CHAPTER 1: JURISDICTION OVER MARRIAGE History of Marriage 1.

Marriage: union between a MAN and a WOMAN - created by a civil contract - subjected to special rules and legislation - controlled by the state, not the federal government (not in Constitution) 2. Three Elements of Marriage: 1. a method of entering the relationship 2. factors making marriage invalid 3. jurisdiction of the courts to rule on the validity 3. Covenant Marriage: optional form of marriage that is reflective of more commitment - more difficult to terminate - participation of religious clerics - instruction about the meaning of lifelong marriage 4. DOMA (Defense of Marriage Act): a court in any state may refuse to recognize a same-sex marriage celebrated in another state - defines marriage as the union of one man and one woman - only legislation ever enacted by Congress under grant of authority in Article IV Civil Code Art. 86:Marriage; Definition Marriage is a legal relationship between a man and a woman that is created by civil contract. The relationship and contract are subject to special rules prescribed by law. CHAPTER 2: CONSTITUTIONAL GUARANTIES 2.1 Freedom of Religion U.S. Constitution. Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people peaceably to assemble. Case Law: 1. Reynolds v. United States: Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion, unless that practice is an offense to society, such as polygamy. 2.2 Equal Protection and Due Process 1. Rational Basis Test: assumes the validity of a legislative judgment as to relevant similarities and differences - when a law is made it is tested - law will be upheld if there is no rational connection between the classification and a state interest 2. Strict Scrutiny: a check on law that may interfere with certain rights - suspect class minority that has disabilities and subject to purposeful unfair treatment (race/ national origin)

- fundamental rights denial of a particular groups access to a fundamental right or a burden imposed on those who have exercised the right (marriage or interstate travel) - compelling government interest 3. Substantive Due Process: a means to halt government intrusions into certain areas which (not enumerated in the Constitution) but are of fundamental importance - the more important the right, the great the state interest - Racial Discrimination A statute which prohibits marriage between white and black persons is deemed unconstitutional under the 14 amendment. - Sex Discrimination most states enacted statutes the prohibit marriage between people of the same sex, however liberty protects the person from unwarranted government intrusion into a dwelling or other private places. Case Law: 1. Zablocki v. Redhail: Marriage is a fundamental right of man which should not be infringed upon. A statute requiring that restrictive classes must obtain a court order to be married is unconstitutional because it violates the equal protection clause and infringes upon a basic civil right of man. 2. Turner v. Safley: Laws violating rights of man, including prisoners, should be declared unconstitutional, such as a law prohibiting marriages between two prisoners. CHAPTER 3: ENTRY INTO MARRIAGE 3.1 Engagement, or Contract to Marry 1. Engagement: the promise to marry is treated as a contract and damages are granted for breach of that contract - must show that the party was injured - that they were free from fault - no specific performance will be awarded because cant force parties to marry - cannot be engaged to marry someone when you are already married (makes engagement null) Case Law 1. Glass v. Wiltz: Damages from a breach of promise to marry will be awarded if the plaintiff can prove that they are free from fault ad injured in any way, but injury must be a direct result of the breach of promise to marry and damages will not be awarded if that link is not shown. 2. Sanders v. Gore: Engagements to marry by someone who is already married are null and there is no cause of action for breach of promise to marry because they were not in the capacity to begin with to enter into the contract for a promise to marry. Thus, a promise to marry made by a man or woman already married, to take effect when he or she has obtained a divorce from his or her present spouse is illegal and void. 3.2 Donations in Contemplation of Marriage 1. Donations: every donation, such as a ring, in contemplation of marriage will fall if the marriage does not take place - have to give back the ring if dont get married - a donation made in the hope of encouraging one to marry does not fall and can be kept because it is considered a gift

3.3 The Marriage Contract 1. Marriage Contract: entered into by the intended spouses for the purpose to adopt a matrimonial regime - a plan of order respecting their patrimonial rights and obligations - a rule on the amount each spouse will contribute to the expenses of the marriage - can modify or terminate their matrimonial regime before or during marriage, however if during marriage, must have judicial approval Civil Code Art. 2327: Legal Regime The legal regime is the community acquets and gains established in Chapter 2 Civil Code Art. 2329: Exclusion or Modification of Matrimonial Regime Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy. Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They can subject themselves to the legal regime by a matrimonial agreement at any time without court approval. 3.4 Contract for Covenant Marriage 1. Covenant Marriage: requires pre-marital counseling by a priest or minister - no minimum time period of counseling - must file a declaration of intent with an affidavit to attest to the counseling (legally binding agreement) - harder to get out of this kind of marriage 3.5 Conditions to Lawful Marriage 1. Conditions of a Valid Marriage 1. absence of a legal impediment 2. a marriage ceremony 3. free consent of the parties Civil Code Art. 87: Contract of Marriage The requirements for the contract of marriage are: the absence of a legal impediment, a marriage ceremony, and the free consent of the parties to take each other as husband and wife, expressed at the ceremony. 3.6 Absence of a Legal Impediment 1. Impediments to Marriage: 1. Undissolved marriage 2. Same sex 3. Related in the direct line 4. Related in the collateral line within the fourth degree Civil Code Art. 88: Impediment of Existing Marriage A married person cannot contract another marriage.

Civil Code Art. 89: Impediment of Same Sex Persons of the same sex may not contract marriage with each other. A purported marriage between persons of the same sex contracted in another state shall be governed by the provisions of Title II of Book IV. Civil Code Art. 90: Impediment of Relationship The following persons may not contract marriage with each other: (1) ascendants or descendants, (2) Collaterals within the fourth degree whether of whole or half blood. The impediment exists whether the persons are related by consanguinity or by adoption. Nevertheless, persons related by adoption, though not by blood, in the collateral line within the fourth degree may marry each other if they obtain judicial authorization in writing to do so. 3.8 A Marriage Ceremony 1. Marriage Ceremony: absolutely null if no ceremony (cant cure) - consent and participation by both parties - presence of both parties required - performed by a qualified third party Code Art. 91: Marriage Ceremony Civil The parties must participate in a marriage ceremony performed by a third person who is qualified, or reasonably believed by the parties to be qualified, to perform the ceremony. The parties must be physically present at the ceremony when it is performed. Civil Code Art. 92: Marriage by Procuration Prohibited A marriage may not be contracted by procuration. 3.12 Free Consent of Both Parties 1. Vices of Consent makes marriage relatively null because may have a remedy - minors - intoxication - incapably of consent because of mental incapacity - person laboring under disability is the only one that can contend the marriage Civil Code Art. 93: Vices of Consent Consent is not free when given under duress or when given by a person incapable of discernment. CHAPTER 4: NULLITY OF MARRIAGE 4.1 Causes of Nullity Civil Code Art. 94: Absolutely Null Marriage 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 in action to recognize the nullity may be brought by an interested person. 4.2 Marriages Specifically Declared Null But Subject to Confirmation 1. Relatively Null: subject to confirmation

- one of the consent of the parties has not been freely given - can confirm marriage after the party has regained his liberty - the party who did not give their free consent is the only party who can contest the marriage Case Law: 1. Lacoste v. Guidroz: Engagements made through fraud, error or violence are not absolutely null, but are voidable by the parties who have contracted under the influence of such error or violence or by the representatives of such parties. 2. Stier v. Price: Marriages celebrated without the free consent of the married persons or of one of them can be annulled only upon the application of both parties or of that one whose consent was not free, that when there had been a mistake in the person, the party laboring under the mistake can alone impeach the marriage. Civil Code Art. 95: Relatively Null Marriage; Confirmation A marriage is relatively null when the consent of one of the parties to marry is not freely given. Such as 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 Code Art. 97: Civil Effects of Relatively Null Marriage A relatively null marriage produces civil effects until declared null. 4.3 Marriages Specifically Declared Null and Not Ratifiable 1. Absolutely Null: Contracted without a marriage ceremony, by procuration or in violation of the impediments - cannot be confirmed as a marriage - party can contract another marriage without having the first judicially annulled 2. Putative Marriage: a null marriage, but one of the parties is unaware that it is null. - one party is in good faith which is an honest and reasonable belief that the marriage is valid - absolutely null, but the good faith party will receive the civil effects of the marriage - if a party is in bad faith, will only receive the civil effects if its because of prior undissolved marriage - no civil effects of a same sex marriage 3. Grounds for Annulment: - legal impediment - fraud - no ceremony - no free consent Civil Code Art. 96: Civil effects of absolutely null marriage; Putative 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 nullity is one partys 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 latter party contracts a valid marriage. A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties. A purported marriage between parties of the same sex does not produce any civil effects.

Case Law: 1. Succession of Marinoni: A putative marriage is not founded on actual marriage or the ceremonial marriage, but on the reasonable belief by one or both of the parties that they were honestly married and that their offspring came from a lawful and honorable union. If only one of the parties is in good faith, the marriage produces civil effects only in her or his favor. 2. Thomason v. Thomason: Good faith is defined as an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. It consists of being ignorant of the cause which prevents the formation of the marriage or being ignorant of the defects in the celebration which caused the nullity 3. Eddy v. Eddy: If a party entered into a marriage in good faith believing that the marriage was valid and that there were no legal impediments that would make the marriage invalid, they are entitled to the civil effects as a putative spouse. 4. Gathright v. Smith: There are times when the burden is on a spouse to do investigation and prove the marriage null, but depends on the circumstances of the case. 4.9 Legislative and Judicial Jurisdiction Over Nullity of Marriage 1. Conflict of Laws: the law of the state whose policies would be most seriously impaired if its law were not applied to the particular issue governs that status of a natural person. - strength and pertinence of the relevant policies in light of the relationship of the states, the policies referred to, and the policies sustaining the validity of obligations voluntarily undertaken. Civil Code Art. 3519: Status of Natural Persons 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 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 3515 and (3) the policies sustaining the validity of obligations voluntarily undertaken of protecting children, minors, and other in need of protection and preserving family values and stability.

CHAPTER 5: PERSONAL EFFECTS OF MARRIAGE 5.1 Public Order Character 1. Public Order Character: effects of marriage between spouses are personal and patrimonial - effects of marriage are a matter of public order and therefore cannot be altered - married persons owe each other fidelity, support and assistance Civil Code Art. 98: Mutual Duties of Married Persons Married persons owe each other fidelity, support and assistance. Case Law: 1. Favrot v. Barnes: Alimony is to a spouse is not a claim to the property of a spouse, it is a claim against a spouse, limited to his or her income.

