DISCUSSION AND IDEAL ANSWER TO QUESTION I
Louisiana does not recognize Bob and Jim's marriage. It is contrary to Louisiana's strong public policy. Further, the federal Defense of Marriage Act says a state need not give full faith and credit to a same-sex marriage. Louisiana is therefore without jurisdiction to dissolve a marriage that it does not recognize. Bob could marry Geraldine in Louisiana, but that would be risky. He could never take her to Massachusetts or any other state recognizing same-sex marriages, as he would be in a bigamous relationship with Geraldine. And there would always be the danger that Louisiana would one day recognize same-sex marriages, thereby voiding his marriage to Geraldine. Bob could move to Massachusetts or any other state that recognizes same-sex marriages, live out the residence period for divorce (in Massachusetts it's one year), and then file for divorce. The whole process will probably take about two years. Louisiana, however, can grant Bob an immediate annulment. Since Jim is subject to in personam jurisdiction in Louisiana, he could not contest the annulment in Massachusetts. It would be best if the Louisiana annulment is carefully worded to grant declaratory relief that the purported marriage is not entitled to be recognized in Louisiana or any other state, commonwealth or territory. A legal advantage to filing in Louisiana is that Jim can't claim for spousal support. A practical advantage to filing in Massachusetts is that it will give Bob and Geraldine time before marriage to see if their relationship will work. With Bob's uncertainty as to his sexual orientation, this is probably a good idea. Inquire of client whether he has told Geraldine of his gay background. The marriage won't last long if he hasn't. Finally, Bob should be advised to see a marriage counselor to determine the stability of his new sexual orientation. |
NOW THE GRADING KEY
| Louisiana does not recognize Bob and Jim's marriage | 21 points _______ |
| contrary to Louisiana's strong public policy | 21 points _______ |
| FFC not required by federal Defense of Marriage Act | 21 points _______ |
| Louisiana without jurisdiction to dissolve a marriage it does not recognize | 21 points _______ |
| Louisiana can, however, grant an annulment | 21 points _______ |
| Louisiana has in personam jurisdiction over Jim | 21 points _______ |
| Jim cannot collaterally attack any annulment in Massachusetts | 21 points _______ |
| best to word judgment carefully for declaratory relief | 21 points _______ |
| Advantage to filing in Louisiana: no spousal support possible | 21 points _______ |
| Advantage to filing in Massachusetts: the process will take a long time | 21 points _______ |
| and with uncertainty of Bob's orientation, this may be a good idea | 21 points _______ |
| Ask Bob if he has told Geraldine of his gay background | 21 points _______ |
| Advise him to see a marriage counselor to resolve issues of orientation | 21 points _______ |
| and ideally he should also invite Geraldine to attend with him | 21 points _______ |
A. Antenuptial contracts
| Of right prior to the marriage | 4 points _______ |
| Within a year of moving to Louisiana | 4 points _______ |
| Any time with judicial authorization | 4 points _______ |
| Any time to adopt the legal regime | 4 points _______ |
| By authentic act or acknowledgment | 4 points _______ |
| Before a notary and two witnesses | 4 points _______ |
| Must be recorded to bind third parties and creditors | 4 points _______ |
| May define what is community property | 4 points _______ |
| or abolish the community regime | 4 points _______ |
| or waive final periodic spousal support | 4 points _______ |
| May not waive interim spousal support | 4 points _______ |
| May not limit child support | 4 points _______ |
| May not determine child custody | 4 points _______ |
B. Marriage ceremonies
| Free consent | 4 points _______ |
| Absence of impediment | 4 points _______ |
| In a ceremony | 4 points _______ |
| Before an officiant | 4 points _______ |
| May not be by proxy or procuration | 4 points _______ |
C. Who may officiate
| Judges | 4 points _______ |
| within their parish or district | 4 points _______ |
| Ministers | 4 points _______ |
| who are registered | 4 points _______ |
| statewide | 4 points _______ |
| Any officiant reasonably believed | 4 points _______ |
D. Impediments to marriage
| Same sex | 4 points _______ |
| Prior undissolved | 4 points _______ |
| Prohibited degree | 4 points _______ |
| Adopted collaterals may petition | 4 points _______ |
E. Absolute nullity
| No need for decree | 4 points _______ |
| Impediment | 4 points _______ |
| or lack of ceremony | 4 points _______ |
| or procuration | 4 points _______ |
| Anyone at interest may attack | 4 points _______ |
F. Relative nullity
| Vice of consent | 4 points _______ |
| Ratification or confirmation | 4 points _______ |
| Civil effects flow | 4 points _______ |
| Must be judicially declared | 4 points _______ |
| Suit personal to party lacking consent | 4 points _______ |
G. Grounds for divorce from non-covenant marriage
102 divorce| File petition, then wait 180 days | 4 points _______ |
| from service | 4 points _______ |
| or waiver of service | 4 points _______ |
| Then file rule to show cause | 4 points _______ |
| Nullity if 180 days have not elapsed | 4 points _______ |
| Prescribes in two years | 4 points _______ |
| Adultery | 4 points _______ |
| Conviction of felony | 4 points _______ |
| with sentence of death | 4 points _______ |
| or imprisonment at hard labor | 4 points _______ |
| Living separate and apart | 4 points _______ |
| continuously | 4 points _______ |
| without reconciliation | 4 points _______ |
| for 180 days or more | 4 points _______ |
| 365 days when there are minor children | 4 points _______ |
| on date petition is filed | 4 points _______ |
H. Jurisdiction and venue for divorce
| Jurisdiction based on state domicile of either | 4 points _______ |
| Mention of Williams v. North Carolina | 4 points _______ |
| Venue based on parish of | |
| last matrimonial domicile | 4 points _______ |
| or plaintiff's domicile | 4 points _______ |
| or defendant's domicile | 4 points _______ |
I. Modification of custody
| Change of circumstances test | 4 points _______ |
| Present environment deleterious | 4 points _______ |
| Clear and convincing evidence | 4 points _______ |
| Mention of Bergeron | 4 points _______ |
| Mention of considered decree | 4 points _______ |
| Modification of visitation on simple change of circumstances | 4 points _______ |
J. Child support
| Use the tables | 4 points _______ |
| Any other valid points | 4 points _______ |
K. Disavowal of paternity
| One year prescriptive period | 4 points _______ |
| Exceptions to the one year limitation | 4 points _______ |
| Clear and convincing evidence | 4 points _______ | testimony of husband must be corroborated | 4 points _______ | Blood tests are best way | 4 points _______ |
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