Family Law
It would be impossible to tell a person about to undergo or in the process of a divorce all there is to know on this website. However, the information below is designed to answer some frequently asked questions about the divorce process in Louisiana. Please be forewarned that this is general information which may not apply to your situation, depending on the particular facts and circumstances. The information below is not meant to constitute legal advice. Always consult a competent legal advisor, preferably one certified as a family law specialist by the Louisiana Board of Legal Specialization, to obtain advice pertinent to your specific problem.
1. Does a Louisiana court have jurisdiction to hear my divorce?
A Louisiana court has jurisdiction to grant a divorce if either spouse is domiciled in Louisiana at the time the petition for divorce is filed or if Louisiana was the last state in which the parties lived together as husband and wife. Depending on the facts of the case, Louisiana may not have jurisdiction to decide matters ancillary to the divorce, such as child custody, child support, spousal support, and partition of community property in the event that both parties are not domiciled in the state.
2. What are the grounds for a divorce in Louisiana?
In the case of non-covenant marriages, there are 6 grounds for obtaining a divorce in Louisiana: (1) living separate and apart for at least 180 days prior to filing the petition (a “103 divorce”) if no minor children were born of the marriage or if the filing spouse was physically or sexually abused by the other spouse; (2) living separate and apart for at least 180 days after service of the petition (a “102 divorce”) if no minor children were born of the marriage or if the filing spouse was physically or sexually abused by the other spouse; (3) living separate and apart for one year prior to filing the petition of divorce if there are minor children of the marriage; (4) living separate and apart for one year after service of the petition of divorce if there are minor children of the marriage; (5) adultery; and (6) conviction of the other spouse of a felony carrying a sentence of at least one year at hard labor. There are special rules in the case of a covenant marriage. Irreconcilable differences is not a ground for divorce in this state.
3. How long will it take for my divorce to be final?
In the case of a 102 divorce, after the passage of the requisite period of time after service of the petition (180 days, if there are no minor children of the marriage and no finding of abuse; or one year, if there are minor children of the marriage), either party may file a motion with the court, setting the divorce for hearing. Depending upon the individual judge’s docket, the hearing will usually be scheduled within three to eight weeks. Therefore, a 102 divorce will usually be finalized within 8 months or 14 months, respectively, of its service on the non-filing spouse.
In theory, a party entitled to a divorce based on one of the other 4 grounds may obtain it more quickly. In practice, delays caused by procedural and service requirements, as well as the individual judge’s docket, usually mean that the divorce can be finalized in anywhere from a few weeks’ to a few months’ time, depending on the facts of your case and the grounds for divorce. There are special rules for covenant marriages.
4. Who gets custody of the children?
In Louisiana, the court must award custody in accordance with the best interest of the children. There is a presumption that joint legal and physical custody is in the best interest of the children. However, in certain circumstances, for example, in cases involving domestic violence or abuse or where long distances between the parties makes joint custody impractical, sole custody may be awarded to one parent if there is clear and convincing evidence that it is in the child’s best interest. The best interest of the children is decided by consideration of all relevant factors, including 12 specific factors.
5. Who gets use of the former family home?
As a practical matter, the spouse with physical custody of the children generally is awarded use of the family home during the divorce proceeding. However, the court will decide this issue based on who owns the home, the best interest of the family, and consideration of the parties’ respective financial situations.
6. How much child support will I receive or have to pay?
Louisiana has enacted Child Support Guidelines, which create a rebuttable presumption that the amount of child support obtained by their use is the proper amount. The Guidelines are income-based, meaning that the court looks at the gross income of both parents and the pro rata percentage of their combined incomes. The court then calculates the basic child support according to the Guidelines and decides whether to deviate from that amount. The court may add to the basic child support award an amount for educational expenses, health insurance, day care, extracurricular activities, and other extraordinary expenses. There are special rules which apply in the instance of shared custody (roughly equivalent to 50-50 physical custody) or split custody of the children (e.g., one child lives with Mom, and one child lives with Dad).
7. Am I entitled to spousal support?
There are two types of spousal support available in Louisiana — interim spousal support and final periodic support. If a request for final support is pending, interim spousal support may be awarded to a spouse in need for a period generally not to exceed six months after rendition of the judgment of divorce. Interim spousal support is intended to maintain the “status quo;” i.e., to prevent economic dislocation of a spouse due to the divorce. Fault of either party is not considered in awarding interim spousal support; only the needs of the payee spouse, the ability to pay of the other spouse, and the standard of living of the parties during the marriage are considered.
Final periodic support is available to a spouse only upon a showing that he or she was not at fault in the breakup of the marriage and is in need of support, and that the other spouse has the ability to provide final support. The court considers numerous other factors in determining the entitlement, amount, and duration of the support, including the parties’ needs, their income and means, their earning capacity, the duration of the marriage, their health, etc. Final periodic spousal support is intended to provide only the basic necessities of life — food, clothing, shelter, transportation, health insurance, uninsured medical expenses, and the income tax consequences of final support — and may not exceed 1/3 of the payor’s net income.
8. How will the property be divided?
With few exceptions, couples domiciled in Louisiana are subject to Louisiana’s scheme of community property. In general, all property acquired by the parties during the marriage is presumed to be owned by them in indivision; i.e., one-half each. The property is divided by the court in a manner so that each spouse receives assets and liabilities with an equal net value, after taking into consideration claims for reimbursement that the spouses may have against each other. The division of community property is accomplished through a process called “partition.”
9. My spouse is harassing me. Is there anything I can do?
Yes. The court routinely issues restraining orders preventing the spouses from harassing and abusing each other during and after the divorce. In cases of serious violence and/or abuse of a spouse, child, or other family member, more elaborate protective orders can be obtained.
10. Neither my spouse nor I want to go to court. Is there another way that we can resolve our differences?
Yes, yes, yes! We encourage the use of mediation and/or collaborative divorce. Mediation is a process where a neutral third person with specialized training and expertise and who is selected by the parties helps them resolve the issues which a busy, harried judge would otherwise decide. Mediation is faster, cheaper, and less adversarial than the normal divorce process. Mediation is usually appropriate in all cases except those involving violence or substance abuse. Collaborative Divorce is a process whereby the parties enter into an agreement not to go to court, but to resolve their differences out of court. Collaborative Divorce utilizes a team of professionals, including mental health professionals who act as divorce coaches, a child specialist who advocates for the best interest of the children, and a financial specialist who assists the couple with budgeting, support matters, and division of their community property. The Collaborative Divorce process allows the couple the ability to co-parent effectively in the future and to resolve their differences in a dignified, fair, and cost-efficient manner.
11. How much will my divorce cost?
The answer to this question depends upon the issues involved in your specific case and, to a certain extent, the willingness and ability of you and your spouse to resolve some or all of them without going to court. For example, a divorce where no children and no property are involved will be simpler, and therefore less expensive, than a highly-charged adultery case where custody of the children is sought by both parties and there is substantial property to be divided. In general, we charge by the hour and work against an advance deposit, sometimes called a ‘retainer.’ The amount of attorney’s fees and costs will depend upon the complexity of the issues involved.
We hope that this information will be useful to you as you embark upon this life-changing experience. We will be happy to answer specific questions in a personal and confidential meeting. Please call our offices to schedule an appointment with Lindsey Ladouceur 985-898-2131, ext. 1007.