5.2 Principal Mutual Obligation 1. Obligation: legal or moral duty to do or not to do something - fidelity - support - assistance 5.3 Mutual Fidelity 1. Fidelity: has positive and negative aspects - positive fidelity refusal of sexual life is under some circumstances assumed to be an act of cruelty by the other spouse - negative fidelity not to share sex with anyone but spouse - fault for purposes of post divorce alimony Case Law: 1. Currier v. Currier: Fault is grounds for separation. A spouse seeking permanent alimony must be without fault and the burden of proof is upon claimant. Fault is conduct and substantial acts of commission or omission by wife violative of her marital duties and responsibilities. 5.4 Mutual Support 1. Support: whatever is necessary for living - traditionally food, shelter and clothing - ordinary conveniences judged by the standards and possibilities of persons, time and space - owed a duty to support each other when in need of assistance Civil Code Art. 111: Spousal Support 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 free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. Case Law: 1. Chi v. Pang: Either spouse must come to the assistance of the other and the plaintiff here is obligated to render assistance to his wife if she is unable to provide for herself. Spouse must prove they are unable to provide for themselves. 5.5 Mutual Assistance 1. Assistance: at least help and care of the ill or infirmed spouse - if fail to provide support it is fault for purposes of alimony - the tasks of each spouse, to the extent he or she may not accomplish them alone, are also the tasks of the other, to the extent he or she can be of assistance in the cooperative society of marriage 5.6 Mutual Assumption of Parental Authority and Responsibility Civil Code 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. 5.7 Effect of Marriage on Surname

1. Surname: last name - in Louisiana, a wife has the option as to whether she keeps her own last name or assumes the last name of her husband -widowed and divorce women have the same option Civil Code 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. 5.8 Covenant Marriage and Agreement to Counseling 1. Counseling: a couple who enters into a covenant marriage, the prospective husband and wife agree to take all reasonable steps to preserve the marriage, including counseling - if one spouse refuses to take the steps to preserve the marriage, he or she has breached the contractual obligation assumed in the declaration of intent -damages consist of the loss sustained and the profit of which the injured person has been deprived CHAPTER 6: THE PATRIMONIAL EFFECTS OF MARRIAGE 6.1 General Principles 1. Matrimonial Agreement: an agreement between spouses about the interest each shall have in the assets they own at marriage or acquire after - if no agreement has been made, then the legislature will impose one on them - minor cannot enter into agreement unless given by the concurrence of father and mother - effective towards third parties when filed in the conveyance records Civil Code Art. 2325: Matrimonial Regime A matrimonial regime is a system of principles and rules governing the ownership and management of property of married persons as between themselves and toward third persons Civil Code Art. 2326: Kinds of Matrimonial Regimes A matrimonial regime may be legal, contractual or partly legal and partly contractual. Civil Code Art. 2328: 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. Civil Code Art. 2329: Exclusion or Modification of Matrimonial Agreement Spouses may enter into matrimonial agreement before or during marriage as to all that are not prohibited by public policy. Spouses may enter into matrimonial agreement that modifies or terminates a regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles of law. Civil Code Art. 2331: Form of Matrimonial Agreement An agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

Civil Code Art. 2334: Persons; Scope of Application of Legal Regime The legal regime of community acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of their marriage or the place of celebration 6.2 Separation of Property by Marriage Contract 1. Separate Property: property that only the spouse that owns it has exclusive rights to - no concurrence of the spouses required - what they had at the time they entered into the marriage - things the spouse inherits or gains from injury - the only time they share property with their spouse is where the expenses incurred are for the necessities of the spouse or family Civil Code Art. 2335: Classification of Property Property of married persons is either community or separate. Civil Code Art. 2341: Separate Property The separate property of a spouse is his exclusively. It comprises; property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donations to him individually; damages awarded to a spouse in action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse Civil Code Art. 2342: Declaration of Acquisition of Separate Property A declaration in an act of acquisition that things are acquired with separate funds as the separate property of a spouse may be converted by the other spouse unless he concurred in the act. 6.4 The Community of Acquets and Gains 1. Community Property: property acquired together during the marriage - requires the concurrence of the spouses - whatever is donated and given to the couple jointly - any income that comes from separate property becomes community property - does not matter if the other spouse works or not, they are entitled to half 2. Exceptions to Community Property: - revenue from separate assets by filing ownership in the parish where the property is located - sums recovered by the spouse in compensation for personal injury - damages awarded to spouse for breach of contract Civil Code Art. 2336: Ownership of Community Property Each spouse owns a present undivided one-half interest in the community property. Nevertheless, neither the community nor things of the community may be judicially partitioned prior to the termination of the regime. Spouses may voluntarily partition the property in whole or in part. Each thing the spouse acquires from then is separate property. Civil Code Art. 2338: Community Property

The community property comprises: property acquired during the existence of the legal regime through the effort, skill or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate. 6.5 Management and Control of Assets Civil Code Art. 2337: Disposition of undivided Interest A spouse may not alienate, encumber, or lease to a third party his undivided interest in community or in particular things of the community prior to the termination of the regime. Civil Code Art. 2339: Fruits and Revenues of Separate Property The natural and civil fruits of separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties and shut-in payments arising from mineral lease are community property. A spouse can reserve them as separate property by a declaration made in authentic act or in act under private signature. Civil Code Art. 2346: Management of Community Property Each spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law. Civil Code Art. 2347: Alienation of Community Property; The concurrence of both spouses is required for the alienation, encumbrance or lease of community immovables, standing, cut, or fallen timber, furniture or furnishings while located in the family home. The concurrence of both parties is required to harvest the community timber 6.6 Liabilities which are Common or Separate Civil Code Art. 2359: Obligations; Community or Separate An obligation incurred by a spouse may be either community or separate. Civil Code Art. 2360: Community Obligation An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. Civil Code Art. 2361: Obligations incurred during Marriage All obligations incurred by a spouse during the existent of a community property regime are presumed to be community obligations. Civil Code Art. 2363 Separate Obligation A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime or one incurred during the existence of a community property regime though not for the common interest of the spouse or for the interest of the other spouse. CHAPTER 7: CAUSES FOR DIVORCE 7.1 Modes of Dissolution of Marriage 1. Termination of Marriage

1. Death of a spouse 2. divorce 3. declaration of nullity (only when relatively null) 4. judicial authorization to remarry if spouse is presumed dead Civil Code 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. Civil Code Art. 9:301 The spouse of a person presumed dead may petition the district court of the parish in which the petitioner is domiciled for authority to contract another marriage. Upon the submission of proof that the other spouse is presumed dead, the court may authorize petitioner to contract another marriage. The judgment of court authorizing the petitioner to contract another marriage has the effect of terminating the marriage to the person presumed dead if her is alive at the time. 7.2 The Development of Separation and Divorce Law 1808-1898 1. Divorce was not allowed only separation from bed and board - sometimes passed special acts for certain couples, but only for causes specified in advance by law and because of fault on the part of the other spouse 2. Declared that a person could obtain a divorce for same reason as separation - only the spouse who obtained separation (the one not at fault) can seek a divorce - one year separation 7.3 1898 - 1916 1. Act passed that one at fault in bringing common life to an end can obtain divorce - two years, then reduced to 1 year and 60 days and then reduced to 1 year - assuming no reconciliation 2. Spouse obtaining separation could sue for divorce in 1 year - other spouse could 1 year and 60 days 7.4 1916 - 1956 1. Either spouse could obtain divorce so long as they lived separate and apart for 7 years - fault was not an issue - period reduced to 4 years, then two years, then 1 7.5 1956 1991 1. Living apart and separate must be voluntary and without reconciliation - repealed to not include voluntary 7.6 1991 1997 1. Separation from bed and board eliminated - cooling off period

7.7 1997 Present 1. Covenant Marriage was introduced - mandatory pre-marital counseling - agreement to take reasonable steps to preserve the marriage - limited grounds for separation 7.8 Causes for Divorce for the Standard Marriage 1. Standard Marriage Grounds for Divorce 1. adultery 2. commission of a felony and a sentence to death or prison 3. filing a petition for lapse of 180 days living separate and apart 4. living separate and apart for 6 months prior to filing Civil Code Art. 102:Judgment for Divorce Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that 180 days have elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least 180 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. 7.9 Adultery 1. Adultery: voluntary sexual intercourse of a married person with a person other than the offenders husband or wife (Blacks Law) - Sexual intercourse heterosexual intercourse involving penetration of the vagina by the penis; coitus; intercourse involving genital contact between individuals other than penetration of the vagina by a penis (Webster) Civil Code Art. 103: Judgment of Divorce; other grounds Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that: (1) the spouses have been living separate and apart continuously for a period of 6 months or more on the date the petition is filed; (2) The other spouse has committed adultery; or (3) the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor. Case Law: 1. Arnoult v. Arnoult: Adultery is grounds for divorce and can be inferred from the facts and the credibility of the witnesses such as seeing the wife leave a bar late at night with a man on several occasions, hugging and kissing each other and going to each other houses and not turning on the lights. 2. Bennett v. Bennett: Even if unable to commit adultery due to impotence, the mere fact of desiring and trying to achieve it is considered adultery and grounds for divorce. 3. Menge v. Menge: Even though there was no sexual intercourse where the penis penetrated the vagina, according to Webster, oral sex can be considered sexual intercourse and therefore is an element of adultery.

7.10 Commission of a Felony and Sentence 1. Whether cause is based on: (1) the fact the spouse is guilty of serious crime (2) the fact that the innocent spouse will be deprived of a normal married life Case Law: 1. Nickels v. Nickels: Immediate divorce may be claimed for conviction of the other spouse of a felony and his sentence is death or imprisonment at hard labor and there is no time limit for the petition of divorce to be filed, so that a wife can file for a divorce at any time if her husband has been convicted of a felony and sentenced to hard labor for 10 years. 7.11 Living Separate and Apart for 6 Months 1. Living separate and apart includes: - different abodes - rupture of the common life - fault is not an issue - no mutual consent required Case Law: 1. Adams v. Adams: Living separate and apart continuously does not have to be voluntary and both parties do not have to be sane at the outset of the separation or thereafter, so if one spouse is committed to a mental institution, after 6 months the other can file a petition for divorce. 7.12 Living Apart From the Time of Filing Petition Case Law: 1. Parker v. Parker: A divorce action instituted under Art. 102 is abandoned if the rule to show cause provided by the article is not filed within two years of service of the original petition, so a divorce action will be abandoned if the husband filed a petition and then never filed a rule showing they lived apart for the 180 days. 7.14 Causes for Divorce and Separation in Covenant Marriages 1. Grounds for Divorce in the Covenant Marriage 1. adultery 2. Spouse committed felony and sentenced to death or hard labor 3. abandonment 4. Physical or sexual abuse the spouse or child 5. Living separate and apart for 2 years 2. Grounds for Separation habitual intemperance of the other spouse or cruel treatment that renders the common life insupportable spouse at fault ma not seek divorce unless lived apart for 2 years or one year or one year and six months if there are minor children of the marriage since the judgment of separation Civil Code 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 moveables or immovables; or use of personal property. CHAPTER 8: EXCEPTIONS FOR CAUSE OF DIVORCE 8.1 The Exceptions in General The sole exception to an action for divorce is RECONCILIATION The doctrine of Comparative Rectitude mutuality of fault Exceptions are relevant to grounds for divorce in: Standard marriage Separation Covenant marriage Fault Civil Code Art. 104 Reconciliation: The cause of action for divorce is extinguished by the reconciliation of the parties. 8.2 Reconciliation - Two Elements of Reconciliation: There is no article defining reconciliation 1. Forgiveness (innocent spouses forgiveness of the guilty spouse) or Willingness 2. Resumption of the common life -Grounds for Reconciliation: courts used to consider a single act of sexual intercourse to be reconciliation, but this lead to abuse of the law of divorce a clever spouse could entice the other to extinguish the cause of action discourages spouses who would want to be reconciled from placing himself in position where he would be deprived of his cause of action if reconciliation did not occur. - Case Law 1. Millon v. Millon: Reconciliation is the voluntary resumption or reestablishment of the relationship which formerly existed between the parties, but proof of one act or several isolated acts of sexual intercourse is not necessarily conclusive of reconciliation. One has to look at the intent of the parties and that intent is inferred from totality of the circumstances and when the wife claims that she only had sex with her husband out of force and was involuntary is not enough to consider the couple reconciled. 2. Jordan v. Jordan: Reconciliation is a matter of mutual interest and is to be determined from the intent of the parties. For example, intent of reconciliation can be inferred when the husband moves his clothes and personal belongings back into the marital domicile and the couple lived and acted like husband and wife for almost a year. 3. Lemoine v. Lemoine: Reconciliation must be established from a meeting of the minds, such as moving a spouses stuff in with the other spouse and occasional sexual encounters or going out in a sociable manner does not constitute reconciliation. Also, the husband spending the night with the wife on a couple of occasions and taking a few weekend trips may still be considered living separate and apart continuously for the purposes of obtaining a divorce. 4. Hickman v. Hickman: Reconciliation induced by fraud and deceit does not operate as a condonation.

