MARRIED PERSONS

MARRIED PERSONS

PREREQUISITES OF MARRIAGE
1. Definition: The legal relationship between 2 people created by civil contract.
  1. (1) ABSENCE OF LEGAL IMPEDIMENTS: (a) Existing Marriage (b) Too Closely Related: whole or half blood relatives in DIRECT-LINE & COLLATERALS w/in the 4th Degree. NOTE - ADOPTED - treated as blood relatives. NOTE 2 - AFFINITY - NO impediment.
    1. (2) MARRIAGE CEREMONY: (a) Qualified celebrant or reasonably believed to be be QC; (b) Attendance by BOTH parties; (c) Mutual Consent Expressed at Ceremony.
      1. COVENANT MARRIAGE
        (1) FORMATION: (a) Special Counseling; (b) Declare Intent to Contract a CM; (c) Execute a Notarized Declaration of Intent to Contract a CM.
        (2) COMMITMENT TO COUNSELING: To preserve marriage - begins once the parties experience marital difficulties AND continue until the rendition of divorce.
        (3) TERMINATION:
        (a) DIVORCE - (i) adultery; (ii) Felony- DS/HL; (iii) Abandoned - 1 year & refusal to return; (iv) Physical/Sexual Abuse of Spouse or kids of either spouse; (iv) Separate + Apart CONTINUOUSLY for 2 years + NO reconciliation IF NO CHILDREN; (v) Separate + Apart CONTINUOUSLY for 1 &1/2 years IF THEY HAVE A CHILD - UNLESS abuse was the basis for separation (if abuse, 1 year living apart from the judgment of separation.
        (b) JUDICIAL SEPARATION - SAME as DIVORCE + (vi) habitual intemperate or engages in other excesses, cruel treatment, or other outrageous conduct of such a nature as to render living together insupportable.
        CANNOT BE dissolved, rescinded, or terminated by the mutual consent of the spouses.
NULLITY OF MARRIAGE
1. RELATIVE NULLITY
  1. (1) CIRCUMSTANCES: a marriage lacking consent MAY be declared relatively null.
    1. (2) EFFECTS: Valid and produces civil effects until OFFICIALLY declared null by the court.
      1. (3) NULLITY MUST BE RAISED BY NONCONSENTING PARTY: in a judicial proceeding.
        (4) CONFIRMATION BY NONCONSENTING PARTY PRECLUDES ACTION TO ANNUL:
2. ABSOLUTE NULLITY
  1. (1) CIRCUMSTANCES: a marriage is absolutely null when contracted EITHER: (a) in violation of legal impediment or (b) without a valid marriage ceremony attended by both parties .
  2. (2) EFFECTS: (a) Null Ab Initio - devoid of all legal effect from the the moment from inception - no judicial declaration is required, but ANY INTERESTED PARTY MAY BRING ACTION TO ANNUL; (b) Putative Marriage Doctrine.
3. PUTATIVE MARRIAGE DOCTRINE
  1. (1) PUTATIVE MARRIAGE: applies when marriage is absolutely null, AND at least one of the spouses was in good faith in contracting the marriage.
    1. (a) GOOD FAITH: honest and reasonable belief that no legal impediment to the marriage exists.
      1. (i) PM DOCTRINE APPLIES TO FACTUAL & LEGAL ERRORS.
        (ii) PRESUMPTION OF GF on the part of the party making a putative marriage claim.
        (iii) CHALLENGINg PARTY bears BOP --- EXCEPTION: a spouse who is a party of a previous .
      2. (iv) KNOWLEDGE - firsthand knowledge of an impediment vitiates GF.
      3. (v) GF WITHOUT A MARRIAGE CEREMONY - would have to be EXCEPTIONAL CASE (Marinoni Case).
    2. (b) CIVIL EFFECTS: Civil effects of a putative marriage are the same as in a normal marriage --EXCEPT as to CP.
      1. (i) a GF spouse in a putative marriage is eligible for: (1) SPOUSAL SUPPORT; (2) LEGITIMACY OF THE CHILDREN; (3) MARTIAL PORTION; (4) WRONGFUL DEATH ACTION; and (5) CP acquired during PM.
        (ii) SPECIAL RULE GOVERNING CP AT DEATH OF COMMON SPOUSE: (1) BAD FAITH - his 1/2 CP goes to LEGAL SPOUSE & the other 1/2 to the GF PUTATIVE SPOUSE; (2) GOOD FAITH - heirs acquire 1/2 of COMMON SPOUSE'S CP & LEGAL and PUTATIVE share remaining 1/2, each getting 1/4.
        (iii) DURATION OF CIVIL EFFECTS: continue as long as the spouse remains in GF.
        BIGAMY EXCEPTION: civil effect continue even after the nonbigamous, innocent spouse learns of the impediment, until EITHER: (1) there is an official declaration of nullity, or (2) the nonbigamous innocent spouse remarries.
        (iv) CHILDREN: A marriage contracted in GF produces civil effects for ALL children of the marriage.
4. PROVISIONAL AND INCIDENTAL PROCEEDINGS IN ACTIONS OF NULLITY
  1. (1) A COURT MAY award a party the incidental relief afforded in a divorce proceeding.
    1. (2) INTERIM RELIEF : Claims for relief PENDING the nullity action include interim spousal support - which may be grnated regardless of nature of alleged nullity AND regardless of whether he was in GF or BF in contracting the marriage.
      1. (3) PERMANENT RELIEF: Relief that is intended to continue in effect past the effective date of the judgment of nullity is available ONLY (i) to parties to relatively null marriages, and (ii) to parties to absolutely null marriages who are deemed entitled to civil effects as putative spouses.
INCIDENTS OF MARRIAGE
1. (1) MUTUAL DUTIES: Spouses owe each other the following duties: (a) Fidelity - NEGATIVE (not commit adultery) & POSITIVE (submit to "reasonable and normal sexual desires"; (b) SUPPORT - furnish necessities of life; (c) ASSISTANCE - care for ill or infirm spouse.
  1. (2) NOT ENFORCEABLE DURING MARRIAGE: Spouses cannot generally sue each other for breach of duties during the marriage. NOTE: Only able to sue after physical separation. HOWEVER, breach of these duties MAY mount to fault sufficient to bar FINAL SPOUSAL SUPPORT.
    1. (3) PARENTAL AUTHORITY: Parents JOINTLY exercise parental authority and assume moral and material obligations.
      1. (4) SURNAMES: Marriage does not change either spouse's surname, but a married person may use the surname of either or both spouses. A widowed, divorced, or remarried woman may use her former spouse's name or may resume using her maiden name; no special steps are required.
        (5) CONFLICT OF LAW: If a marriage is valid where contracted or where the parties first were domiciled as spouses, then it is valid in Louisiana unless validity would violate a strong public policy of Louisiana.

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	Created by Tessa Bitterman almost 7 years ago