is marital property.

If the appreciation is due to passive income which means it was acquired from something other than the labor/money/contribution of either spouse (market forces) then it is separate property.

In Middendorf v. Middendorf, the court held that even if passive forces influence the profitability of a business, it is the employees and their labor input that make the company productive. (Thus if the increae in value is due to a mixture of market forces and management, it will be marital property- business cant operate without management)
Max owns a home. He marries Pat. Pat is an interior designer. Because of her contributions to the design of the house, the market value of the house increased. Does she get reimbursement for this appreciation upon their divorce?
Yes only because her advice was professional in nature. However, appreciation of the land would not go to her because she did not contribute to it.
When does a marriage end for purposes of property distribution?
It varies by jurisdiction. Some hold it is the date of legal separation while others hold it is the filing of the divorce petition. Date of valuation also varies by jurisdiction.
How do judges assign a value to a particular asset if the parties cannot agree on a value?
Judges may rely on appraisals and expert opinions but court is free to accept all, part, or none of the evidence as to the true and correct value. Trial court's decision on valuation will be sustained as long as the court's findings are grounded in the evidence even if substantial contrary evidence exists.
How do courts determine the value of homemaker's services?
1. cost of replacing the services with market labor

2. lost opportunity costs borne by the homemaker by virtue of devoting her time to homemaking instead of market labor

3. econometric models based on economic theory and statistical analysis
Mr. Smith signed a lease extension for the benefit of himself and his wife. The wife did not sign it nor did she have notice of its execution. The landlord sued Mrs. Smith for the remaining balance on the lease. Mrs. Smith argues she has no obligation to pay. Is she right?
No. sunkidd venture v. snyder-entel

A debt incurred by either spouse during marriage is a community debt. This presumption may be rebutted by clear and convincing evidence that the debt was not contracted for community benefit.

Usually, when a spouse's act creates a community liability, it is enforceable only against the community property and the acting spouse's separate property. However, if the obligation is a family expense, it can be enforced against the separate property of one spouse even though the other spouse alone incurred the liability.
may marital funds be used to pay joint obligations undertaken with respect to separate property?
if the marriage has benefited from the separate property, it is appropriate to use marital funds to repay joint debts connected to the property
In the wake of the availability of no-fault divorce, how did courts treat property distribution?
UMDA states distribution of property should be treated as nearly as possible like the distribution of assets incident to the dissolution of a partnership. Many states have statute that disregard the marital misconduct. courts will sometimes consider economic fault where a spouse attempts to dissipate or hide marital assets or otherwise mislead the court.
May a court award a wife money based on the fact that she has little prospect of future income even though she did not make substantial contributions to the marriage?
Yes. If the evidence demonstrates that one party has little or no ability to produce income and little prospect of obtaining assets by other means such as inheritance, and the other party has a history of producing income, then a strong case exists for property assignment and/or alimony in favor of the party with minimal economic prospects.

Ketterle v. Ketterle

Court awards most of property to wife including part of husband's nobel prize.
When will an appellate court find distribution inequitable?
One court upheld an order awarding 90% of the property to the wife because the husband worked sporadically by choice, did not serve as a homemaker and ran up substantial credit card debt for his personal expenses.

The most important cause of reversal is the trial court's failure to state that it has examined and applied the relevant factors or to state reasons for disproportionate divisions
Can the court assign assets to the marital children?
Courts lack the power to order families to provide for their children beyond the amounts required for child support but courts generally treat the asset as marital and reserve it for the benefit of the children.
What is the rationale for alimony under the American Law Institute Principles? When is it usually awarded?
The initial rationale was premised on the fact that women gave up their property rights at marriage and were without the means to support themselves at divorce.