5. Tablada v. Tablada: Reconciliation is an issue of fact and the parties must have the necessary intent coupled with acts to constitute reconciliation, but when the wife has conditions of reconciliation, such as marital counseling and ceasing he adulterous relationship and the husband does not comply with the conditions, there is no intent on his part to reconcile. 8.3 Mutuality of Fault Objective Fault: deals with the covenant marriage only when there has been a complete and total breach of the marital covenant may the non-breaching party seek a declaration that the marriage is no longer legally recognized Adultery and abandonment are not only grounds for immediate divorce for the covenant marriage Conviction of a felony and physical and sexual abuse represent a total breach of marital covenant 8.4 Connivance Doctrine of Connivance: the act of indulging or ignoring anothers wrongdoing Ex: Ignoring the fact that your spouse is having an affair As a defense for divorce, one spouses corrupt consent to have the other commit adultery Consent is an essential element Suits for divorce can be barred if husband consented to have his wife transgress (Schwartz v. Schwartz) 8.5. Excuse due to Mental or Psychological Disorder Case Law: 1. Courville v. Courville: Misconduct can be considered excusable to the extent that it was involuntarily induced by a mental illness and can excuse a spouse from fault of separation. For example, both parties can be considered free from fault if the wifes conduct was caused by an existing mental illness which required hospitalization and the husbands conduct was only committed in self-defense. 2. Seltzer v. Seltzer: Actions, such as cruel treatment or adultery that would normally be construed as fault for divorce are excused when involuntarily induced by a pre-existing mental illness. However, the illness must be shown to have caused the behavior and if the wife cannot show that her sickness caused her to commit adultery because at the time of the act, her illness had improved, then she is at fault. To be at fault for abandonment, the erring party must leave the marital domicile without lawful cause, but mutual incompatibility and general unhappiness with a relationship are not lawful causes for abandonment. 3. Doane v. Benenate: Jurisprudence requires that mental illness pre-date the misconduct and reconciliation that follows the misconduct negates the fault because the effect of reconciliation between the spouses is to wipe the slate clean, so when the parties reconcile after a wifes mental breakdown and lived together as a couple for 6 years after her alleged fault, reconciliation has negated the cause for divorce. CHAPTER 9: DIVORCE JURISDICTION AND PROCEDURE 9.1 Judicial Proceeding Required although legislation does not expressly state that a judicial proceeding is required for divorces, it is presupposed that a judicial proceeding is required. 9.2 Special Rules for Divorce Proceedings

1. The granting of judgments on the pleadings and summary judgments without a hearing in an action for divorce under 103(1) if : - all of the parties are represented by counsel - counsel for each party files a written joint stipulation of facts, requests for judgment, and sworn verification of each party - counsel for each party files a proposed judgment containing a certification that counsel and parties have agreed. 2. Art. 1733 attempts to avoid divorces being granted in instances where legal cause does not exist by forbidding trial by jury in such cases. 9.3 State and Federal Judicial Jurisdiction 1. States have judicial as well as legislative jurisdiction over divorce suits 9.4 Interstate Jurisdiction Case Law: 1. Williams v. North Carolina: A state must give full faith and credit to a divorce that was granted in another state and divorce is not an exception to the full faith and credit clause, such as North Carolina must recognize a divorce obtained in Nevada. 2. Williams v. North Carolina: A court in a state must give full faith and credit to a divorce obtained in another state, yet that court is entitled to reexamination and review of that decision. Full faith and credit does not foreclose reexamination in that North Carolina can look at the time period and intent to remain as factors of domiciliary. 3. Sherrer v. Sherrer: A case involving inconsistent assertions of power by courts of two states presents considerations that go beyond the interests of local policy. The respondent got his day and court and showed up and didnt contest any of the issues. Therefore all of the relevant issues were litigated, however, Massachusetts has the power to reexamine. 4. Johnson v. Muelberger: A stranger child is not permitted to collaterally attack a divorce because the child has a mere expectancy at the time of the divorce. The states must give full faith and credit to an out of state divorce by barring either party to that divorce, especially if showed up and were there in some way, it would be res judicata. 5. Tjaden v. Tjaden: Domicile requires a physical presence in the state, living there for at least 6 weeks prior to the divorce and intent to remain in the state indefinitely. Intent can be determined from a persons actions. For example, when a wife goes to Nevada to move in with her family and establishes a home there for at least three months and there was no intent to remain in the state where the husband lives, that is domicile. 6. Succession of Talmadge: A defendant participates in a proceeding by entering an appearance which can consist of filing a plea, answer or demurrer. It is also appearance by signing and filing an instrument entering ones appearance, such as when the wife signs the divorce papers, knowing they are divorce papers and knowing their legal effects, it constitutes appearance. 9.5 Louisiana Assertions of Judicial and Legislative Jurisdiction for Divorce and for Separation in a Covenant Marriage

1. Louisiana will entertain a suit for divorce if either or both spouses are domiciled here at the time of the filing. - there is a rebuttable presumption of domicile if a spouse has established residence in Louisiana for six months. - permits a non-domiciliary to claim a claim of divorce against a domiciliary of LA by application of LA law. Case Law: 1. Salvatierra v. Calderon: Domicile is where a citizen establishes his habitual residence. All courts shall be open and every person shall have adequate remedy by due process of law and non immigrant visitors on visa are not precluded from establishing a domicile. For example, a wife in the state on a diplomatic visa from Costa Rica can establish a domicile in LA buy buying a house and leaving her law practice at home for her daughter. 9.6 Intrastate Jurisdiction (interparish) 1. Louisiana substantive law on divorce and nullity of marriage are applicable to LA persons in whatever parish they are domiciled. - parish domicile does not affect the law to be applied to spouses 2. Intrastate and interparish domicile is important for interparish jurisdiction. - absolutely null judgment of divorce decreed in a parish other than the (1) the domicile of one of the spouses, or (2) the last matrimonial domicile of the spouses. 9.7 Procedure for Divorce under C.C. Art. 102 1.Procedure for Divorce for filing a petition plus 180 day waiting period - petition must allege jurisdiction and venue and verify the petitioner by affidavit. - defendant spouse may file a petition in same or another court of proper jurisdiction and venue - special notice form required to be served with copy of petition 2. If no action is taken after the filing of petition for two years, it is deemed abandoned without formal action 9.8 Appeals 1. Appeals from a judgment granting or refusing divorce are suspensive - must be taken within 30 days of the expiration of the time for applying for a new trial, refusal to grant new trial or mailing of notice of such refusal CHAPTER 10: THE PROVISIONAL AND INCIDENTAL PROCEEDINGS FOR DIVORCE AND NULLITY 10.1 List of Provisional and Incidental Proceedings in Divorce and Nullity Suits 1. custody 2. visitation 3. support for children 4. support for the spouse 5. injunctions

6. use and occupancy of the family home or property 10.2 Custody of Children of the Marriage 1. During marriage and before judgment of a divorce, both parents enjoy parental authority over the unemancipated minor children of the marriage - maternal preference rule: in the best interests of the child, custody will be awarded to the mother unless she is morally unfit or otherwise (before 1977) - child is required to have a tutor 2. Custody: two components - physical custody actual time spent with the parents - legal custody involves the decision making of the child - in joint custody, both parents share the responsibility and make decisions concerning education, medical care etc. Civil Code 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. Civil Code Art. 132: Award of Custody to Parents If the parties 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. Civil Code Art. 133: Award of Custody to Person other than Parent 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 wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment. Civil Code Art. 134: Factors in Determining Childs 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 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 sufficient age to express a preference

care

(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. Civil Code Art. 135: Closed Custody Hearing A custody hearing may be closed to the public Case Law: 1. Creed v. Creed: If joint or sole custody is not in the best interest of the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment or someone able to provide such environment, such as the paternal grandparents. There is a two-prong test to determine custody of a nonparent; (1) award of custody to parent would be detrimental to the child and (2) award to nonparent would be in best interest of the child. However, although a mother moves several times and gets into financial trouble, the best interest of the child is to be with the mother because they are well cared for, loved, healthy, and nourished. 2. Evans v. Lungrin: Joint custody means that the parents shall share the physical custody of the children and shall be shared equally. When a parent is seeking to modify a custody agreement, they must prove that (1) there has been a material change of circumstances since the original custody decree, such as one parent moving to another state, and (2) the proposed modification is in the best interest of the child, such as joint custody not being in the best interest of a four month old when the parents live far away from each other because a child of that age needs consistency. 3. Lundin v. Lundin: Homosexuality may not require a determination of moral unfitness so as to deprive the homosexual parent of joint custody, especially since the lesbian mother would give up her relationship to protect and shield her son. 4. Simmons v. Simmons: There is a rebuttable presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody. Family violence includes physical or sexual abuse or any offense against the person defined in the Criminal Code, however, and isolated act where a husband gets in a fight with his wife and hits her once because of her affair with another man may not be considered a history and the court must look at the entire chronicle of the family. 5. Lewis v. Lewis: There are some factors that the court must consider to determine a history of family violence: number, frequency and severity of the violence and they must look at whether the acts of violence occurred in the presence of the children, so that when a husband beats his wife on several occasions to the extent that she had to go to the hospital and this happened repeatedly, it is considered a history of family violence. 10.3 Visitation: Parents and Third Parties Civil Code Art. 136: Award of Visitation Rights 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. 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 parents. (5) the mental and physical heath of the child and the relative

1. Visitation Rights: parents may be denied visitation under extreme circumstance such as sexual or physical abuse - even if visitation is allowed, it can be subjected to restrictions Case Law: 1. Gaskin v. Gaskin: A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds that visitation would not be in the best interest of the child and visitation is always open to changes when conditions warrant it, so that when a father is placed on restrictions due to sexual abuse and he complies with the restrictions and would do anything to have visitation with the child, those restrictions should be lifted. 10.4 Change of Custody Case Law: 1. Bergeron v. Bergeron: The court developed several jurisprudential precepts; (1) the best interest of the child principal, (2) the maternal preference rule, (3) the change in circumstances rule, (4) the heavy burden of proof for modification of custody rule and (5) the appellate review. 10.5 Relocation of Parent 1. Relocation: if the parents have equal joint custody, notice must be given of relocation - no relocation can occur until the court authorizes or written consent of the other parent is given Case Law: 1. Curole v. Curole: The decision of relocation is based on the best interest of the child and the parent wishing to relocate the child must notify the other parent of the proposed relocation by registered or certified mail within a certain time period and it is determined not in the best interest of the child for the mother to relocate to a state far away from the father so that the chance of preserving a relationship at that distance is remote 10.6 Support for Children 1. Rights of Children: have a right against each parent for his or her proper share of their total right to support - granted in proportion to the wants of the person requiring it - standard of living the child enjoyed while family was intact - a parent is not excused of obligation if his inability to pay results from his own willful or negligent act

2. Three Prong test to determine if court should deviate from guidelines 1. whether the visitation was extraordinary 2. whether extra time spent was a financial burden 3. best interest of the child 3. Gross Income: the income from any source, including but not limited to salaries, wages, commissions, bonuses and dividends - it does not include extraordinary overtime or income attributed to seasonal work - Walden v. Walden Civil Code Art. 141Child Support; Authority of Court In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support. The court may award an interim allowance only when a demand for final support is pending. Civil Code Art. 142: Modification or Termination of Child Support Award An award for child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become necessary. Case Law: 1. Walden v. Walden: An award of child support may be modified if the circumstances of the child or the parent change and shall be terminated upon proof that it has become unnecessary. An award for support shall not be reduced or increased unless the party seeking change shows a change in circumstances, such as a change in job that does not require him to take on as much voluntary overtime, but he makes less money. 2. Piccione v. Piccione: If the parents combined gross income exceeds $10,000 for the month, it is at the courts discretion to make the payment schedule while they consider the needs of the child and the fact that the child is entitled to the same standard of living as when the couple was married. However, there is no universal mathematical formula for calculating child support. 3. Stogner v. Stogner: An award for support shall not be increased or reduced 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 the motion is filed. A change in circumstances is considered a change material to the well being of the child and his or her support that has occurred. 4. Toups v. Toups: Obligations may be reduced only when the person who gives or receives alimony is placed in such a situation that the one can no longer give, or that they are no longer in need of it, but when a person commits a voluntary act, that act cannot be used to justify the extinction of a protected right like child support, regardless of the temporary nature of the situation, hence when a father commits several counts of mail fraud and is sentenced to a federal prison for 2 years. 10.9 Waiver of Future Child Support 1. Waiver of Support: a spouse can not contract to waive the obligation of future child support - it is a matter of public order or policy

- deals with a third party, a child Case Law: 1. Dubroc v. Dubroc: Alimony is what is necessary for the nourishment, lodging and support of the person who claims it. To allow a parent to suspend his right to receive child support payments under circumstances contrary to the childs interest, would be inmincal to the ultimate goal of support, but if the parties clearly agree to suspend and it does not interrupt the childs maintenance, it should be enforceable. 10.10 Support for a Spouse Civil Code Art. 111: Spousal Support; authority of the court In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or maw award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of the party and the ability of the other party to pay. Civil Code Art. 113: Interim Spousal Support allowance pending final spousal support award Upon a 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 support award shall terminate upon the rendition of a judgment awarding or denying final spousal support or 180 days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim support may extend beyond 180 days from the rendition of judgment of divorce, buy only for good cause. -An interim spousal support may be modified and a final spousal support may be modifiedbased on my needs and the ability of the other party to pay. Can parties waive interim spousal support? A party cannot waive interim spousal support. A court can award it when a final spousal support is pending or upon a motion. But actually CANNOT waive interim spousal support because the divorce has not happened yet, you are still married, this is still your obligation. Personal effects (f,s,a) are a matter of public policy. -Final spousal may be waived-authentic act or act under private signature. Civil Code 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. Civil Code Art. 117: Peremptive Period for Obligation 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 the 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 3 years after. (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.

