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Divorce and Legal Separation in Louisiana

Residency Requirement:

To file for divorce in Louisiana, one or both spouses must be domiciled in the state at the time of filing, and must have been a resident for one year prior to filing.

Filing:

A Plaintiff (filing party) may file a Petition for Divorce in the parish where the Defendant (non-filing party) resides, or in the parish of the last matrimonial domicile. Service of the Petition shall be requested on the Defendant within 90 days of the filing of the Petition. A divorce will not be granted until a Rule to Show Cause is filed.

The Rule to Show Cause alleges proper service of the Petition for Divorce, that the requisite period of time or more has passed since that service, and, where applicable, that the spouses have lived separate and apart for the requisite period of time. It shall be verified by the affidavit of the Plaintiff and shall be served on the Defendant. prior to being granted a divorce, unless the Defendant waives service.

Spouse?s Name:

Marriage does not change the name of either spouse. However, a married person may use the surname of either or both spouses as a surname.

Notwithstanding any other law to the contrary, a woman, at her option may use her maiden name, her present spouse?s name, or a hyphenated combination. If she is widowed, divorced, or remarried, a woman may use her maiden name, the surname of her deceased or former spouse, the surname of her present spouse, and any combination of those names.

The court may enter an order confirming the name of a married woman in a divorce proceeding whether she is the Plaintiff or Defendant, which shall be limited to the name which she was using at the time of the marriage, or the name of her minor children, or her maiden name, without complying with the statutes regarding petition for name change.

A covenant marriage in Louisiana is a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship. Parties to a covenant marriage have received counseling emphasizing the nature and purposes of marriage and the responsibilities of them.

Only when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration the marriage is no longer legally recognized.

A man and woman may contract a covenant marriage by declaring their intent to do so on their application for a marriage license and executing a Declaration of Intent to contract a covenant marriage. The application and Declaration shall be filed with the official who issues the marriage license.

Spouses in a covenant marriage are subject to all of the laws governing married couples generally and to the special rules governing covenant marriage.

Spouses are bound to live together, unless there is good cause otherwise. The spouses determine the family residence by mutual consent, according to their requirement and those of the family.

?Regular? (Non-covenant) Marriage Divorce Grounds:

A divorce may be granted, on the petition of a spouse, for a non-covenant marriage upon proof of the following grounds:

1. The spouses have been living separate and apart continuously for the requisite period of time or more prior to the filing of the Rule to Show Cause;
2. The other spouse has committed adultery; or

3. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

Requisite Periods of Time:

• 180 days when there are no minor children of the marriage;

365 days when there are minor children of the marriage at the time the Petition is filed; or

180 days when there are minor children of the marriage and the court finds that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouse; or

180 days when there are minor children of the marriage and after a contradictory hearing or consent decree, a protective order or an injunction has been issued against the other spouse to protect the filing spouse or a child of one of the spouses from abuse.

The cause of action for divorce is extinguished by the reconciliation of the parties.

Covenant Marriage Divorce Grounds:

Apart from any other law to the contrary, and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of any of the following:

1. The other spouse has committed adultery;
2. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor;
3. The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return;
4. The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses;
5. The spouses have been living separate and apart continuously without reconciliation for a period of two years; or

6. The spouses have been living 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; or if there is a minor child(ren) of the marriage, that the time frame must be one year and six month, unless abuse of a child of the marriage or of one of the spouses is the basis for which the separation from bed and board was obtained, in which case the time period is one year.

A covenant marriage agreement may not be dissolved, rescinded, or otherwise terminated by the mutual consent of the spouses.

Counseling or other such reasonable steps must be taken by the spouses to preserve the marriage one the parties experience marital difficulties, as required by the Declaration of Intent signed by the spouses. If the spouses begin living separate and apart, the counseling or other intervention should continue until the rendition of a judgment of divorce.

Counseling shall not be necessary, however, if one spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.

One or both parties must be domiciled in the state to file for annulment in Louisiana.