The modern rationale is compensation for economic losses that one of the spouses incurred as a result of marriage. Compensation could be awarded based on a loss of a return on an investment in human capital where one spouse has supported the other through school. They also compensate for loss of earning capacity when one parent has been the primary caregiver. Also compensation is given for losses in short term marriages where sacrifices by one sposue leave themselves with a lower standard of living than enjoyed prior to marriage.
Can a husband receive alimony payments?
All states have gender neutral alimony statutes that permit either the husband or wife to receive an award.. However, men seldom request it in part because judges may continue to harbor prejudices against awarding alimony to men.
When doe the UMDA award alimony?
(1) where spouse seeking maintanence lacks sufficient property to provide for reasonable needs

and

(2) where spouse seeking maintenance is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home
What six factors does the UMDA look to in determining whether to award alimony?
(1) financial resources

(2) time needed to acquire education or training

(3) standard of living during marriage

(4) duration of marriage

(5) age and physical and emotional condition of party

(6) ability of other spouse to meet needs of spouse seeking maintenance
What are six kinds of justifications for alimony awards?
1. fault based - UMDA removed fault from its guideliens but some states maintain this justificaiton

2. Need based - some judges believe need means same standard of living while others limit it to the party's minimal necessities

3. contract - in this theory alimony would always be awarded as damages for the party not in breach

4. partnership - suggests the spouses have an implied agreement to work for the joint venture's benefit rather than for the individual's and alimony also assures that each spouse takes responsibility for hte burden for the failed partnership

5. restitution - when one spouse confers a benefit on the other, the benefit is conferred

6. reimbursement - compenstate one spouse for enhancing the other's earning capacity
What are the different types of alimony awards?
1. temporary alimony (alimony pendente lite) - dependent spouse recceives support while the parties are litigating the divorce. based on financial need.

2. (final awards)

2a. rehabilitative alimony - support is provided for a definite period while recipient seeks to become self-supporting

2b. reimbursement alimony - spouse whose financial contributions during the marriage directly enhanced the other spouse's earning capacity is awarded compensation

2c. bridge-the-gap alimony - provides necessary funds to bridge the gap between married and single status - short term identifiable support needs taht are not expressly rehabilitative in nature

2d. permanent, indefinite, or periodic alimony - courts award this because dependent spouse is too old, sick, or disabled and cannot reasonably be expected to become self supporting

3. lump sum alimony - single payment not subject to modification (usually required where payor has a substance abuse problem or habitual spendthrift that would prevent them from making periodic payments)
Art. 111. Spousal support; authority of court
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.
In LA, The right to claim after divorce the obligation of spousal support is subject to a peremption of three years. Peremption begins to run from the latest of the following events:
(1) The day the judgment of divorce is signed.

(2) The day a judgment terminating a previous judgment of spousal support is signed, if the previous judgment was signed in an action commenced either before the signing of the judgment of divorce or within three years thereafter.

(3) The day of the last payment made, when the spousal support obligation is initially performed by voluntary payment within the periods described in Paragraph (1) or (2) and no more than three years has elapsed between payments.
Art. 113. Interim spousal support allowance pending final spousal support award
Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.
In LA will the finding of other financial resources for the husband warrant a higher award of alimony for the wife on appeal?
It did in Desormeaux v. Montgomery.

Spouse who claims entitlement to alimony bears the burden of establishing the insufficiency of his or her income in proportion to the other's means. In this case, the trial court failed to consider additional sources of funds. In assessing temporary alimony, all resources, not only income, from which the wants of life may be supplied must be examined. This examination is not limited to income but all financial means. (rent from a lessee, cash disbursements from a business, etc)
In LA who determines child custody?
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.
Can custody be awarded by agreement of parents in LA?
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.
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.
Art. 245. Custody of illegitimate children acknowledged by both parents
In a proceeding in which custody of an illegitimate child formally acknowledged by both parents is sought by both parents, and in proceedings for change of custody after an original award, custody shall be awarded in accordance with the provisions on custody incident to divorce contained in Title V of this Book.
What is the tender years doctrine and what doctrine replaced it?
doctrine held that infants and very young children should be placed with their mother unles she was unfit to care for them. Children who were beyond their tender age were placed with the parent of the same sex. State courts began to hold that this doctrine violated emerging constitutional law concerning gender equality. Watts v. Watts held that there shall be no prima facie right to the custody of the child in either parent. Some states enacted legislation that authorized courts to determine child custody on a case-by-case basis placing the mother and father on equal footing because the happiness and welfare of the child are to determine its care and custody. They use the terms "best interest of the child" to describe this standard.
May a court find that it is in the best interest of the child to live with his grandparents rather than his own father?
Yes. Painter v. Banister

Court found the grandparent's home provided a more stable environment as they were religious and had money. The father was athiest and had an unstable income. Although they found the father's environment to be intellectually stimulating, they believed the security and stability were more important in the proper development of the child.