10.11 Interim Allowance (Alimony Pendente Lite) 1. Alimony Pendente Lite: interim periodic allowance available to a spouse upon the motion of a party or when a demand for final support is pending. - continues to be discretionary and is granted based on the needs of the spouse - the ability of the other spouse to pay - standard of living of the parties during marriage Case Law: 1. Arrendell v. Arrendell: Maintenance means the style or manner of living enjoyed by the spouses while they lived together. Alimony pendente lite is to temporarily provide for the spouse who does not have sufficient income for his or her maintenance, such when a wife did not for three years while married and had several years of college and grades, but did not graduate.

work made good

2. Alexander v. Alexander: Alimony pendente lite may be awarded by a court based on the needs of the party seeking support, the ability of the other spouse to pay and the standard of living of the parties during marriage, therefore, the alimony may not be awarded to a wife who is getting monetary help and free board from her parents and the husband has substantial community debts. 3. Roan v. Roan: An award for interim support may be extended, but good cause must be shown and good cause is shown on a case by case basis and is certainly a reason of such significance and gravity that it would be inequitable to deny an extension of support. However, if the wife never files a motion to extend the support and good cause is not shown, there will be no extension. -Holiday case 10.12 Spousal Support After Divorce Civil Code Art. 112:Determination of Final Periodic Support The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include: (1) the needs of the parties (2) the income and the means of the parties, including the liquidity of such means (3) the financial obligations of the parties (4) the earning capacity of the parties (5) the effect of custody of children upon a partys earning capacity (6) the time necessary for the claimant to acquire appropriate education, training or employment (7) the health and age of the parties (8) the duration of the marriage (9) the tax consequences to either or both parties The sum awarded under this article shall not exceed one third of the obligors net income. -112: look at future earnings of a party, not just what they have now, but all of your stuff. But for interim spousal support, just look at what I have now, currently. But for final support, look at means of the party, health and age of the party, duration of the marriage. Case Law:

1. Loyacano v. Loyacano: The wife must be without sufficient means for her maintenance which includes food, clothing, shelter, reasonable transportation, and medical and drug expenses to be eligible for alimony, which includes both income and property, so when a wife has $46,000 and some of the assets were susceptible to liquidation, she is entitled because she has some means, but not a lot. 2. Chatelain v. Chatelain: While the statute directs that the liquidity of assets be considered by the courts in determining modifications in alimony awards, the court is not limited in considering and weighing all relevant factors, so considering an older aged wife of 70 who is ill and not able to rehabilitate although she sold her home for cash does not warrant a reduction in an alimony award. 3. Allen v. Allen: A spouse who reacts should not be precluded from receiving alimony solely because of his or her response. Petty quarrels between the parties do not rise to the level of legal fault and a spouse in poor health is entitled to special considerations. A disagreement over expenses, such as the payment for a daughters wedding and a difference of opinion over charitable donations do not constitute fault. 4. Lagars v. Lagars: Fault is any conduct or acts of commission by the spouse violative of her marital duties. To constitute fault, the misconduct must not only be of serious of nature but must also be an independent contributory cause of the separation. 10.13. Waiver of Future Final Spousal Support Civil Code 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. Case Law: 1. McAlpine v. McAlpine: A waiver of permanent alimony does not deprive a spouse of his or her ability to support herself and therefore is not a burden of the state, so when a wife signs a contract waiver any permanent alimony if a divorce should occur is binding because permanent alimony is a law to protect individuals and is not for public policy and is susceptible to waiver. 10.14 Change in Spousal Support Amount 1. Change in Support: may be terminated if becomes necessary and modified if circumstances change - extinguished if the spouse receiving it remarries or cohabits with another person of either sex - also may be increased if the needs increase or the others ability to pay increases Civil Code Art. 114: Modification or Termination of Award for 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. Case Law: 1. Mitchell v. Mitchell: A party seeking to alter an alimony award must show a change in circumstances of either party from the time of the award to the time of the alimony rule. Permanent periodic support shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage. However, voluntary retirement alone does not warrant a change in alimony especially when the wifes income has involuntarily been reduced.

2. Mizell v. Mizell: An award of alimony is never final and can be modified if the party proves a change in circumstance. However, jurisprudence clearly does not allow the support of major children to be considered a living expense even when they do not contribute to the household bills and the mother has to pay for the major childs food. 10.15 Claims for Contributions to a Spouses Education or Training 1. Financial Contributions: direct educational or training expenses paid by the claimant for the other spouse, such as tuition, books and school fees - contributions made to satisfy the living expenses of the supported spouse 2. Formula: working spouses financial contributions to joint living expenses and education costs of student spouse (working spouses financial contributions + student spouses financial contributions cost of education) = equitable award to working spouse Civil Code Art. 121: Claim for Contributions to education or training In a proceeding for divorce or thereafter, the court may award a party a sum for his financial contributions made during marriage to education or to training of his spouse that increased the spouses earning power, to the extent that the claimant did not benefit during the marriage from the increased earning power. The sum awarded may be in addition to a sum for support and to property received in the partition of community property. Civil Code Art. 122: Nature of Action The claim for contributions made to the education or training of a spouse is strictly personal to each party. Civil Code Art. 123: Form of Award; effect of remarriage or death The sum awarded for contributions made to the education or training of a spouse may be a sum certain payable in installments. The award shall not terminate upon the marriage or death of either party. Civil Code Art. 124: Prescription of Spousal Claim for Contributions The action for contributions made to the education or training of a spouse prescribes in three years from the date of the signing of the judgment of divorce or declaration of nullity of the marriage. Case Law: 1. McConathy v. McConathy: The court may award a spouse a sum for his or her financial contributions made during the marriage to education of his or her spouse that increased the spouses earning power to the extent that the claimant did not benefit during the marriage from the increased earning power. Financial contributions include direct educational or training expenses paid by the claimant for the other spouse and financial contributions made to satisfy living expenses. However, a contribution such as trailer payments made by one of the parents of the spouses is not included in the award because considered a gift. 2. Bourgeois v. Bourgeois: Factors that should be considered in determining if an award is warranted include: (1) the claimants expectation of shared benefits when the contributions were made, (2) the degree of detriment suffered by the claimant in making the contributions, and (3) the magnitude of the benefit received by the other spouse. However, a contributing spouse is not entitled to reimbursement if they benefit from their spouses increased earning power, so a wife

who pays for her husbands law school is not entitled to an award when his salary increases and he was able to buy new cars, a new apartment, upgrade her ring and give her plastic surgery. 10.16 Injunctions Issuable Against a Spouse 1. Personal Property: for the purposes of an order for a spouse to obtain their stuff from the marital domicile (1) items of personal wearing apparel belonging to the petitioner or any children in the custody of that spouse (2) food and eating utensils necessary for the nourishment of the petitioning spouse and any children in the custody of the spouse (3) any other item deemed necessary for the safety and well-being of the petitioning spouse and any children in the custody of the spouse Civil Code 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. Case Law: 1. Lawrence v. Lawrence: In a proceeding for divorce, a court may grant an injunction prohibiting a spouse from harassing or physically or sexually abusing the other spouse or a child of either of the parties. An injunction not mentioned in the proceeding for separation or divorce is extinguished by law 10.17 Use and Occupancy of the Family Residence, Immovables and Movables 1. Either spouse may petition for the use and occupancy of the residence after the filing of a petition for divorce. - if residence is separate property, the petitioning spouse must have physical custody or temporary custody of the children - if residence is community property, the award lasts pending further order of the court 2. Factors the court considers: 1. custody of the children 2. the need of one spouse for funds to maintain a household prior to formal partition 3. the need of a spouse to received legal representation 10.18 Provision Proceedings in Covenant Marriages 10.19. Provisional Proceeding in Nullity Suits Civil Code Art. 151: Proceeding for Declaration of Nullity In a proceeding for declaration of nullity of a marriage, a court may award a party incidental relief afforded in a proceeding for divorce. Civil Code Art. 152: Proceeding for Declaration of Nullity of a Marriage 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. the

Incidental relief granted pending declaration of nullity to a party not entitled to the civil effects of a marriage shall terminate upon the declaration of nullity. Nevertheless, a party not entitled to 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. CHAPTER 11: JURISDICTION IN PROVISIONAL PROCEEDINS 11.1 Interstate Judicial Jurisdiction in Support Cases 1. Suit for Support: one for money judgment - defendant may be sued in his domicile state or where he can be served - arrearages of accrued alimony which are not subject to revision are enforceable in every state 2. Burnham v. Superior Court: a court can exercise personal jurisdiction in a divorce proceeding bases solely on its ability to personally serve the defendant - when the defendant voluntarily enters a jurisdiction, the local court may exercise jurisdictional based solely on its ability to serve the defendant personally. - no other contract is necessary 3. Child Support Enforcement Amendment of 1984: made federal funding for welfare and other social service benefits dependant on states adopting the required child support enforcement measures - made pertinent federal agencies available to the state for support enforcement 4. Proving Paternity (new cause of action): Dept. of Health and Human Resources may take direct civil action against the alleged biological parent - can be done in a court of competent jurisdiction and without written assignment, tutorship proceedings or divorce proceedings 5. Criminal Neglect: failure to support a child - criminal sanctions can be imposed for parents who dont support their children - intentional non-support 6. Contempt: an act or failure to act that is done intentionally, knowingly and purposefully, without justifiable excuse 11.2. Uniform Child Custody Jurisdiction Act 1. Four Bases upon which a court would have Jurisdiction under the Uniform Custody Jurisdiction Act: 1. The state is the home state of the child at the time of commencement 2. It is in the best interest of the child that a court assume jurisdiction 3. The child is physically present in the state and the child has been abandoned or it is necessary in an emergency to protect the child 4. It appears that no other state would have jurisdiction 2. Notice: shall be given to the contestants, any parent whose parental rights have not been previously terminated - any person who has physical custody of the child 3. Simultaneous Proceedings: when a suit is pending in another states court - LA shall not exercise jurisdiction if at the time of the filing, a proceeding is pending in a court of another state

