Divorce

LOUISIANA DIVORCE BASICS

Louisiana is a “No Fault Divorce” state, meaning that you do not have to prove to the court that your spouse has done something wrong which ended the marriage. A no fault divorce in Louisiana requires only a period of physical separation from your spouse of either 180 days if there are no children of the marriage, or 365 days if you and your spouse have minor children between you.

Louisiana does provide three specific circumstances when you can file a fault-based divorce, which would allow you to receive a judgment of divorce immediately, without the periods of separation listed above. The three grounds for a fault-based divorce in Louisiana are:

  1. When your spouse has committed adultery;
  2. When your spouse has physically or sexually abused you or your child; and
  3. When your spouse has been convicted of a felony and sentenced to death or imprisonment at hard labor.

Additionally, if you and your spouse have already lived separate and apart for either 180 days if there are no minor children, or 365 days if there are minor children of the marriage, and neither of you has filed for divorce yet, it is possible to receive an immediate judgment of divorce without having to restart the separation period.

COVENANT MARRIAGE

Louisiana is one of three states (the other two are Arizona and Arkansas) which recognizes Covenant Marriages. Covenant Marriages were created in the law in order to encourage spouses facing difficult times to work toward reconciliation and to fix their marriage, and thus make obtaining a divorce much harder for those in a covenant marriage.

If you entered into a Covenant Marriage, you will know.  Spouses entering into a covenant marriage must sign a Declaration of Intent to enter into a Covenant Marriage as well as an Affidavit and Attestation Form, and attend counseling prior to the marriage. Your marriage application, marriage license, and marriage certificate will all state that you entered into a covenant marriage.  You will be required to attend counseling prior to filing for divorce.

If you did enter into a covenant marriage have completed the required counseling, you may obtain a divorce only after providing proof of one of the following:

  1. Your spouse has committed adultery;
  2. Your spouse committed a felony and has been sentenced to death or imprisonment at hard labor;
  3. Your spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return;
  4. Your spouse has physically or sexually abused your or one of your children;
  5. You and your spouse have lived separate and apart continuously and without reconciliation for a period of two years;
  6. You and your spouse have lived separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed (if there are minor children of the marriage, the basis for the judgment of separation from bed and board was not abuse of a child, then this period is extended to 18 months).

A Judgment of Separation from Bed and Board may be obtained by a spouse who entered into a covenant marriage for any of the reasons listed in 1-5 above, but also may be obtained due to the habitual intemperance of your spouse, or excesses, cruel treatment, or outrages of the other spouse, if such habitual intemperance, or such ill-treatment is of such a nature as to render your living together unsupportable.

In Louisiana, less than 2% of marriages are covenant marriages (based on 2010 data). It is highly unlikely that you are in a covenant marriage, but as stated above, you will know.  If you are still unsure as to whether you entered into a covenant marriage and will need to follow the guidelines above to obtain a divorce in Louisiana, it may be helpful to discuss your situation with a Louisiana divorce lawyer.

FAULT-BASED DIVORCE

An immediate judgment of divorce may be obtained in Louisiana if you are able to prove that your spouse is at fault for the divorce.  Again, the three grounds for a fault-based divorce in Louisiana are: (1) your spouse committed adultery, (2) your spouse physically or sexually abused you or one of your children, or (3) your spouse was convicted of a felony and sentenced to death or imprisonment at hard labor.

Obtaining a fault-based divorce is more difficult than obtaining a no-fault divorce in Louisiana because you will have to provide evidence supporting your grounds for obtaining a fault based divorce. This will likely require you to appear in court and present testimony and other evidence to the judge.

ADULTERY

For purposes of proving fault in a Louisiana divorce, adultery is generally defined as sexual intercourse during the marriage with someone other than one’s spouse. Louisiana courts have expanded the definition to include oral sex, and other Louisiana courts have held that adultery as a grounds for divorce is not limited to actual sexual intercourse. In the absence of sexual intercourse, repeated sexual contact between a spouse and a non-spouse has been enough to satisfy the court that adultery has occurred as sufficient grounds for a fault based divorce.