Although there is a presumption of parental preference, the court said it was in the best interest of child to live with grandparents.

Court said mother's will which left custody to father was entitled to consideration but didn't give it much weight.

Court also considered the grandparent's old age - they were 60, but didn't give this much weight either.

Court focused on the fact that child did not know boundaries and was disruptive in school but his behavior improved upon living with his grandparents.

Painter v. Bannister
What approach do most states take in identifying which living situation is in the child's best interest?
The vast majority of states have specified factors for courts to consider (health of parties, community, drug use, etc) in assessing child custody claims, but determining the best interests of the child, acknowleging that while principles certainly provide guidance, child custody disputes by their very nature must be analyzed on a case by case basis.
How do LA court determine which living situation is in the 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.

(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.
Can a court grant custody to a parent because the other parent has engaged in a interracial relationship?
No. Whatever problems racially mixed marriages may pose for children, they cannot support a denial of constitutional rights. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have custody.

Palmore v. Sidoti
Can a parent's sexual conduct be a basis for denying child custody?
Generally, marital misconduct alone is not a controlling consideration when making a custody determination. However, when misconduct results in some demonstrable harm to the child, parental fitness becomes an issue. Harm is self-evident when misconduct occurs in the presence of a child mature enough to perceive it.

In a case of a wife that had cybersex and had sex with a partner while the baby was home, the court found that although the conduct was potentially harmful and appalling, it found no demonstrable effect on the child. The child was not in the direct presence and was monitored by a baby monitor. Court found no harmful effect on the child.

Zepeda v. Zepeda

While this court used a nexus test between the behavior and harm to the child, other courts use a per se rule or at least a rebuttable presumption.
Do courts consider the parent's sexual orientation when deciding custody?
Yes. Some use a nexus test and look to whether it causes harm. Some use a per se rule (minority of states) and decide they are not entitled to custody and some use a balancing approach in which it is not determinative of custody but is given weight.
How does LA deal with the sexual orientation of a parent seeking custody?
This involves a determination of (1) whether the children were aware of the illicit relationship (2) whether sex play occurred in their presence (3) whether the conduct was notorious and brought embarrassment to the children and (4) what effect the conduct had on the family home life.

Court held that parent should not be denied status as domiciliary parent solely on the basis of homosexuality.

Richard v. Richard
Can siblings be separated under child custody orders?
Some jurisdictions assume that keeping children together serves their best inetersts in an absense of a showing to the contrary.

Other jurisdictions allow separation where the siblings have different needs. For example, in Arthur v. Arthur, the boys wanted to live with their father because the school they attended with their mother did not have sports, which was important to them. The court allowed the girls to stay with the mother and granted custody of boys to father.

Other exceptions to the general no-separation rule can be found when (1) siblings have never lived together (2) siblings express strong preference to live with separate parents (3) siblings dont get along (4) significant age difference
How does religion play a role in determining child custody?
A parent may not be denied custody on the basis of his or her religious practices unless there is probative evidence that those practices will adversely effect the mental or physical health of the child.

Note that where a court finds a religious school does not provide quality education because it spends much time studying the bible, the decision is not based on the parent's religion but the quality of education. (Arthur v. Arthur)

One court found it not an abuse of discretion to consider the future religious example and find a mother was more committed to her child's religious training. Other courts find abuse where a court ordered a couple practicing Wiccan not to expose their child to the non-mainstream beliefs.

Some courts find religion is a "best interest factor" while others find it irrelevant because of 1st amendment rights.
How are pets treated at divorce?
traditionally treated as personal property but modern trend is to treat pets as if they are family members
How do courts treat the child's preference in determining custody?
Most states follow the UMDA which provides that a sufficiently mature child's custody preference is considered but it leaves questions of maturity and weight of the preference to judicial discretion.