- if the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state, it shall stay and communicate with the court in which the other proceeding is pending until the end of litigation of that issue 4. Modification of Decree of Another State: LA cannot modify a custody decree unless it appears to the court that the original court which rendered the decree does not have jurisdiction under the prerequisite Case Law: 1. Kelly v. Gervais: A LA court generally does not have jurisdiction based on mistreatment of a child living in Canada, however if the situation is so extreme that the immediate safety of the child is threatened, such as a father leaving the child alone, not feeding him and not morally guiding him, the LA court has jurisdiction to take evidence to this limited extent. 2. Stanley v. Stanley: Jurisdiction belongs to the state with the maximum contacts with the son. In order for LA to establish jurisdiction, it had to be shown that it had the most contact with the state, but the only contact the son had with LA was his father and he only visited the state a few times. 11.3 Parental Kidnapping Prevention Act (PKPA) 1. Parental Kidnapping Prevention Act: the act only applies in abduction cases or concealment of the minor child issues Case Law: 1. Shamp v. Jezek: If the court grants authorization to relocate, the court may retain continuing exclusive jurisdiction of the case after relocation of the child as long as the nonrelocating parent remains in the state, however in this case there was no stipulation that jurisdiction was to remain in LA because there was no challenge to the relocation of the child. CHAPTER 12: THE EFFECTS OF DIVORCE AND NULLITY OF MARRIAGE 12.1 General Distinctions 1. Effect of Absolutely Null Marriage: places parties in same position as if they had not even attempted the marriage - declares the parties were never married to each other 2. Separation From Bed and Board in covenant marriage: has the same effect as judgment for divorce - leaves the spouses married to each other - puts an end to their conjugal cohabitation and common concerns which existed between them 12.2 Patrimonial Effects of Divorce and Separation in a Covenant Marriage 1. Effects of Judgment for Divorce: puts an end to conjugal cohabitation - termination of community regime retroactively from the date of filing the suit - same effects as judgment of separation from bed and board in covenant marriage 12.3 Succession Rights 1. Marital Portion: extends to relatively poor spouse who survives a relatively rich spouse - judgment of divorce terminates the rights of husband and wife as heirs of each other

12.4 Change of Name 1. Change of Name: if widowed, divorced, or remarried, a woman may use her maiden name, the surname of her deceased or former husband or a hyphenated combination of both 12.5 Effect of Divorce or Separation Judgment on Interspousal Bar to Suit 1. Doctrine of Interspousal Immunity: suits between spouses have traditionally been prohibited - suits disrupt domestic tranquility and the family unit - once the marriage ends, no longer valid policy - the time of the judicial proceedings which controls the application of the doctrine 12.6 Effects of an Absolutely Null Marriage Incidental relief granted pending declaration of nullity to a party not entitled to the civil effects of the marriage end upon declaration of nullity EXCEPTION: a party not entitled to the civil effects may be awarded custody, child support, or visitation 12.7 Both Spouses in Good Faith If both parties are in good faith then all the effects of a valid marriage follow, including spousal support. - judgment of nullity then has the same effect generally as if it had terminated a valid marriage 12.8 One Spouse only in Good Faith If only one spouse is in good faith, the effects of a valid marriage will flow in his favor and in favor of a child of the parties - nothing the good faith spouse would have contributed to the community should enter into it at all - half of what the spouse in bad faith would have contributed would be awarded to the good faith spouse - children born of the null marriage are legitimate as they would be if the marriage were valid 12.9 Effect of Subsequent Bad Faith Civil effects of a marriage remain as long as the party remains in good faith, however the exception is ones prior undissolved marriage. -you would get your whole community from first marriage, but not from second. If 50,000, then bad faith gets only 12,500. half of what he contributed. Civil Code Art. 159: Effect of Divorce on Community Property Regime A judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered. The retroactive termination of the community shall be without prejudice to rights of third parties validly acquired in the interim between the filing of the petition and recordation of the judgment -status of children born of a putative marriagethey are legitimate. CHAPTER 13: BIOLOGICAL FILIATION 13.1 Filiation in General

1. Filiation: by consanguinity or by adoption - child born outside of marriage may be legitimated by the marriage of his parents after birth and their acknowledgment of the child or by declaration of a parent in authentic act that he wills to have the child considered born of the marriage 2. Acknowledgment: child born outside of marriage may be acknowledged by one or both parents - by authentic act of the parent declaring his or their parentage or in the registering of the birth or baptism Civil Code Art. 178: Classification of Children Children are either legitimate or illegitimate. Civil Code Art. 179: Legitimate Children Legitimate children are those who are either born or conceived during marriage or who have been legitimated as provided hereafter. Civil Code Art. 180: Illegitimate Children Illegitimate children are those who are conceived and born outside of marriage. Civil Code Art. 181: Legitimation Illegitimate children may be legitimated in certain cases, in the manner 13.2 Presumption of Husband is Father Civil Code Art. 184: Maternity Maternity may be established by a preponderance of evidence that the child was born of a particular woman, except as provided by law. Civil Code Art. 185: Presumption of Paternity as Husband The husband of mother is presumed to be the father of a child born during the within 300 days from date of termination of the marriage. marriage or prescribed by law.

Civil Code Art. 186: Presumption if Child is born after divorce or after death of husband; effect of disavowal If a child is born within 300 days from the day of termination of marriage and his mother has married again before birth, the first husband is presumed to be the father. If the first husband or his successor obtains a judgment of disavowal of paternity of the child, the second husband is presumed to be the father. The second husband or his successor may disavowal paternity if he institutes a disavowal action within a preemptive period of 1 year from the day the judgment of disavowal obtained by first husband is final and definitive. Civil Code Art. 187: Disavowal Action The Husband may disavow paternity of the child by clear and convincing evidence that he is not the father. The testimony of husband shall be corroborated by other evidence. Civil Code Art. 188: Disavowal Precluded in case of Assisted Conception Husband of mother may not disavow a child born to his wife as a result of an conception to which he consented. Civil Code Art. 189: Time Limit for Disavowal by Husband assisted

The action for disavowal of paternity is subject to a liberative prescription of 1 year. This prescription commences to run from the day husband learns or should have learned of birth of the child. Nevertheless, if the husband lived separate and apart from the mother continuously during the 300 days immediately prior to the birth of the child, prescription does not commence to run until husband is notified in writing that a party in interest has asserted that the husband is the father of the child Civil Code Art. 190: Time Limit for Disavowal by Heir If the prescription has commenced to run and the husband dies before the prescription has accrued, his successor whose interest is adversely affected may institute action for disavowal. The action of successor is subject to liberative prescription of 1 year. If the prescription has not yet commenced to run, the action of successor is subject to a liberative prescription of 1 year. This prescription commences to run from the day the successor is notified in writing that a party in interest has asserted that the husband is the father. Civil Code Art. 191: Contestation and Establishment of Paternity by Mother The mother of a child may institute an action to establish both that her former husband is not the father of the child and that her present husband is the father. This action may be instituted only if the present husband has acknowledged the child by authentic act or by signing the birth certificate. Civil Code Art. 192: Contestation Action; Proof The mother shall prove by clear and convincing evidence both that her former husband is not the father and that her present husband is the father. Testimony of mother shall be corroborated by other evidence. 13.3 The Child Without Registry or Reputation as Child Born of the Marriage Louisiana decisions uniformly consider the husband as the father of a child born during marriage who has neither registration nor baptism as the husbands child Civil Code Art. 193: Contestation and Establishment of Paternity; Time Period The action by the mother shall be instituted within a preemptive period of 180 days from the marriage to her present husband and also within 2 years of the birth of the child. Civil Code Art. 194:Judgment in Contestation Action A judgment shall not be rendered decreeing that the former husband is not the father of the child unless the judgment also decrees that the present husband is the father of the child Civil Code Art. 195: Presumption by Marriage and Acknowledgement; A man who marries a mother of a child not filiated with another man and who with the concurrence of the mother, acknowledges the child by authentic act or by signing the birth certificate is presumed the be the father of the child The husband may disavow paternity as provided in article 187. Civil Code Art. 196: Formal Acknowledgment; Presumption A man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man. The acknowledgement creates the presumption that the man who acknowledges the child is the father. The presumption can be invoked only on behalf of the child. Except in those

cases handled by the Dept. of Social Services, the acknowledgment does not create the presumption in favor of the man who acknowledges the child. In those support and visitation cases handled by the department, the acknowledgment is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and establish visitation without the necessity of obtaining a judgment of paternity. Civil Code Art. 197:Childs Action to Establish Paternity A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence. Civil Code Art. 198: Fathers Action to Establish Paternity A man may institute an action to establish paternity of a child at any time except as provided by this Article. The action is strictly personal. If the child is presumed to be the child of another man, the action shall be instituted within one year of the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day when the father knew or should have known of his paternity, or within ten years from the day of the birth of the child whichever occurs first. In all cases, the action shall be instituted no later than one year from the day of the death of the child. 13.4 Registry or Reputation Barring Disavowal, An Opinion 13.5 Occasion for Disavowal. The Civil Code Provision The husband of the mother or his heirs or legatees may disavow paternity of the child of his wife if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father. If the husband of the mother erroneously believed because of misrepresentation, fraud or deception by the mother, that he was the father of the child then the time period for filing a disavowal action is suspended during the period of such erroneous belief or for ten years, whichever ends first. 13.6 Decisions and Commentaries on Disavowal Case Law: 1. Mock v. Mock: The husband can disavow paternity of a child if he can prove by preponderance of the evidence any facts, such as blood tests, proof of sterility or remoteness of father from mother that make cohabitation unlikely at the probable time of conception, which reasonably indicate that he is not the father of the child, such as proving that he did not have sex with the mother at the time of the conception, but the sister claims he was living with her at the time of the childs conception. 2. Pounds v. Schori: A man may establish paternity of a child presumed to be the child of another man. This action is instituted within two years from date of birth, but if the mother in bad faith deceived the father regarding paternity, the action shall be instituted within one year from the date the father knew, but no more than 10 years.

3. Smith v. Smith: There is only 6 months after being put on notice to file a petition to disavow paternity and the husband of the mother is presumed to be the father of the child, so even when the father is in jail when being put on notice and the mother is living with another man at the time, he is still presumed to be the father and must file within 6 months. 13.7. Filiation of Children Born Outside of Marriage in General A child born outside of marriage establishes filiation, the biological link to a parent, by legitimation, formal acknowledgment or a judgment recognizing him as the child of the named parent. 13.8 Constitutional Backdrop A state statute could require exacting proof of paternity of the illegitimate child. 13.9 Kinds of Acknowledgment 1. Acknowledgment: by authentic act or in the registry of birth or baptism - the code requires in the authentic act of acknowledgment the social security numbers of the father and mother and all minimum requirements specified by the secretary of the U.S. Dept. of Health and Human Services 13.10 Acknowledgment of Deceased Children 13.11 Informal Acknowledgment 1. Informal Acknowledgment: originally the product of jurisprudence 13.12 Legitimation Through Marriage of the Child Born Before Marriage Marriage of the actual parents, plus acknowledgment by each of them that the child born before marriage is the child of both of them, operates to legitimate a child. All children born outside of marriage are acknowledged before such marriage. Case Law: 1. Chatelain v. State of LA, Dept. of Transportation: The child with a biological connection to the tort victim, whether a legitimate, legitimated or illegitimate child, has the right to bring an action for wrongful death and survival damages. For legitimation, there are two requirements: (1) there must be a marriage subsequent to the childs birth between the biological father and the biological mother of the child, and (2) there must be an acknowledgment of the child by the parents. Marriage without acknowledgement is insufficient to establish legitimation by subsequent marriage. 13.13 Legitimation by Authentic Act 13.14 Judgment Establishing Filiation 1. Blood Testing: used to either to exclude the possibility of paternity of an alleged father or if he is not excluded by the evidence, to calculate the odds that the defendant would have passed the disclosed genetic markers to a child - DNA testing allows proof of paternity either while the father is alive or posthumously

- must meet substantive and procedural due process standards - proof of paternity must be made by preponderance of the evidence (more probably than not) 2. Paternity Index: the probability that a cross between the defendant and the mother would produce an offspring with the childs phenotypes and the corresponding probability for a random selection of genes from the male population Case Law 1. State v. Johnson: A certified blood or tissue sample which indicates by 99.9% threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity 13.15 Dual Paternity 1. Filiation: the act of fixing paternity, that is, of identifying a specific man as the biological father of a specific child. - the main concern is with proof Case Law: 1. Smith v. Cole: When the biological fathers have shown an actual relationship with the illegitimate child, biological fathers have received substantial protection and recognition of their due process and substantive rights. If the presumption was irrebuttable, biological fathers would be deprived the right to develop a relationship with their child. Biological fathers are allowed to bring avowal actions despite the presumption. 2. Gnagie v. Dept. of Health and Human Services: A childs birth or conception during marriage creates the presumption that the husband of the mother is the father. Gnagie was married to the mother at the time of the birth of the child and he never filed an action to disavow paternity, therefore he became the legal father of the child. However, it is the actual relationship with the child that demonstrates a commitment to the responsibilities of parenthood and has been the focal point to determine the rights afforded the natural fathers. Thus, a biological father who knows about the child and fails to assert his rights as a father cannot later assert paternity. 13.16 Children of Null Marriages 1. Minority Report Recommendations: 1. All legal relations between the sperm donor and the child should be terminated when an unmarried woman is inseminated, absent an agreement by the parties prior to the procedure, to the contrary. 2. Gestation surrogacy contracts whereby one woman agrees, for valuable consideration, to carry and give birth to a child created with the genetic material of another woman, should be enforceable when medical reasons preclude the woman who provides the egg to carry the child. CHAPTER 14: FILIATION BY ADOPTION 14.1 Filiation by Adoption in General 1. Filiation by Adoption: places the adoption person in the family of the adopting person and terminates legal filiation by consanguinity between the adopted person and his relatives - except with regard to the adopted persons right to inherit from them

