Forum Replies Created
Reply:Yes, it is done all the time. Any gift to a spouse converts assumed community property into separate property of the spouse receiving the gift. It is sometimes hard to prove what is a gift and what is not. Clearly an item of jewelry received on December 25 by the wife from the husband would give the wife an excellent argument that the item of jewelry is her separate property.I know one lady who has been married several times that keeps all the cards she receives with any gift -proof down the road if necessary.
Reply 2:Happened to me in the 22nd. I filed to vacate and Judge agreed. The petition to appoint probably indicated that she was sole heir.
Original poster:What do we have to file to get her removed?
Reply:From what you describe she should not have been able to get appointed as an independent administrator (administrator without a will, executor with a will) without all the heirs consenting. Without a will, all his children would be heirs.The heirs can seek to remove her as administratrix since it doesn’t sound like she should have qualified. She also would have been required to post a bond since there was no will.
Reply 2:If the children are his, you should go back to court, in my humble opiion. Louisiana has a state minimum child support order and he should be ordered to pay it. If he is getting SSI there is also a stipend for biological children; please go to social security and see about it. He IS required to pay if the law is applied correctly and IF they are his children. The law is very clear that the children if they are biologically his or adopted, get a portion of his ssi.When you do this (take him back for child support) what you CAN do is ask to have the money she supports him with counted as income. This is called “in-kind). So if she is paying a 1200 dollar mortgage and he lives there for free and it would rent for 1200….his “in-kind income” would be 600. Same for proportion of utilities, use of a car, etc. Be very sweet and kind to her as you subpoena her financia stuff and point out, you don’t want HER money, you only want your husband to support the kids based on his lifestyle.(She won’t be happy).
Reply:You have an interesting question and the substance of the relief you are looking for used to be a fairly common type of suit, and perhaps still is in some states.It was generally known as an “alienation of affection” suit and was brought against the person who interfered with the marriage contract -a contract in which fidelity between the parties was afforded some degree of protection.In cases where a third party was proven to have interfered with the marriage, that is, the third party “alienated the affections” of one of the spouses (generally through adultery), then that third party could be sued the damages suffered by the innocent spouse.Unfortunately, the last case I found that even brought up the subject was in 2009 and made it clear that the alienation of affection argument has really never been supported in Louisiana.Louisiana law does not recognize a cause of action for intentional infliction of emotional distress based solely on allegations of an extramarital affair. The cause of action is similar to one for alienation of affection which has never been actionable in Louisiana. Price v. Fuerst, 3rd Circuit, 2009Incidentally, this case was brought against the lawyer who represented the wife in a divorce case, and then had an affair with her. He ran into some ethics issues, but the suit against him for damages by the husband was dismissed on a motion for summary judgment.
Reply:There are no forms, per se. You will need to go to a lawyer who has experience with not only family law in general, but specifically grandparents rights. I suggest you read through all the information here in the Law Articles under Grandparent Visitation first.
Original poster:Nope, no alimony requested. Just want to get rid of spouse and reclaim maiden name.Thank you for the replies. You folks are GREAT!Sum
Reply:Since we have no-fault divorce, then fault for the purposes of getting divorce is usually irrelevant.However, fault is extremely important if she will be seeking spousal support. To get permanent spousal support (alimony) you have to be free from fault. The only exception is temporary spousal support.So, in a fight for permanent spousal support he would typically claim abandonment while she would claim abuse as the cause for her leaving.
Original poster:Couple has prenup, each responsible for his/her own expenses, wife only stayed there due to medical insurance. They never went anywhere together, each to his own church, etc., no “couple” thing what-so-ever. Man was brutally mentally abusive and demeaned woman to no extent. He used the medical insurance to keep her cleaning, cooking, etc., till she was so humiliated in front of one of his friends that she walked out.Day of moving out, husband was sitting across from his friend at a breakfast table and wife was 5 feet from them and had her back to them as she prepared to bathe her little dog. Husband was talking to his friend about having done some plumbing the day before. Wife innocently turned and asked if he had fixed the pipe in the laundry room. He turned white as if in shock that she’d have the nerve to question him and said to her, “JUST TURN AROUND AND WASH THE DOG!!!”This is the way he normally talks to her but this time it was in front someone and more than she could take. She then and there decided if it wasn’t for him, she might not need a doctor so she said to h*ll with medical insurance and left him that same day.Any grounds there?Thanks!Sum
Reply:The test is whether a married couple has “lived separate and apart” for the required separation period.Although we have seen judges (mostly when these laws were new) stretch the point to an extent, it is far safer, not to mention legally correct, to be physically separated and under different roofs. The issue is whether you were living together as man and wife, not whether there were any sexual relations -although, admittedly, that is a component of living together as man and wife.The bottom line is that it is not worth the risk of having to start all over again with the resulting expense in time and money if the separation period is disputed.
Reply 4: No. Without a last will, a spouse is given a usufruct by operation of law – called a “legal usufruct” over the decedent’s 1/2 interest in the community assets of his or her estate. His separate property goes directly to his descendants – if any.If the house was his separate property and was paid for before the marriage – no payments were made with community assets – I believe that the house would go to the daughter. If she is a minor – her mother would be appointed as her tutor and would administer her property for her until she became a major.Please correct me if I’m wrong, but I believe that the house would go to the daughter in full ownership.
Original Poster: So is there a usufruct automatically if no will?
Reply 3: Since the house is his separate property, wouldn't it go to his daughter completely?
Reply 2: EJC-LA is correct.Another point to consider is assuming your daughter is a forced heir (under age 24), she would have to receive 25% of your estate -which can get to be an awkward situation for the surviving spouse. In a will you can create a super usufruct which would greatly lessen the impact of having 25% go to the forced heir, especially if the forced heir is a minor.Welcome to the crazy world of forced heirship, coming to you compliments of the Louisiana Legislature which has avoided ditching this dinosaur at every opportunity.