A few states require deference to wishes of child above a certain specified age (usually 12-14 but court is still allowed to consider wishes of children younger). In all other states, judge has discretion to consider child's preference.

In general, the younger the child, the less likely that his or her opinion will be solicited, much less taken seriously
§363. Ordered mediation prohibited
Notwithstanding any other provision of law to the contrary, in any separation, divorce, child custody, visitation, child support, alimony, or community property proceeding, no spouse or parent who satisfies the court that he or she, or any of the children, has been the victim of family violence perpetrated by the other spouse or parent shall be court ordered to participate in mediation.
§364. Child custody; visitation
A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.

B. If the court finds that both parents have a history of perpetrating family violence, custody shall be awarded solely to the parent who is less likely to continue to perpetrate family violence. In such a case, the court shall mandate completion of a treatment program by the custodial parent. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court.

C. If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a treatment program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has completed a treatment program, is not abusing alcohol and psychoactive drugs, and poses no danger to the child, and that such visitation is in the child's best interest.

D. If any court finds, by clear and convincing evidence, that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and the children, until such time, following a contradictory hearing, that the court finds, by a preponderance of the evidence, that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the children's best interest.
Why is joint custody not the prefereable method of custody? What kind of issues frequently become the focal point in post-divorce disputes?
religious upbringing, relocation, educational choices, access to child's daily activities, etc.

For example, in Nicita v. Kittredge, the father was catholic and the mother was jewish. The parties had an agreement that stated they would cooperate and resolve all issues by agreement. However, the parties began making unilateral choices including what religion the children would be raised in. This caused mixed messages as the catholic church teaches that non-believers in Jesus go to hell. Court set out an order detailing which parent was primarily responsible for which duty because the parties could not compromise on their own.
Is joint custody appropriate when parents express extreme animosity toward each other?
The award is appropriate only where the arrangement would be in the best interests of the child. A criterion for such award is that the parties have the mutual ability to cooperate in reaching shared decisions in the matters affecting the child's welfare and a court may modify provisions of the marital agreement relating to care, custody, and education. The court can also require parents to make all physical exchanges in a public place such as the courthouse steps.

Courts may also order an award of sole custody where there is constant, ongoing, severe tension. For example, where a private school revokes a child's admission after witnessing the parents bickering.
In LA, parents have a set of twin boys and agree to alternate custody annually with visitation rights for the noncustodial parent. After much litigation, visitation rights and custody have changed several times. It is clear the parties are unable to settle their disputes amicably or to insulate the children from their battles. What will the court do?
Since the parents practice differing views on the rearing of the children and are unable or unwilling to share the responsibilities inherent in raising the children, it is unacceptable to allow them to share the duty. Court remands for determination of which parent is better suited for serving best interests of children.

Turner v. Turner
§335. Joint custody decree and implementation order
A.(1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.

(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.

(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

(3) The implementation order shall allocate the legal authority and responsibility of the parents.

B.(1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.

(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.

(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.
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 accordance with Paragraph B of this Article, extraordinary circumstances may include when a parent is addicted to a controlled dangerous substance.

Art. 136.1. Award of visitation rights

A child has a right to time with both parents. Accordingly, when a court-ordered schedule of visitation, custody, or time to be spent with a child has been entered, a parent shall exercise his rights to the child in accordance with the schedule unless good cause is shown. Neither parent shall interfere with the visitation, custody or time rights of the other unless good cause is shown.
Art. 137. Denial of visitation; felony rape; death of a parent
A. In a proceeding in which visitation of a child is being sought by a natural parent, if the child was conceived through the commission of a felony rape, the natural parent who committed the felony rape shall be denied visitation rights and contact with the child.