Civil Code Art. 214: Reciprocal Rights and Duties of Adopter and Adopted A. Married persons must concur in the adoption of another person. One of them cannot adopt without the consent of the other. B. The adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent or parents, including the right of the adopted person or his lawful descendants to inherit from the adoptive parent or parents or the relatives of the latter by blood or by adoption to inherit from the person adopted or his lawful descendants, in the same manner and to the same extent as if the person adopted parent or parents. The adopted child is a forced heir to the same extent as other children. C. If the adoptive parent is married to a blood parent of the adopted person, the relationship of that blood parent and his blood relatives to the adopted person shall remain unaltered and unaffected by the adoption. Otherwise, upon adoption: the blood parents and all other blood relatives of the adopted person, except as provided by Ch.C. art. 1264, are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, including the right of inheritance from the adopted person and his lawful descendants; and the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them. 14.2 Adoption. Nature, Kinds and General Effects 1. Adoption: the legally authorized acceptance of another, not then ones child born of marriage, into filiation as if ones such child - has the effect of terminating all rights and obligations between the adopted person and his relatives by consanguinity - grandparents still have limited visitation rights - persons under 18 may be adopted through judicial proceedings - persons over 17 may be adopted by notarial act only 14.3 Adoption of Persons Over 17 1. Two methods for severing legal bond between parent and child: 1. involuntary surrender by order of the court 2. voluntarily executed by the parents 2. Who may execute act of Surrender? - any parent who is a domicile of the state, unless prospective adoptive parent is a domicile of the state, or child is in custody of Social Services 3. Three situations in which a parent lacks the capacity to surrender: 1. Parents right to custody has been terminated by court order and child is placed in legal custody of another. 2. Parent is a minor 3. Parent has been interdicted or determined mentally incapable 4. Pre-surrender Counseling: Childrens Code wants to ensure the parent is making a well-informed decision - minimum of two counseling sessions with mental health professional - sessions focus on preparation for and adjustments to surrendering a child - father can waive counseling requirements

5. Affidavit executed by Counselor states: 1. the nature and effect of the act were explained to parent and parent understood 2. parent freely and voluntarily executed the surrender 3. a copy of the act was given to the parent 6. Adoption Process: create a legal relationship of parent and child - once adopted the child is considered legitimate 7. Persons who consent is required for adoption: 1. the mother of the child 2. the legal father of the child under certain circumstances 3. biological father of the child who has parental rights 4. the custodial agency 8. Who may File for Adoption? - married couple jointly - any person over the age of 18 - petitioner is a stepparent, grandparent, aunt or uncle, sibling, first cousin 9. Three types of Adoption: 1. Agency adoption 2. Private Adoption 3. Intrafamily Adoption 10. Agency Adoption: occurs when a licensed agency or the Dept. of Social Services places a child in the home of unrelated person - prospective parents must file petition - investigation must be conducted - hearing date must be set between 30 60 after filing petition - court decides if in best interest of the child 11. Private Adoption: there is a concern about lack of safeguards to ensure child is in stable home - pre-placement home study program 12. Intrafamily Adoption: when a stepparent is married to the real parent or grandparents want to adopt a child - includes aunt or uncle - required consent of the parents may not be necessary in some cases, such as when person has been granted custody of the child 13. Appeals: may be filed within 30 days after judgment - any party may appeal - after 30 days, judgment is final 14. Annulments: can only be annulled on account of fraud or duress - action must be brought within 6 months of discovery of fraud or duress 15. Grandparents Visitation: must file motion if want rights - only permitted in 2 instances: marriage was dissolved by death or for the parents of a party who has forfeited the right to object to the adoption

16. Confidentiality: all proceedings are conducted in judges chambers - only persons allowed are: parties in interest, attorneys and officers of the court - petitioner can request that other people be present - only access to records are by written authorization by the court 17. Voluntary Registration: created to facilitate contact between adopted person and biological parents or siblings - meet the needs of adults who were adopted as children - must be at least 18 14.4 Conflict of Laws CHAPTER 15: PARENTAL AUTHORITY 15.1 The Scope of Parental Authority 1. Three elements of Parental Authority: 1. The obligation of respect owed father and mother, regardless of the childs age 2. The mutual obligations of ascendant and descendant to support the other in need 3. The authority of the father and mother together over their unemancipated minor children as long as the parents are married to each other 2. Principle elements of Parental Authority 1. Custody of the child by both parents, with the will of the father prevailing in the event of a difference of opinion between them 2. A corresponding parental liability for damage cause by the child 3. The right of the father to represent the minor in all civil acts. 4. The right of the father to administer the assess of the minor 5. The right of the father to dispose or encumber the assets of the minor in the same manner in which a tutor might dispose or encumber his pupils assets. 6. The parents right of enjoyment over assets of the minor, with important exceptions 7. The parents obligation, correlative to the right of enjoyment, or maintaining supporting, and educating their children according to their situation in life. Civil Code Art. 215: Filial Honor and Respect A child, what ever be his age, owes honor and respect to his father and mother. Civil Code Art. 217 Filial Obedience As long as the child remains under the authority of his father and mother, he is them in every thing which is not contrary to good morals and the laws. 15.2 Parental Sharing of Authority 1. Authority: parental, belonging to both parents, even though some aspects of it are to be exercised by the father alone in the usual care - even if the will of the father is to prevail if the parents differ Civil Code Art. 216: Parental Authority A child remains under the authority of his father and mother until his majority or emancipation. In case of difference between the parents, the authority of the father prevails. bound to obey

15.3 Transfer, Delegation and Termination of Parental Authority Civil Code Art. 220: Delegation of Parental Authority Fathers and mothers may, during their life, delegate a part of their authority to teachers, schoolmasters and others to whom they intrust their children for their education, such as the power of restraint and correction, so far as may be necessary to answer the purposes for which they employ them. They have also the right to bind their children as apprentices. 15.4 Custody Incidental to Parental Authority 1. Custody Incidental to Parental Authority: the right to supervise and direct the care of the child and his activities with a view to his proper rearing and development and his health and safety - can bring civil habeas corpus to prove existence of parental authority 2. Exceptions to who has the right to claim custody of minor against parents: 1. an adoption agency or individual whom child has been surrendered for adoption 2. a person given custody of the child by judgment 15.5 Childs Right to Quit the Parental House Civil Code Art. 218: Parental Custody and Correction An unemancipated minor can not quit the parental house without the permission of his father and mother, who have the right to correct him, provided it be done in a reasonable manner. 15.6 Parental Right to Correct Child See Above 15.7 Binding Children as Apprentices See Above 15.8 Responsibility of Parents for Damage Caused by Minors Case Law: 1. Williams v. City of Baton Rouge: Fathers and mothers are answerable for the offenses committed by their minor children, so a father is liable for the negligence of his minor child employed as a lifeguard which resulted in the death of a child. 2. Turner v. Bucher: A father is responsible for the delicts of his minor child whether or not the child is of sufficient age to be capable of discerning the consequences, so a father is responsible for a six year old that runs over a 62 year old woman with his bicycle. Civil Code Art. 237: Parents Liability for Offenses or Quasi-Offenses Fathers and mothers are answerable for the offenses or quasi-offenses committed by their children, in the cases prescribed under the title Of Quasi-Contracts and of Offenses and QuasiOffenses. 15.9 Parental Enjoyment of Minors Assets

Civil Code Art. 223: Parental Usufruct on Minor Childs Property Parents have during marriage the enjoyment of the property of their children until majority or emancipation. This usufruct is nonalienable and exempt from seizure.

their

Civil Code Art. 226: Parents Usufruct in Childs Estate Exceptions This usufruct shall not extend to any estate which the children may acquire by their own labor and industry, nor to such estate as is given or left them under the express condition that the father and mother shall not enjoy such usufruct. Neither shall ususfruct extend to such estate as is given the children by donation inter vivos unless such estate shall have been donated by written act and the right to such usufruct has been provided therein. 15.10 Security for Minors Civil Code Art. 224: Obligations Resulting From Parental Usufruct The obligations resulting from this enjoyment shall be: 1. The same obligations to which usufructuary are subjected: 2. To support, to maintain and to educate their children according to their 15.11 Assets Included in Parental Enjoyment 1. Parents do not have the enjoyment of assets (1) acquired by the minors own labor or industry or (2) given or left to the minor with the stipulation the parents should not have the enjoyment of them, or (3) given inter vivos to the minor without provision for the right of enjoyment in a written act. (4) whether the income or assets given to a minor in trust depending on the intent of the settler in trust, and (5) under the special transfer to minors legislation. 15.12 Termination of Parental Enjoyment in Parental authority ends upon divorce or death, or a judgment of separation from bed and board a covenant marriage.

situation in life.

15.13 The Administration and Disposition of Minors Assets Civil Code Art. 221: Parental Administration of Childs Estate The father is, during the marriage, administrator of the estate of his minor children and the mother in case of his interdiction or absence during said interdiction or absence. He or she shall be accountable both for the property and revenues of the estates the use of which he or she is not entitled to by law and for the property only of the estate the usufruct of which the law gives him or her. This administration ceases at the time of the majority or emancipation of the children, and also ceases upon judicial separation from bed and board either of the father from the mother or of the mother from the father. 15.14 Representation of the Minor The father, and by exception the mother, represents the minor in all civil acts - in his own name, not in the name of the minor. - third persons are not given the right

15.16 Suits Between Parent and Child Minor child has no right to sue a parent. Civil Code Art. 228: Marriage Settlement or Advancement A child has no right to sue either his father or mother for the purpose of obtaining marriage settlement or other advancement. 15.17 Support and Alimony Between Ascendants and Descendant Civil Code Art. 227: Parental Support and Education of Children Fathers and mothers, by the very act of marrying, contract together the obligation supporting, maintaining and educating their children. of a

Civil Code Art. 229:Reciprocal Alimentary duties of Ascendants and Descendants Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal. This reciprocal obligation is limited to lifes basic necessities of food, clothing and shelter and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources. Case Law: 1. Towell v. Towell: A parent who seeks change in child support custody is required to show a change in circumstances, however a daughter who suffers from severe birth defects and spina bifida is not going to change and the mother cannot seek employment because she is required to be with the daughter at all times. CHAPTER 16: TUTORSHIP 16.1 Occasions for Tutorship 1. Tutorship: needed when the minor not emancipated is not under parental authority - placed under the authority of a tutor after the termination of the marriage or judgment of separation from bed and board in a covenant marriage - a minor child born outside of marriage is never subject to parental authority, but is subject to tutorship Civil Code Art: 246 Occasions for Tutorship The minor not emancipated is placed under the authority of a tutor after the dissolution of the marriage of his father and mother or the separation from bed and board of either one of them from the other. 16.2 Functions of Tutors 1. Function of Tutors: combines obligations to person of the minor and to his patrimonial interests - right and obligation to represent the minor child in civil acts 16.3 Division of Tutorship