If you request a fault based divorce on the grounds of adultery, you have the burden of proving the adultery by a preponderance of the evidence. Your spouse is given the benefit of being presumed innocent until you meet this burden of proof.  Although preponderance of the evidence is sometimes considered the lowest burden of proof, it still requires more than just your testimony that your spouse cheated on you.

It is not enough that your spouse admits that he or she committed adultery, even if the admission is made in a formal and signed writing.  It may also not be enough to have just the testimony of the person with whom your spouse committed adultery, or just the testimony of a private investigator who witnessed your spouse together with someone else.

You must be able to prove, whether by direct or circumstantial evidence, the time(s) and place(s) of the adulterous incidents, and the identity of the person with whom your spouse committed adultery.  If you are able to prove all of this through evidence and testimony which makes it completely illogical that your spouse is innocent, then you will be able to obtain an immediate divorce in Louisiana on the grounds of adultery.

PHYSICAL OR SEXUAL ABUSE

If you are your children are currently in a situation of domestic abuse of any nature, it is important that you immediately leave the marital home and seek help. Contact law enforcement and seek other local resources for victims of abuse. Physical and Sexual abuse are serious issues and help is available. In Calcasieu and Cameron Parish, contact the Calcasieu Women’s Shelter. In Jefferson Davis Parish, contact Jeff David CADA.  In Beauregard Parish, contact the Jenkins Women’s Shelter at 337-462-6504. In the Lafayette area, contact Faith House of Acadiana.

In 2014, the Louisiana legislature amended the grounds for a fault based divorce to include physical or sexual abuse of either you or your child at the hands of your spouse. This allows victims of abuse to get out of a marriage and obtain a divorce immediately upon a showing of proof that they or their child was the victim of physical or sexual abuse at the hands of their spouse.

In 2015, the legislature again added to the statute.  Now the victim of physical or sexual abuse, or the parent of a child who has been physically or sexually abused by the other parent can obtain an immediate fault-based divorce where a protective order was issued during the marriage.  The protective order could have been issued by consent decree or after a contradictory hearing and need only provide an injunction against the other spouse, protecting the spouse seeking divorce or a child of one of the spouses from abuse.

SPOUSE CONVICTED OF FELONY AND SENTENCED TO DEATH OR IMPRISONMENT AT HARD LABOR

If your spouse has committed a felony and has been convicted and sentenced to death or imprisonment at hard labor, you will be able to obtain and immediate fault-based divorce.  Prior to seeking a divorce on these grounds, you or your attorney can obtain records from the criminal records at the clerk of court where the conviction and sentencing took place, and attach these to your Petition as proof that your spouse has been convicted of a felony and sentenced accordingly.

NO FAULT DIVORCE

The majority of Louisiana divorces will be filed on a no fault basis. This allows you to file for divorce without the requirement of allegations against your spouse.  The only requirement for a no-fault divorce in Louisiana is that the spouses must live separate and apart for a period of time.  If there are no minor children of the marriage, then you may obtain a no fault divorce by living separate and apart for 180 days.  If you and your spouse have minor children, then you must wait one year before you will be granted a judgment of divorce.

It is important to note that the time periods listed above can be misleading. Time delays caused by required procedures court calendars can effectively drag the divorce process out an additional one to two months.  The clock doesn’t start running on the date that you file the Petition for Divorce, but rather on the date that your spouse is served by the Sheriff with a certified copy of your divorce petition. The Sheriff has 10 days to try to serve your spouse. After 10 days, if the Sheriff is unable to serve the divorce papers on your spouse, you or your attorney can request that a private party be appointed to serve your spouse with the Divorce Petition.

