Divorce in Louisiana
Because of the prevalence of marital breakdown in today's society, almost everyone has been or could be affected by spouses physically separating and seeking a divorce. Terminating a marriage may involve custody, spousal/child support and property rights. The issues may be simple and easily resolved by the parties, with or without professional assistance, or may be more complicated, necessitating legal assistance.

This brochure provides a very basic overview of Louisiana law concerning termination of marriages and the various areas where serious legal issues may arise. Every citizen is guaranteed the right to self-representation but, because the legal determinations will have long-term effects on the spouses and family, legal representation is recommended.

Termination of Marriages
Marriages are terminated in Louisiana in four ways:

• Death of either spouse;
• Divorce;
• Declaration of nullity of the marriage; and
• Presumption of death (Louisiana Civil Code Article 101).

It should be noted that Louisiana no longer has an action for legal separation, effective Jan. 1,1991.

Divorce
There are four grounds for divorce in Louisiana:
Living separate and apart after filing of petition.
Once a petition for divorce is filed, if the parties remain separate and apart without reconciliation, either spouse may ask the court for a divorce 180 days after the petition for divorce was served or a written waiver of service was filed in the record.
The 180-day waiting period requirement cannot be waived. The action can be defeated if the parties reconcile _ resume living together with a mutual intent to resume the marriage at any time during the waiting period. Certain procedural formalities are required.

Living separate and apart before filing of petition.
If the spouses have lived separate and apart, continuously and without reconciliation, for six months or more, either spouse may file a petition for divorce.

The other spouse commits adultery.
Adultery on the part of the other spouse is grounds for an immediate divorce; there is no required waiting period. The burden of proof is on the party alleging the adultery and is very strict. Corroborative testimony is normally required and it must be proven that the other spouse engaged in sexual relations with another person.

Conviction of a felony.
If the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor, a petition for divorce can be filed. The facts of conviction and sentencing are the only proof requirements; appeals and actual serving of the sentence are immaterial.

Declaration of Nullity
A marriage can be judicially declared null and void when the consent of one of the spouses was not freely given at the time of the marriage. The right to ask for this declaration of nullity is lost if the complaining spouse subsequently "confirmed" the marriage.
A marriage is absolutely null, and therefore considered as never having occurred, if:

• the marriage was contracted without a ceremony;
• stand-ins were used (procuration);
• it is a bigamous marriage;
• it is between people of the same sex; or
• precluded by familial relationship.

Because these types of marriages are absolutely null, there is no need for a judicial declaration.

Presumption of Death
If a spouse disappears under circumstances that make death seem certain, although the body has not been found, a proceeding can be filed to have the death recognized by law, thereby terminating the marriage. If the spouse is on active duty in one of the United States' armed forces and has been reported missing under circumstances causing the armed services to accept the presumption of death, a Louisiana court may make a declaration of death.

Custody
In the divorce proceeding or thereafter, either spouse may request a determination of custody, visitation, child support, spousal support and property rights.

Custody is often the most crucial and emotionally charged issue during or after the divorce. Professional mental health counseling may be beneficial to both the children and parents in learning how to cope with this life crisis.

While "joint custody" is presumed to be in the best interest of the children, this legal presumption can be rebutted by either parent proving that sole custody is in the children's best interest (Louisiana Civil Code Articles 131 and 134).
The court shall consider, among other factors, the following in determining custody:

• relationship between parents and child;
• age and gender of the child;
• parent's ability to give guidance;
• parent's ability to encourage a continuing relationship between the child and other parent; and
• parent's moral fitness and the mental and physical health of the parties.

The single most important test should always be what is in the children's best interest.
Subsequent changes in custody may be obtained but, minimally, there must be a showing of a material change in circumstances.
A child's wishes may be considered if the child is of sufficient age, intelligence and maturity to make such a statement of preference.

Visitation
As with custody, visitation (or in a joint custody situation, physical custody time) between a parent and the children is also determined in accordance with the children's best interest.
Under extraordinary circumstances, relatives of the children may be granted visitation rights if that would be in the children's best interests.

Child Support
Normally the parent not having custody (or primary physical custody in joint custody situations) will be required to contribute to the support of the minor children. This could be an obligation of the mother or father, or both if a third person has custody of the children. Under extraordinary circumstances, a grandparent could be required to contribute.
The amount of child support is determined by reference to the Child Support Guidelines, ordering mandatory support at stated levels. A trial judge can deviate from the guidelines, but must give specific oral or written reasons why the deviation is in the children's best interest.

Spousal Support
There are two types of spousal support in Louisiana _ alimony pendete lite (temporary support until the divorce) and after-divorce alimony.
Alimony pendente lite may be awarded to a spouse who does not have sufficient income for his/her maintenance pending the divorce and is designed to maintain the status quo in both spouses' living conditions to the extent that can be accomplished.
After-divorce alimony may be awarded to an ex-spouse who:

• has been found to be free from fault in the breakdown of the marriage; and
• does not have sufficient means for his/her support.
  This type of spousal support is designed to provide the needy ex-spouse with the basic necessities of life.

Property Rights
Unless the parties before or during the marriage entered into a matrimonial agreement excluding or modifying the legal regime of community property, generally speaking, everything acquired by the spouses while residing in Louisiana is owned equally by them.
Property owned before marriage, individual gifts during marriage and property inherited are considered separate property and generally not subject to division when the community regime terminates (Louisiana Civil Code Article 2341).
Community property is that which is acquired during the marriage through the effort, skill or industry of either spouse, such as wages and employee benefit plans, property donated to the spouses jointly and other property not classified as separate. If the parties cannot agree on what assets and liabilities are to be partitioned to each party, or what values are to be assigned, the court will determine values and then divide all of the assets and liabilities so each spouse receives one-half of the net value of the joint estate.

Other Information & Procedures
Most courts have special procedural rules concerning divorce and ancillary matters. A copy of these special rules should be obtained from the applicable clerk of court. These rules may only supplement, rather than replace, other requirements set forth in the state's statutes.

Costs
All courts have a set schedule of fees and costs for filing, service of pleadings and other charges. If a party to a lawsuit cannot afford filing fees, etc., they may qualify to file in forma pauperis at either minimal or no cost. Special forms are normally required to obtain this status.
A person also may qualify to obtain the services of a legal aid organization at minimal or no cost. The names, addresses and phone numbers of these organizations can be obtained from the Bar Association.

This brochure, prepared by the Public Information Committee and the Family Law Section of the Louisiana State Bar Association, is not intended to be, and is not, an all-inclusive guide to divorce law in Louisiana. Rather, it is intended to give the public an overview of some applicable principles. There are many intricate legal issues and laws not addressed in this brochure. Legal representation is recommended to ensure that all legal rights and obligations are fully understood.

For free legal information, call TEL-LAW, a collection of tape-recorded messages written by lawyers to assist you in understanding the legal system. With TEL-LAW, help is just a phone call away, 24 hours a day, 365 days a year.

TEL-LAW
1-800-4-TEL-LAW
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In Lafayette Parish, call (318) 262-5850