1. Guardianship: the duty and authority to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his general welfare 2. Legal Custody: a legal status created by court order which vests in a custodian the right to have physical custody of the child and the right and duty to protect, train, and discipline him and to provide him with food, shelter, and clothing 3. Voluntary Transfer of Custody: the knowing and voluntary relinquishment of legal custody or guardianship to an agency, institution or individual, subject to residual parental rights retained by the parent under such terms and conditions that enable the child to receive adequate care and treatment. The petition shall contain: 1. name and address of all parents 2. an affirmation that the parents are knowingly and voluntarily transferring custody 3. full name and date of birth of the child 4. factual basis for the transfer 5. nature, duration and extent of transfer 6. the name and address of agency, institution or individual to whom the child is sought 4. If the court grants the transfer, it must indicate: 1. all the necessary parties were involved 2. transfer was knowing and voluntary 3. there was a legitimate purpose and a factual basis to support it 4. all parties were advised and understand the nature and extent of the transfer 5. the proposed change of custody is in the best interest of the child Case Law: 1. In Re Tutorship of Werling: Standing involves interested persons and that category is not restricted to blood relatives, so an attorney who is a personal friend, professional associate and personal attorney has standing in a tutorship proceeding. 16.4 Other Agencies of Tutorship 1. Agencies of Tutorship: - Undertutor to act on behalf of the minor whenever his tutor fails or acts wrongly in regard to the interests of the minor - Family Meeting relatives of the minor in a formal session before a parish recorder called on order of a judge to deliberate and give its recommendations on a matter of interest 16.5 Kinds of Tutors 1. Four Kinds of Tutors: 1. Natural tutors derive their right and obligation from the law, without intervention of any person 2. Tutors by Will appointed by the parents entitled to do so either in a testament or in an inter vivos authentic act and confirmed by the judge 3. Legal Tutors appointed by the judge according to an order of priority of right and obligations specified by law 4. Dative Tutors appointed by the judge from among persons not entitled to demand or obliged in any way to accept tutorship Civil Code Art. 247: Kinds of Tutorships

There are four sorts of tutorships: Tutorship by Nature, Tutorship by Will, Tutorship by effect of the law, and Tutorship by the appointment of the judge. TUTORSHIP BY NATURE Civil Code Art. 250: Persons Entitled to Tutorship Upon the death of either parent, the tutorship of minor children belongs of right to the other. Upon divorce or judicial separation from bed and board of parents., the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose car he or she has been entrusted; however, if the parents are awarded joint custody of a minor child, then the cotutorship of the minor child shall belong to both parents, with equal authority, privileges, and responsibilities, unless modified by order of the court or by an agreement of the parents, approved by the court awarding joint custody. In the event of the death of a parent to whom joint custody had been awarded, the tutorship of the minor children of the deceased belongs of right to the surviving parent. TUTORSHIP BY WILL Civil Code Art. 257: Surviving Parents Right of Appointment The right of appointing a tutor, whether a relation or a stranger, belongs exclusively to the father or mother dying last. The right of appointing a tutor, whether a relation or a stranger, also belongs to a parent who has been named the curator for the other living spouse, when that other living spouse has been interdicted, subject only to the right of the interdicted parent to claim the tutorship should his incapacity be removed by judgment of a court of competent jurisdiction. This is called tutorship by will, because generally it is given by testament, but it may likewise be given by any declaration of the surviving father or mother, or the parent who is the curator of the other spouse, executed before a notary and two witnesses. Civil Code Art. 258: Right of Appointment Where Parents are Divorced If the parents are divorced or judicially separated, only the one to whom the court has entrusted the care and custody of the children has a right to appoint a tutor for them as provided in art. 257. However, if the parents have been awarded joint custody of the children, then the right to appoint a tutor for them belongs to the parent dying last, but either parent may appoint a tutor of the property of the children as provided in art. 257. In the event that both parents appoint a tutor of the property of the children, the tutors shall separately administer that portion of the childrens property which is attributable to the respective parents estate. The court shall decide which tutor shall administer that portion of the childrens property which is not attributable to either parents estate. TUTORSHIP BY THE EFFECT OF THE LAW Civil Code Art. 263: Qualified ascendants; collaterals by blood; surviving spouse When a tutor has not been appointed to the minor by father or mother dying last, or if the tutor thus appointed has not been confirmed or has been excused, then the judge shall appoint to the tutorship, from among the qualified ascendants in the direct line, collaterals by blood within the third degree and the surviving spouse of the minors mother or father dying last, the person whose appointment is in the best interest of the minor DATIVE TUTORSHIP Civil Code Art. 270: Occasion for Tutorship

When a minor is an orphan, and has no tutor appointed by his father or mother, nor any relations who may claim the tutorship by effect of law; or when the tutor appointed in some of he modes above expressed is liable to be excluded or disqualified, or is excused legally, the judge shall appoint a tutor to the minor. 16.6 The Order of Call to the Tutorship 1. Order to call: 1. natural tutor 2. tutor at will 3. legal tutor 4. dative tutor 2. Two exceptions of order to call: 1. If the parents have been divorced, the parent with custody and dying has the first right to appoint a tutor by will who need not be the surviving parent 2. If one parent is interdicted or notoriously insane, the other parent, or in the case of interdiction, the other spouse appointed curator, may appoint the tutor by will 16.7 The Natural Tutor 1. Natural Tutor: on death of one of the parents while they are married to each other, the law calls the surviving spouse of the child the natural tutor - a child born outside of marriage includes grandparents, aunts, uncles if they are parents or siblings of the mother - must qualify for office Civil Code Art. 248: Modes of Establishment of Tutorships Tutorship by nature takes place of right, but the natural tutor must qualify for the office as provided by law. In every other kind of tutorship the tutor must be confirmed or appointed by the court, and must qualify for the office as provided by law. Civil Code Art. 256: Illegitimate Children A. The mother is of right the tutrix of her illegitimate child not acknowledged by the father or acknowledged by him alone without her concurrence. B. After the death of the mother, if the father had not acknowledged the child prior to the mothers death, the court shall give first consideration to appointment as tutor either of her parents or siblings who survive her and accept the appointment, and secondly, the father, always taking into consideration the best interests of the child C. If both parents have acknowledged their illegitimate child, the judge shall appoint as tutor the one by whose care the best interests of the child will be served. However, if the parents are awarded joint custody of such child, then the cotutorship of such child shall belong of right to both parents, with equal authority, privileges, and responsibilities, unless modified by order of the court or by an agreement of the parents, approved by the court awarding joint custody. 16.8 The Unborn Child Civil Code Art. 252: Unborn and Posthumous Children If a wife happens to be pregnant at the time of the death of her husband, no tutor shall be appointed to the child til after his birth; but, if it should be necessary, the judge may appoint a curator for the preservation of the rights of the unborn child, and for the administration of the estate which

may belong to such child. At the undertutor. 16.9 The Tutor By Will

birth of the posthumous child, such curator shall be of right the

1. Tutor By Will: the parent dying or that dying first and have been awarded custody of the child after divorce, may appoint a tutor to the child - inter vivos authentic act or in his will - judge could refuse to confirm the parents appointment of the tutor by will if conducive to the interest of the minor Civil Code Art. 259: Option of Acceptance of Tutorship The tutor by will is not compelled to accept the tutorship to which he is appointed father or mother. by the

Civil Code Art. 262: Appointment of Several Tutors; Order of Priority If the parent who died last has appointed several tutors to the children, the person first mentioned shall be alone charged with the tutorship, and the second shall not be called to it, except in case of the death, absence, refusal, incapacity or displacing of the first, and in like manner as to the others in succession. 16.10 The Legal Tutor 1. Legal Tutor: judge must appoint unless all such persons are excused or disqualified or refuse the tutorship. - qualified person include: ascendants in the direct line, collaterals by blood within the third degree and the surviving spouse of the minors mother or father dying last - best interest of the child 16.11 The Dative Tutor 1. Dative Tutor: no natural, testamentary, or legal tutor being available, the judge must appoint - no one is obliged to accept 16.12 The Provisional Tutor 1. Provisional Tutor: must be distinguished from the curator of the unborn child - appointed to a person already born in instances where a permanent tutor has not been appointed - appointment does not prevent the qualification, confirmation, or appointment of tutor and that his obligation may be terminated by the judge before a regular tutor qualifies or is confirmed or appointed 16.13 Judicial Proceedings Required 1. Judicial Proceeding: required for the confirmation of testamentary tutors and the appointment of legal and dative tutors - all tutors are obligated to qualify in judicial proceedings and to receive letters of tutorship before exercising the duties of the office 16.14 Relatives Obligations to Seek Appointment of Tutor

Civil Code Art. 308: Duty to Apply for Appointment In every case where it is necessary to appoint a tutor to a minor, all those of his relations who reside within the parish of the judge, who is to appoint him, are bound to apply to such judge, in order that a tutor be appointed to the minor at farthest within ten days after the event which make such appointment necessary. Civil Code Art. 309: Minors Exempt from Taking Application Minor relations are not included in the provisions contained in the preceding article

Civil Code Art. 310: Liability For Failure to Make Application Relations who have neglected to cause a tutor to be appointed, are responsible for the damages which the minor may have suffered. This responsibility is enforced against relations in the order according to which they are called to the inheritance of the minor, so that they are responsible only in case of the insolvency of him or those who precede them in that order, and this responsibility is not in solidum between relations who have a right to the inheritance in the same degree Civil Code Art. 311: Action for Damages; Prescription The action which results from this responsibility can not be maintained by the tutor but within the year of his appointment. If the tutor neglects to bring his action within that time, he is answerable for such neglect to the minor. 16.15 Qualification of Tutor 16.16 Security Civil Code Art. 322: Minors Legal Mortgage on Tutors Property The recording of the certificate of the clerk operates as a legal mortgage in favor of the minor for the amount therein stated, on all the immovable property of the natural tutor in the parish. Civil Code Art. 333: Sale of Mortgaged Property by one Claimant; Whenever a special mortgage is given by a tutor to secure the rights of two or more minors, any of the minors, on attaining the age of majority or being emancipated, may cause the sale of the mortgaged property to satisfy the indebtedness of the tutor to him, after having discussed the other property of the debtor, in the following manner: If the judge is of the opinion that the mortgaged property is sufficient to satisfy all of the demand of the major and minors, he shall order the sale of so much of the property as will satisfy the demand of the major, if susceptible of division, and the property so sold shall be free of the mortgage in favor of the remaining minor. 16.17 Oath and Letters of Tutorship 16.18 When Does One Become Tutor 16.19 Tutorship After Divorce or Legal Separation of Parents 16.20 The Undertutor Civil Code Art. 273: Necessity for Appointment In every tutorship there shall be an undertutor. Civil Code Art. 278: Liability Concerning Minors Legal Mortgage

The undertutor who fails or neglects to cause to be inscribed in the manner required by law, the evidence of the minors legal mortgage against his tutor, shall be liable for all the damages which the minor may sustain in consequence of such failure or neglect, and this claim for damages shall not be prescribed so long as the minors right of action exists against his tutor. Civil Code Art. 280: Termination of Undertutorship The duties of the undertutor are at an end at the same time with the tutorship. 16.21 Excuse, Disqualifications, Removal, and Resignation of Tutor or Undertutor Civil Code Art. 292: Excuse By Reason of Office or Function The following persons are dispensed or excused from the tutorship by the privilege of their offices or functions: 1. The Governor and the Secretary of the State 2. The judges of the different courts of this State and the offices of the same 3. The Mayor of the City of New Orleans 4. The Collector of Customs 5. The officers and soldiers attached to the regular troops, whether on land or sea service, employed and in actual service in this state, and all the officers who are intrusted in this state with any mission from the government as long as they are employed. 6. Preceptors and other persons keeping public schools, as long as they remain in the useful and actual exercise of their profession 7. Ministers of the gospel. Civil Code Art. 293: Waiver of Excuse by Subsequent Acceptance of Tutor The persons mentioned in the preceding article, who have accepted a tutorship posterior to their being invested with the offices, engaged in the service, or intrusted with the mission which dispenses from it, shall not be admitted to be excused on that account. Civil Code Art. 294: Subsequently Acquired Excuse Those, on the contrary, who shall have been invested with offices, who shall have engaged in the service, or shall have been intrusted with commissions, posterior to their acceptation and administration of a tutorship, may, if they do not choose to continue to act as tutor, be excused from the tutorship, and apply for the appointment of another tutor to supply their place. Civil Code Art. 295: Excuse for Remote Relationship No person, who is not a relation of the minor by consanguinity, or who is only beyond the fourth degree, can be compelled to accept to tutorship related to him

