Louisiana Divorce Law Firm
A divorce is one of the ways a marriage can be terminated. Divorce can be no-fault or for fault in Louisiana. In Louisiana, no-fault divorce is available when the spouses have lived separate and apart for at least six months, or one year if there are minor children of the marriage. Fault-based divorce occurs if there was adultery, one spouse commits a serious felony, or for instances of serious abuse against the other spouse or a child.
Then within the divorce proceeding, there are often “incidents of divorce” that must also be resolved. If there are children of the marriage, these incidents include custody, visitation, and child support. There are further incidents of divorce pertaining to the spouses themselves including partition of the community, reimbursements, temporary spousal support, permanent spousal support, and injunctions against untoward behavior. If you are going through a divorce be sure to retain the services of an experienced family law attorney.
Uncontested Divorce versus Contested Divorce
An uncontested divorce is when both spouses agree to all the terms of the divorce. A contested divorce is when the spouses cannot agree and must go through the entire divorce process and ultimately have a judge make the final decisions.
Uncontested divorces are usually easy on the parties and because they’re so straight-forward they can often be quoted a flat-fee for the legal services. An uncontested divorce can be as simple as only dissolving the marriage if there are no minor children involved, no community property to partition, and no other incidents of divorce. Even with children and/or property, a divorce can still be uncontested if the parties are in complete agreement as to the custody schedule, any support obligations, and how they will divide the property.
A contested divorce is usually much more involved, drawn out, and costly. All the issues will have to be litigated or mediated. It can be especially hard on the children. Because of this, we always advocate that our clients do their best to work out the issues civilly, but unfortunately it takes two to tango. When negotiations breakdown, we are ready to fight for our client’s rights. Our family law attorneys have decades of experience handling both uncontested and contested divorces.
Types of Divorce
Often a surprise to people is that there are options as to how to get divorced. These options offer differing timeframes of when the divorce will be final, different times at which to file the divorce petition, and different burdens of proof. You should hire a seasoned divorce attorney to help advise you of the best route to take because each can have profound financial impacts.
In Louisiana, married persons can get divorced without any marital breakdown other than “irreconcilable differences” or simply because they want to. All that is required is that they live separate and apart without reconciliation for the requisite amount of time. Per La. Civ. Code art. 103.1, the spouses must live separate and apart for either 180 days if there are no minor children of the marriage, or 365 days if there are minor children of the marriage. The reasoning behind requiring more time when there are children is the public policy that children are generally better served growing up in a nuclear family and the parents should have more time to reconcile.
There are two options for a no-fault divorce. In an art. 102 divorce, one of the parties files the divorce petition before they live separate and apart. The clock begins running when the petition is served on the other spouse or when a service waiver is executed. In an art. 103(1) divorce, the divorce petition is filed after the spouses have lived separate and apart for the requisite amount of time.
The distinction may seem arbitrary, but there is a significant strategical consideration to take into account. When the divorce is finalized, the community property regime ends retroactively to the filing of the divorce petition. Thus, if one spouse earns more money than the other it is beneficial to file a 102 divorce because his or her earnings from the date of filing the 102 petition will ultimately be deemed to be separate property.
If the spouses file a 103 divorce, all their earnings during their separation will still be considered community property. Despite this significant impact, 103 divorces remain common. Because spouses often separate months before seeking out counsel and learning of this impact, the clock would reset if they were to then file a 102 divorce. This is why it’s important for divorcing couples to seek out legal advice as soon as possible after they separate.
Fault Based Divorce
A divorce can also be granted for fault under certain circumstances. Per La. Civ. Code art. 103(2)-(5), a fault-based divorce can be granted if the other spouse committed adultery, committed a felony and is sentenced to death or hard labor, physically or sexually abused the spouse seeking divorce or a child of either spouse regardless if they are prosecuted, or if a protective order is issued during the marriage to protect from abuse the spouse seeking the divorce or a child of either spouse.
The spouse seeking a fault-based divorce has the burden of proving the fault. Obviously, some faults are easier to prove than others. For instance, proving someone is in prison is much easier than proving adultery occurred. Just as in a no-fault divorce, choosing to pursue a fault-based divorce has significant financial impacts. In addition to the community regime ending retroactive to the filing of the petition, a spouse who is at-fault in a divorce is barred from being awarded permanent spousal support or alimony.
For example, a spouse who doesn’t work or earns far less than the other may be entitled to permanent alimony after the conclusion of the divorce, but if that spouse committed adultery it may be worth the trouble of proving that the adultery occurred to the bread-winning spouse. Conversely, if the bread-winning spouse committed adultery, it may be wise for the other spouse to still wait to file a 103(1) no-fault divorce so that the community regime lasts longer. However, in instances of fault, especially abuse, it may help sway the judge in awarding a favorable custody order to the non-abusing spouse. This consideration will often outweigh the benefit of the community regime being prolonged.
As you can see, there are many factors to take into consideration when deciding whether to seek a fault-based or no-fault divorce, and which of the no-fault divorces to file. Our divorce lawyers can analyze your situation and advise you of the most beneficial course of action.
Louisiana law offers something called “covenant marriages” to marrying spouses. In 1997, the Louisiana Legislature passed the nation’s first covenant marriage law in an attempt to lower divorce rates. The law describes a covenant marriage as a marriage entered into with the understanding that the marriage between them is a lifelong relationship. They agree that a no-fault divorce is not an option, agree to attend marriage counseling before a divorce can be granted, and must attend pre-marital counseling. Covenant marriages are usually entered into by very religious people.
Per La. R.S. 9:307, a divorce between spouses in a covenant marriage must be for fault, namely abuse, abandonment of at least a year, adultery, commission of a serious felony, or long separation of two years or more. The spouses must also attend marriage counseling from the time of their separation until the rendition of the divorce decree, with the aim to convince the spouses to forgive one another. Counseling is not required only in instances of abuse.
An annulment is not a divorce, but rather a termination of an invalid marriage. On the other hand, a divorce dissolves a valid marriage. An annulment declares that no valid marriage ever existed because of an impediment of the marriage. The nullity can be absolute or relative. If there is an absolute nullity, it is as if the marriage never existed. If there is a relative nullity, the marriage is voidable but it is necessary to obtain a judicial declaration of the nullity of the marriage.
Per La. Civ. Code art. 87, for a marriage to be valid, there must be an absence of legal impediments, there must be a ceremony, and both spouse must give free consent. Impediments include one of the spouses having an existing marriage, marriages between certain relatives, and marriages between minors and adults. Consent is not free when given under duress or by someone with a mental incapacity.
Per La. Civ. Code art. 94, a marriage is absolutely null when contracted without a marriage ceremony or in violation of an impediment. For an absolute nullity, a judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person and is recommended. Even though an absolutely null marriage never truly existed, the marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith.
Per La. Civ. Code art. 95, a marriage is relatively null when the consent of one of the parties to marry is not freely given. Such a marriage may be declared null upon application of the party whose consent was not free, meaning a judicial declaration is necessary. The marriage may not be declared null if that party confirmed the marriage after recovering his or her liberty or regaining his or her mental capacity. A relatively null marriage produces civil effects until it is declared null.
New Orleans Divorce Attorneys
Bowes, Petkovich & Palmer, LLC is a Gretna law firm that has served the New Orleans area since 1980. Our experienced family law attorneys are well versed in all domestic matters including divorce and its related issues. We take pride in offering a personal and trusted experience. Call us today for a free consultation and find out why so many of our clients come back to us.