B. In a proceeding in which visitation of a child is being sought by a family member, if the court determines, by a preponderance of the evidence, that the intentional criminal conduct of the family member resulted in the death of the parent of the child, the family member shall be denied visitation rights and contact with the child.
What is one ground for termination of parental rights under LA children's code?
(8) The commission of a felony rape by the natural parent which resulted in the conception of the child.
§341. Restriction on visitation
A. Whenever the court finds by a preponderance of the evidence that a parent has subjected his or her child to physical abuse, or sexual abuse or exploitation, or has permitted such abuse or exploitation of the child, the court shall prohibit visitation between the abusive parent and the abused child until such parent proves that visitation would not cause physical, emotional, or psychological damage to the child. Should visitation be allowed, the court shall order such restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child. All costs incurred in compliance with the provisions of this Section shall be borne by the abusive parent.

B. When visitation has been prohibited by the court pursuant to Subsection A, and the court subsequently authorizes restricted visitation, the parent whose visitation has been restricted shall not remove the child from the jurisdiction of the court except for good cause shown and with the prior approval of the court.
§363. Ordered mediation prohibited
Notwithstanding any other provision of law to the contrary, in any separation, divorce, child custody, visitation, child support, alimony, or community property proceeding, no spouse or parent who satisfies the court that he or she, or any of the children, has been the victim of family violence perpetrated by the other spouse or parent shall be court ordered to participate in mediation.
§364. Child custody; visitation
C. If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a treatment program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has completed a treatment program, is not abusing alcohol and psychoactive drugs, and poses no danger to the child, and that such visitation is in the child's best interest.

D. If any court finds, by clear and convincing evidence, that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and the children, until such time, following a contradictory hearing, that the court finds, by a preponderance of the evidence, that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the children's best interest.
§366. Injunctions
A. All separation, divorce, child custody, and child visitation orders and judgments in family violence cases shall contain an injunction as defined in R.S. 9:362. Upon issuance of such injunction, the judge shall cause to have prepared a Uniform Abuse Prevention Order as provided in R.S. 46:2136.2(C), shall sign such order, and shall forward it to the clerk of court for filing, all without delay. The clerk of the issuing court shall transmit the Uniform Abuse Prevention Order to the Louisiana Protective Order Registry, R.S. 46:2136.2(A) by facsimile transmission, mail, or direct electronic input, where available, as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.

B. Any violation of the injunction, if proved by the appropriate standard, shall be punished as contempt of court, and shall result in a termination of all court ordered child visitation.
§367. Costs
In any family violence case, all court costs, attorney fees, evaluation fees, and expert witness fees incurred in furtherance of this Part shall be paid by the perpetrator of the family violence, including all costs of medical and psychological care for the abused spouse, or for any of the children, necessitated by the family violence.
What does the UMDA provide regarding a non-custodial parent's visitation rights?
They are entitled to reasonable visitation rights unless the court finds after a hearing that visitation would endanger seriously the child's physical, mental, moral, or emotional health.

This is a much more restrictive standard that the"best interests" standard that applies to custody.


Some states abandoned the terms "custody and visitation" for terms such as "parental rights and responsibilities" or " parental contact" because the concept of visitation is a form of custodial responsibility that should not be given to a non-custodial parent.
Is a state statute that allows any party to petition for visitation rights at any time constitutional?
No. Troxel v. Granville

After the husband committed suicide, his parents (the grandparents) sought visitation rights of the children. The lower court granted it finding it in the best insterests of the children to spend time with the grandparents. The Supreme Court disagreed holding that the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made. So as long as a parent adequately cares for his or her children there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of the children. It seems commonsensical that it is in the best interest of a child to spend time with a grandparent, but that decision is for the parent to decide.
Do siblings have a right to visit each other? When will grandparents be afforded visitation rights?
No standing to seek visitation absent a statutory provision. New Jersey has one such provision. They also construed Troxel to require that grandparents seeking visitation must show that child would suffer harm absent visitation and allowed grandparents to seek visitation.
§344. Visitation rights of grandparents and siblings
A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

C. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.
What to courts look to when calculating alimony?
1. some look to statutory factors such as financial resources, standard of living, duration of marriage, etc

2. some practice income equalization where courts look at disparity of income and attempt to equalize them (but usually only where there are disparate earning capacities)

3. other jurisdictions establish alimony guidelines and calculate alimony based on a set formula with a number of factors invovled
Art. 112. Determination of final periodic support

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.

B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.

(2) The financial obligations of the parties.