Civil Code Art. 296: Excuse for Age Every person who has attained the age of 65, may refuse to be a tutor. The person, who shall have been appointed prior to that age, may be excused from the tutorship at the age of 70. Civil Code Art. 297: Excuse for Infirmity Every person affected with a serious infirmity may be excused from the tutorship, if this infirmity be of such nature as to render him incapable of transacting his own business. He may even be discharged from the tutorship, if such infirmity has befallen him after his appointment. Civil Code Art. 298: Excuse for Prior Tutorships

The person who is appointed to two tutorships has a legal excuse for not accepting a third. A parent who has been appointed to one tutorship shall not be compelled to accept a second tutorship, except it be that of his own children. Civil Code Art. 299: Time to Present Excuse The tutor, who has excuses to offer against his appointment, must propose them to the judge who has appointed him, within ten days after he has been acquainted with his appointment or after the same shall have been notified to him, which period shall increase one day for every ten miles distance from his residence to the place where his appointment was made, and after this delay he shall no longer be admitted to offer any excuse, unless he has sufficient reason to account for such delay. Civil Code Art. 300: Provisional Administration Pending Consideration of Excuse During the time of the pendency of the litigation relative to the validity of his excuses, the tutor who is appointed shall be bound provisionally to administer as such, until he shall have been regularly discharged. Civil Code Art. 301: Parents Unconditional Obligation of Tutorship The causes herein expressed, or any other, cannot excuse a parent from the accepting the tutorship of his children. 16.22 Responsibility of Heirs of Tutor 16.23 Custody and Supervision of Minor Tutor has custody of the minors person and supervision of his rearing and education. 16.24 Expenses of the Minors Rearing 16.25 Responsibility for Delicts of Minors Civil Code Art. 2318: Act of Minors The father and the mother and, after the decease of either, the surviving parent, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons. The same responsibility attaches to the tutors of minors. 16.26 Administration of Minors Assets; Disposition Thereof Civil Code Art. 336: Alienation of Minors Immovables The prohibition of alienating the immovables of a minor, does not extend to the case in which a judgment is to be executed against him, or of a licitation made at the instance of the coheir, or other coproprietor. Civil Code Art. 360: Parents Rights of Administration In addition to the rights of tutorship, the parents shall retain, during the marriage and for the minority of the retarded child, all rights of administration granted to parents of normal children during their minority. 16.27 Acts of Third Persons on Behalf of the Minor obligation of

16.28 Acts of the Minor on His Own Behalf 1. Impuber: always subject to parental authority or tutorship 2. Puber: not under parental authority remained under tutorship until he elected to choose a curator ad bonam to assist him in his substantive juridical acts 16.29 Ratification of Irregular Acts of the Tutor or Acts of Minor 16.30 Termination of Tutorship 16.31 Accounting by the Tutor Civil Code Art. 249: Accountability of Tutor For every sort of tutorship, the tutor is accountable 16.32 Termination of the Obligations Civil Code Art. 340: Prescription of Minors Action Against Tutor The action of the minor against his tutor, respecting the acts of the tutorship, is years, to begin from the day of his majority. 16.33 Representation of Minor Without Tutor Legislation provides for the appointment of an attorney at law to represent a non-resident or absentee, or an unemancipated minor or incompetent who has no representative 16.34 Small Tutorships 16.35 Adjudication of Minors Interest to Parent Co-Owner 16.36 Intrastate Jurisdiction 16.37 Ancillary Tutorships CHAPTER 17: EMANCIPATION OF MINORS 17.1 Kinds of Emancipation and Their Effects 1. Three Kinds of Emancipation 1. Emancipation for administration 2. Emancipation by Marriage 3. Emancipation Relieving the Minor of the time prescribed by law for attaining the age of majority 2. Emancipation for Administration: remains a minor - he may administer his assets without the assistance or intervention of anyone - alienate by onerous title, without the assistance of anyone - alienate or encumber his immovables by following the formalities prescribed in the code 3. Emancipation by Marriage: irrevocable prescribed by 4

- enjoy the same capacities as emancipation for administration 4. Emancipation relieving the person 16 years or older of the time required for attaining the age of majority simply declares a person a major even though he has not yet attained the age of majority Civil Code Art. 365: Kinds of Emancipation There are three kinds of emancipation: (1) Emancipation conferring the power of administration, (2) Emancipation by marriage, and (3) Emancipation relieving the minor from the time prescribed by law for attaining the age of majority Civil Code Art. 370: Emancipated Minors Power of Administration The minor who is emancipated has the full administration of his estate, and may pass all acts which are confined to such administration, grant leases, receive his revenues and moneys which may be due to him, and give receipts for the same. Civil Code Art. 371: Limitation on Contractual Capacity He cannot bind himself legally by promise or obligation for any sum exceeding the amount of one year of his revenue Civil Code Art. 372: Limitations on Contractual Liability; lesion The minor who is emancipated has no right to claim a restitution on the plea of simple lesion against acts of simple administration. He has no right either to claim a restitution for simple lesion against obligation or promises which do not exceed the amount of one year of his revenue If, however, he has contracted in the same year, towards one or more creditors, several obligations, each of which does not exceed the amount of one year of his revenue, but which together exceed that amount, these obligations may be reduced according to the discretion of the judge, whose duty it shall be in such case, to take into consideration the estate of the minor, the probity or dishonesty of the person who have dealt with him, and the utility and inutility of the expenses. Civil Code Art. 373: Limitation on Power of Alienation The emancipated minor who has only the power of administration of his estate cannot alienate, affect or mortgage any of his immovable property without the authorization of the court, on the recommendation of his tutor or of the administrator of his estate, as the case may be, in accordance with the applicable provisions of the C.C.Pr. The authority of the tutor and undertutor, or of the administrator of his estate, of such a minor constitutes for these purposes after his emancipation until the minor reaches the age of 18. Civil Code Art. 374: Limitation on Right to make Donations The emancipated minor has no right to dispose of his movables or immovables by donation inter vivos unless it be by marriage contract in favor of the person to whom he is to be married Civil Code Art. 376: General Capacity Concerning Trade The emancipated minor who is engaged in trade, is considered as having arrived at the age of majority, for all the acts which have any relation to such trade. Civil Code Art. 384: General Rules In other respects, minors emancipated by marriage are bound by the rules laid down in the preceding section. Civil Code Art. 385: Emancipation of Minor 16 or Older

A minor 16 or older may be judicially emancipated and relieved of the disabilities which attach to minority as provided in 3991 through 3994 of the C.C.Pr. 17.2 Modes of Emancipation for Administration 1. Modes of Emancipation for Administration: - authentic act by the father, or mother if father is deceased - if judgment of separation, by tutor - judgment in the event the minors parents are mistreating him excessively - for authentic act, minor must be age of 15 or older Civil Code Art. 366: Emancipation by notarial act The minor, although not married, may be emancipated by his father or, upon the death of the father, by his mother or, in the event of divorce or separation from bed and board, by the natural tutor or cotutors acting jointly, when he shall have arrived at the full age of 15 years. This emancipation takes place by the declaration to that effect of the father, the mother, or both, before notary public in the presence of two witnesses. Civil Code Art. 368: Emancipation by Reason of Ill Treatment The minor may be emancipated against the will of his father and mother, when they ill treat him excessively, refuse him support or give him corrupt examples. 17.3 Emancipation by Marriage 1. Marriage of Right: emancipates a minor of either sex - irrevocable - if minor is 16 or older, he is relieved of all disabilities of minority Civil Code Art. 379: Emancipation by Marriage The minor, whether male or female, is emancipated of right by marriage Civil Code Art. 382: Special Effects of Emancipation by marriage A married minor below the age of 16 has the power of administration of his estate; but he cannot alienate, affect or mortgage any of his immovable property without the authorization of the court, as provided in 373. The authority of the tutor or undertutor, or of the administrator of his estate, of such a minor continues for these purposes after the minors marriage until the minor reaches the age of 16. Civil Code Art. 383: Irrevocability of Emancipation by marriage This emancipation can not be revoked 17.4 Emancipation Conferring Majority 1. Emancipation Conferring Majority: 16 is the minimum age requirement - judge must find good cause and that the minor is capable of managing his own affairs CHAPTER 18: INTERDICTION, CONTINUING TUTORSHIP AND COMMITMENT 18.1 Interdiction

Civil Code Art. 389: Full Interdiction A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means Civil Code Art. 390: Limited Interdictions A court may order the limited interdictions of a natural person of the age of majority, or an emancipated minor, who due to an infirmity is unable consistently to make reasoned decisions regarding the care of his person or property, or any aspect of either, or to communicate those decisions, and whose interests cannot be protected by less restrictive means Civil Code Art. 391: Temporary and Preliminary Interdiction When a petition for interdiction is pending, a court may order a temporary or preliminary interdiction when there is a substantial likelihood that grounds for interdiction exist and substantial harm to the health, safety or property of the person sought to be interdicted is imminent 18.2 Continuing Tutorship 18.3 The Occasions for Interdiction 18.4 Juridical Act of the Interdicted Persons Civil Code Art. 392: Curators The court shall appoint a curator to represent the interdict in juridical acts and to care for the person or affairs of the interdict, or any aspect of either. The duties and powers of a curator commence upon his qualification. In discharging his duties, a curator shall exercise reasonable care, diligence, and prudence and shall act in the best interest of the interdict The court shall confer upon a curator of a limited interdict only those powers required to protect the interests of the interdict Civil Code Art. 393: Undercurators The court shall appoint an undercurator to discharge the duties prescribed for him by law. The duties and powers of an undercurator shall commence upon qualifications. In discharging his duties, an undercurator shall exercise reasonable care, diligence, and prudence and shall act in the best interest of the interdict. Civil Code Art. 394: Pre-Interdiction Juridical Acts Interdiction does not affect the validity of a juridical act made by the interdict prior to the effect date of interdiction. Civil Code Art. 395: Capacity to Make Juridical Acts A full interdict lacks capacity to make a juridical act. A limited interdict lacks the capacity to make a juridical act pertaining to the property or aspects of personal care that the judgment of limited interdiction places under the authority of his curator, except as provided in 1482 or in the judgment of limited interdiction. Civil Code Art. 396: Effective Date of Judgment of Interdiction A judgment of interdiction has effect retroactive to the date of the filing of the petition for interdiction

18.5 Proceedings for Interdiction Civil Code Art. 399: Responsibility for Wrongful Filing of Interdiction Petition A petitioner whose petition for interdiction is denied is liable for resulting damages caused to the defendant if the petitioner knew or should have know at the time of filing that any material factual allegation regarding the ability of the defendant consistently to make reasoned decisions or to communicate those decisions was false.

18.6 The Curatorship of the Interdict 18.7 Responsibility of Curator for Damage Caused by Interdict Civil Code Art. 2319: Acts of Interdicts Neither a curator nor an undercurator is personally responsible to a third person for a delictual obligation of the interdict in his charge solely by reason of his office 18.8 Termination of Interdiction Civil Code Art. 397: Modification and Termination of Interdiction The court may modify or terminate a judgment of interdiction for good cause. Interdiction terminates upon the death of the interdict or by judgment of the court. A judgment of preliminary interdiction granted after an adversarial hearing terminates 30 days after being signed, unless extended by the court for good cause for a period not exceeding 30 days. A judgment of temporary interdiction granted ex parte terminates 10 days after being signed. On motion of the defendant or for extraordinary reasons shown at contradictory hearing, the court may extend the judgment of temporary interdiction for one additional period not to exceed 10 days. Civil Code Art. 398: Effective date of Modification or Termination of a judgment of Interdiction An order modifying or terminating a judgment of interdiction is effective on the date signed by the court. 18,9 Commitment Without Interdiction CHAPTER 19: CONCUBINAGE CONHABITA AND DOMESTIC PARTNERSHIPS 19.1 Concubinage in General 19.2 The Children of Concubines 19.3 Domestic Partnerships