WAIVER OF SERVICE

In many situations it makes sense for the spouse being served with the divorce petition to waive service. This means that instead of requesting the Sheriff to go and find your spouse and hand him or her the divorce papers, your spouse will agree to pick up a certified copy of the divorce petition and sign a Waiver of Service which will be filed with the court. This usually occurs either at your divorce lawyer’s office or at your spouse’s divorce lawyer’s office. The Waiver of Service must be notarized.

TIME OF SEPARATION

On the day that your spouse is served by the Sheriff with a certified copy of the Petition for Divorce, or on the date that your spouse executes a Waiver of Service and receives a certified copy of the divorce petition, the clock begins to run on obtaining your Judgment of Divorce. It is from this date that the 180 days of separation if there are no minor children, or 365 days if you have minor children with your spouse, must take place.

On either the 181st day after service of the divorce petition, or the 366th day, depending on whether there are minor children of the marriage, you or your attorney can file a Rule to Show Cause why Judgment of Divorce Should not be Granted. The court will then set a date for you to appear and request a Judgment of Divorce. You spouse has an opportunity to appear in court and give reasons why you should not receive your Judgment of Divorce.

RECONCILIATION

It is unlikely that your spouse will appear on the final Rule date and try to show reasons that the judgment of divorce should not be granted, but it is possible.  One way for them to do this is to show that at some point during the 180 or 365-day period, you and your spouse reconciled.  What constitutes reconciliation is a question of fact, but courts have held that it takes more than a sexual encounter with your spouse.
In one Louisiana divorce case, the court held that there was no reconciliation where the spouses went on several trips together and had sporadic sexual encounters during the period of separation. This was based on the totality of the circumstance which showed that the husband maintained a separate apartment during the entire period, where he kept all of his belongings, and that the spouses were living separate and apart in a manner that those in the community were aware of the separation. He never transferred anything back to the marital home, and he was able to show that he never had the intent to reconcile with his wife.
Although it would be necessary for your spouse to show evidence of much more than just that you remained close and had intermittent sex during the period of separation, this is not a chance that you will want to take.  If there is a possibility that you and your spouse can work things out then by all means, you should do everything in your power to make your marriage work. But if it is truly over and you both intend for the divorce to be finalized, then you should not put yourself in a position that might raise the question of whether or not you reconciled.

THE DIVORCE PETITION

SAMPLE PETITION

The sample petition below is for parties filing for a no-fault Louisiana divorce where there are minor children of the marriage. It is presumed that the proper venue for filing is Calcasieu Parish, or the 14th Judicial District Court. Although it is not necessary to hire a divorce lawyer in order to file for divorce in Louisiana, you should be aware that each divorce petition is based upon the specific facts of the case and that although this sample may cover most issues for some people, that does not mean that it covers all issues for you.

It is a common occurrence for parties to a divorce proceeding to show up at a divorce attorney’s office long after the Petition for Divorce has been filed only to find out that they missed out on certain important rights by attempting to file their own divorce. I had one case in which my client’s spouse was determined to file the divorce on her own and because she failed to ensure service upon my client, the clock never started running and the parties had to wait even longer to obtain the judgment of divorce.

At the very least, you should meet with someone just to review your Petition for Divorce to determine if you have missed anything. Corcoran Law Firm, LLC, and Lawrence Sean Corcoran make no warranties about the application of the provisions below to your case, and you should not use this sample petition for divorce without ensuring that it is appropriate to your situation. Click below for sample divorce petition:

SamplePetition

RESPONDING TO A DIVORCE PETITION

If you have been served with a Petition for Divorce, or if you have waived service and picked up your certified copy of the divorce petition, you have 15 days from the date of service or the date that you signed the waiver of service, to respond to the allegations made by your spouse. You or your attorney may be able to get an extension of time to file your Answer, but you should not wait too long to take action.

The Petition for Divorce will include a date upon which you are to attend an initial hearing.  Depending on which Louisiana court is the proper venue for your case, this hearing may be before a Hearing Officer in an informal setting (this is how it is done in Calcasieu Parish and Lafayette Parish) or before a Judge in a courtroom.

