Louisiana Family Law Outline

PART ONE: MARRIAGE

Marriage
1. Legal relationship between a man and a woman
2. That is created by civil contract.
3. Subject to special rules prescribed by law.

Prerequisites for a Valid Marriage (3)
1. Absence of any legal impediments
2. Marriage Ceremony
3. Mutual consent of both parties (expressed at ceremony)

Legal Impediments (3)
1. Existing Marriage
2. Same Sex
3. Incest—one can’t marry certain blood relatives (legitimate/illegitimate)
a. Direct-Line Relatives – ascendants and descendants
b. Collaterals – w/in the 4th degree whether whole or half blood
i. (i.e. aunt-nephew, siblings, 1st cousins)
à Adoption – treated as blood relatives.
o However, written judicial approval can be obtained for marriages between persons related by adoption in the collateral line w/in the 4th degree.
à Relation by Affinity – by marriage
o no impediment exists if collaterals are related by affinity
o (i.e. step-brother and step-sister can marry)

Marriage Ceremony
– Parties MUST participate in a marriage ceremony:
1. performed by a 3rd person who is qualified, reasonably believed by parties to be qualified, to perform the ceremony (qualified officiant)
i. Priest, minister, rabbi, clergyman
1. Must be registered [w/ clerk of court in parish he will principally perform marriage ceremonies] ii. State Judge
1. Only in jurisdiction
2. Authority continues after retirement
iii. Justice of the Peace
1. Only in parish situated
2. Parties must be PHYSICALLY present at the ceremony when it is performed
a. Marriage by procuration is prohibited (party is absent and represented by another person)
3. Other Ceremonial Formalities—officiant’s failure to comply w/ formalities will still render marriage valid
a. Marriage License- failure to obtain a license doesn’t invalidate the marriage- still valid even if performed without license!
i. License must be issued 72 hours before the ceremony unless waived for compelling reasons
ii. Authority to Issue- license authorizing officiate to perform marriage ceremony must be issued by:
1. state registrar of vital records
2. clerk of court (any parish)
3. district judge (if clerk of court is party to marriage)
iii. Place of Issuance – in any parish, regardless of ceremony’s location or parties residence
iv. Form – application provided by state registrar of vital records
v. Application requirements:
1. date/hour of application
2. full name/residence/race/age each party
3. names of parents of each party
4. # of former marriages of each party
5. relationship of each party to the other
6. social security numbers
vi. Application attachments
1. certified copy of birth certificate
2. written consent (minors only)
3. declaration of intent for covenant marriage
vii. Validity – Valid for 30 days from the date of the issuance
viii. Reissuance – expired license must be submitted to issuing official
b. Witnesses
i. Two competent witnesses
ii. Age 18 or older
c. Signed Marriage Certificate
i. Signatures of parties, witnesses, officiate
ii. Show place, time, date of performance of ceremony
d. Summary of Laws
i. Officiant must deliver to couple a summary of LA community property laws and covenant marriage laws

Mutual Consent Expressed at Ceremony
– Parties must verbally express consent during the ceremony
– Consent may not be implied
– Marriage by procuration is prohibited!!

VICES OF CONSENT – consent is not freely given when:
A. Duress – parties’ consent must be free from duress
1. Violence
a. Actual violence
b.Threatened violence – if threat is pending when consent is given
(1) Criminal Prosecution
B. Capacity- Persons not capable of discernment
a. Insanity, drunkenness, mental retardation

Covenant Marriage
– 1997, Legislature created (subject to special rules)
A. Formation—Parties must:
1. Receive special counseling
2. Declare their intent to contract a covenant marriage on their application for a marriage license
3. Execute a notarized declaration of intent to contract a covenant marriage
– If a couple is already married, they may convert their marriage into a covenant marriage.
B. Termination
1. Divorce—only after counseling and ONLY if one of the following
i. Other spouse has committed adultery
ii. Other spouse has committed a felony and has been sentenced to death/imprisonment at hard labor
iii. Other spouse has abandoned the matrimonial domicile for one year and refuses to return
iv. Other spouse has physically/sexually abused the spouse seeking the divorce or a child of one of the spouses
v. Spouses have been living apart for two years
vi. Spouses have been living apart for 180 days from a judgment of separation if they are childless
vii. Spouses have been living apart for 1 year if they have a child, unless child abuse was the basis for the separation (in which case the spouses need live apart for only 180 days after judgment of separation)
2. Separation – legally separated (through a judgment of separation) only after counseling and ONLY if one of the following
i. The other spouse has committed adultery
ii. Other spouse has committed a felony and has been sentenced to death/imprisonment at hard labor
iii. Other spouse has abandoned the matrimonial domicile for one year and refuses to return
iv. Other spouse has physically/sexually abused the spouse seeking the divorce or a child of one of the spouses
v. Spouses have been living apart for two years
vi. The other spouse is habitually intemperate or engages in other excesses, cruel treatment, other outrageous conduct of such a nature as to render living together insupportable

C. Nullity of Marriage
1. Relatively Null—marriage lacking consent
a. Must be raised by Non-consenting Party—Nullity must be declared in a judicial proceeding by the party whose consent was not free
b.Confirmation Precludes Action to Annul—Marriage cannot be declared null if the non-consenting party later confirmed the marriage after recovering his liberty or discernment.
(1) Cohabitation/living together as husband and wife is evidence of confirmation
c. Effects
d.Must be declared null—relatively null marriage is valid until officially declared null by the court
e. Civil effects—relatively null marriage produces civil effects until it is officially declared null
2. Absolutely Null—when contracted w/out a marriage cer