(3) The earning capacity of the parties.

(4) The effect of custody of children upon a party's earning capacity.

(5) The time necessary for the claimant to acquire appropriate education, training, or employment.

(6) The health and age of the parties.

(7) The duration of the marriage.

(8) The tax consequences to either or both parties.

C. The sum awarded under this Article shall not exceed one-third of the obligor's net income.
Mildred and Charles are married in LA. Mildred becomes very ill and Charles began seeing other women. Mildred had many debts which preceded the marriage and Charles had to pay her thousands of dollars for her medical expenses since she filed for bankruptcy. He was also furious that she spent $8,000 of his money on her daughter's wedding which she obtained on a visa without his consent, yet the daughter said he was glad to help with the wedding. Finally, Mildred complained that Charles spent so much money on charity. After he filed for divorce, Mildred attempted to get alimony. Will she be barred by fault?
No. Allen v. Allen

Freedom from fault is necessary for permanent alimony.
Legal fault consists of serious misconduct which is the cause of the marriage's dissolution. A spouse who reacts to suspicion of adultery should not be precluded from receiving alimony solely because of his or her response. He knew about her debts, and the disagreement about the wedding expenditure and difference of opinion about charity did not rise to level of legal fault.
Art. 114. Modification or termination of award of periodic support
An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obligor spouse shall not constitute a change of circumstance.
Art. 115. Extinguishment of spousal support obligation
The obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.
Art. 116. Modification of spousal support obligation
The obligation of final spousal support may be modified, waived, or extinguished by judgment of a court of competent jurisdiction or by authentic act or act under private signature duly acknowledged by the obligee.
LA RS 9:311 Reduction or increase in support; change in circumstances
A. 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

B. A judgment for past due support shall not of itself constitute a change in circumstances of the obligor sufficient to reduce an existing award of support
Husband files a motion in LA to reduce his alimony payments to his wife on the basis that she now has a degree and earning capacity. Wife argues that even though there has been a change in her earning capacity for three months, there has been no change in her financial circumstances. She was offered two different jobs but turned them down because the company did not have qualified staff and it required her to work on saturdays indefinitely which her 16 year old daughter did not like. Did the court abuse its discretion in lowering her alimony?
No. Richard v. Richard

Party seeking modification bears burden of showing there has been a substantial change in circumstances of one of the spouses. A spouse claiming alimony may not establish his or her needs by an arbitrary refusal to work. However, they are not precluded from obtaining training or required to accept the first job available. In this case though the court found it reasonable to reduce her alimony because she had earning capacity for over three months and she turned down two jobs in that time period.
A father agreed to pay his ex-wife $5,000 per month as rehabilitative alimony (until she could support herself). He sought modification of the award on the basis that she had been recertified to teach school and was employed part-time in a medical clinic. The mother presented evidence that she could not work full time because she is the primary custodian of 4 kids, 2 of which developed learning disabilities which was unforseen at the time of the alimony agreement. Will the court grant the modification?
no. Martindale v. Martindale

Father argues she did not make a reasonable attempt to rehabilitate herself while knowing the alimony was temporary. Court found she was unable to due to demands of her children.
When there is a substantial change in one spouse's income, will the court grant a modification of alimony?
Where a husband lost his job in a very specialized area and could not find similar employment but was forced to accept a job that paid $60,000 less, the court modified his alimony payments. However, where a stay at home mom accepted employment, her alimony payments from her husband were not lowered because her net income was still much less than her husband's.

Thus courts make decisions on different factors.
Can a husband or wife stop paying alimony by their own determination that the other spouse has been rehabilitated or has breached the alimony agreement?
no. must move for modification from the court or risk being held in comtempt for failing to pay
Most states provide that alimony ends upon:
1. either party's death
2. the recipient's marriage or cohabitation

unless a court order or an agreement between the parties provide otherwise
Does "cohabitation" mean with the opposite sex for the purposes of alimony termination?
In Garcia v. Garcia, the court found that a wife's sexual contact and cohabitation with another woman was sufficient because the Utah statute provided that cohabitation must be with "another person." Other states require that it be the opposite sex.