It is unwise to appear at that hearing without having first discussed your options with someone. An attorney whose practice focuses on family law matters such as divorce and child custody will be very familiar with these procedures and will be able to walk you through the hearing with ease.

ISSUES LIKELY TO BE HEARD AT THE INITIAL HEARING

ISSUES REGARDING YOUR CHILDREN

At the initial hearing, the Hearing Officer or Judge will make initial determinations as to which parent will receive custody of your children.  This determination does not have to be permanent but it is necessary for the sake of the children that something be decided quickly.  The court has a great interest in ensuring that your children do not suffer because of you or your spouse’s decision to get divorced.

If the court does not award shared custody to both parents, then one parent will be granted primary custody of the children.  Additionally, the other parent will be granted reasonable visitation with the children.  To avoid conflict during the divorce proceedings, and until a final determination of custody can be made, this initial determination will become a judgment of the court which the parties will have to follow until further agreement or further orders of the court.

Child support will also be determined at this initial hearing.  Child support amounts are based on guidelines set by the legislature and are calculated using the combined gross income of the spouses.  Although generally speaking, child support will be what it will be, and there is not much use fighting the amount, there are several factors that may be considered to increase or decrease the amount paid to the receiving spouse.

SPOUSAL SUPPORT OR ALIMONY

Spousal support, sometimes referred to as alimony, is another issue which will be discussed and determined at the initial hearing.  Interim spousal support will be granted to the lower income spouse who can show need, when the higher income spouse has the ability to pay. Louisiana does not have specific guidelines for determining the amount of spousal support, but the basic principle is that the court has an interest in ensuring that the spouse seeking support is able to maintain the same lifestyle during the pendency of divorce as the spouses maintained prior to the filing of divorce.

OBJECTING TO FINDINGS OF INITIAL HEARING

If you are unhappy with any of the determinations made at the initial hearing, it is necessary for you to file an objection. Your objection must be in writing and must state the basis on which you are objecting. In the parishes which utilize the Hearing Officer system for divorce and family law matters, Louisiana has adopted a uniform rule of a 5 day period for objecting to the recommendations. It is important that you do not allow this period to pass.

If you represent yourself in an initial hearing and then decide to hire a divorce attorney to help you object, you should find one immediately after the hearing in order to give him or her time to file your objection before the objection period runs out.

PROPERTY DIVISION

Louisiana is a community property state. This means that unless you entered into either a premarital agreement or a post-marital agreement as to the separation of property, everything which you obtain during the marriage is owned 50/50 by you and your spouse.  Additionally, all debts incurred during the marriage are owed on 50/50 by you and your spouse.

Figuring out how to divide the assets and debts upon divorce can be complicated.  It does not always make sense for each spouse to take half of each asset and half of each debt.  Different tax bases and ages of the spouses could mean that one asset is much more valuable in a practical sense to you than it is to your spouse.

Imagine for example a situation where two spouses essentially lived paycheck to paycheck and the only real asset was the husband’s 401k, valued at $500,000.00.  Husband’s income is $100,000 per year and wife has been a stay-at-home mom.  After the divorce was filed, husband thought the best and quickest way to settle the community property would be to cash out the 401k and split the cash.  This is a horrible idea!

If husband were to what he thinks is right, he would effectively have income of $600,000 for the year, and would have to pay about 180,000 in taxes just from the 401k. On top of that he would have to pay a 10% early withdraw penalty ($50,000). So what was $500,000 is now $270,000, and the value given to wife would be $135,000.

Wife is in a much lower tax bracket, so if instead she obtained a Qualified Domestic Relations Order, granting her 50% of the 401k, she would effectively get $250,000 in a 401k of her own. Wife could still withdraw the cash early if she needed to, but could withdraw $50,000 per year over 5 years at a lower tax rate, paying about $14,000 in taxes and penalties each year and receiving $36,000.  Over 5 years, this translates to $180,000 in cash.

If wife had agreed to husband’s idea, she would have lost $45,000 unnecessarily.

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