Prohibited Marriages:

• Marriage between persons of the same sex;

A married person may not contract another marriage;

Marriage between ascendants and descendants;

Marriage between collateral relatives (not in direct line) within the fourth degree, whether of the whole or half blood, such as brother and sister, uncle and niece, aunt and nephew;

Marriage by procuration, where one party is not present or is represented by a third party at the ceremony (such as in a mail order bride situation);

There was no free consent to enter into the marriage due to duress, or one or both parties was incapable of understanding or comprehension.

A marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. A judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by an interested person.

A marriage is relatively null when the consent of one of the parties to marry is not given freely. It may be declared null upon application of the party whose consent was not free. The marriage may not be declared null if that party confirmed the marriage after recovering his/her liberty or regaining his ability to understand or comprehend.

After the declaration of nullity of a marriage, a party entitled to the civil effects of marriage may seek the same relief as a divorced spouse.

In a proceeding for divorce or thereafter, either spouse may request injunctive relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property.

Louisiana is a community property state. All community property shall be divided equally between the spouses, unless the couple reach an agreement without a court ruling. Community property includes the following:

• Property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse;

Property acquired with community things or with community and separate things, unless classified as separate property;

Property donated to the spouses jointly;

Natural and civil fruits of community property;

Damages awarded for loss or injury to a thing belonging to the community; and

All other property not classified by law as separate property.

The separate property of a spouse is his/hers exclusively. It includes the following:

• Property acquired by a spouse prior to the establishment of a community property regime;

Property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used;

Property acquired by a spouse by inheritance or donation to him/her individually;

Damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse;

Damages or other indemnity awarded to a spouse in connection with the management of his/her separate property; and

Things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

In a proceeding for divorce or thereafter, either spouse may request spousal support. The court understands alimony to include what is necessary for the nourishment, lodging, and support of the person who claims it. Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.

The court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage.

When a spouse has not been at fault and is in need of support, based on his/her needs, and the ability of the other spouse to pay, the requesting spouse may be awarded final periodic support. The court shall consider all relevant factors in determining the amount and duration of final support, including the following:

• The income and means of the parties, including the liquidity of these means;

The financial obligations of the parties;

The earning capacity of the parties;

The effect of custody of children upon a party?s earning capacity;

The time necessary for the requesting party to acquire appropriate education, training or employment ;

The health and age of the parties;

The length of the marriage; and

The tax consequences to either or both parties.

The amount ordered may not exceed 1/3 of the paying spouse?s net income.

An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it becomes necessary. Remarriage of the paying spouse does not constitute a change of circumstance.

Spousal support shall terminate upon the remarriage of the recipient spouse, the death of either party, or a judicial determination that the recipient spouse has cohabitated with another person of either sex in the manner of married persons.

In a proceeding for divorce or thereafter, the court may award a spouse a sum for his/her financial contributions made during the marriage to education or training of the other spouse that increased that spouse's earning power, to the extent that the requesting spouse did not benefit during the marriage from the increased earning power.

The sum awarded may be in addition to a sum for support and to property received in the partition of community property. This type of award does not terminate upon the remarriage or death of either party.

In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child. The court shall award custody of a child in accordance with the best interest of the child.

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.

In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly, unless custody in one parent is shown by clear and convincing evidence to serve the best interest of the child; then the court shall award custody to that parent.

The court will consider all relevant factors in determining a child?s best interest for custody determination, including the following:

• The love, affection, and other emotional ties between each party and the child;

The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;

The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;

The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;

The permanence, as a family unit, of the existing or proposed custodial home(s);

The moral fitness of each party, insofar as it affects the welfare of the child;

The mental and physical health of each party;

The home, school, and community history of the child;

The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;

The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;

The distance between the respective residences of the parties; and

The responsibility for the care and rearing of the child previously exercised by each party.

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

A child has a right to time with both parents. Accordingly, when a court-ordered schedule of visitation, custody, or time to be spent with a child has been entered, a parent shall exercise his rights to the child in accordance with the schedule unless good cause is shown. Neither parent shall interfere with the visitation, custody, or time rights of the other parent unless good cause is shown.

Educational Seminar:

When the facts and circumstances of a particular case warrant it, a court may require the parties in custody or visitation proceeding to attend and complete a court approved seminar designed to educate and inform the parties of the needs of the children.

The participant must take part in the program for a minimum of three hours, but no more than four hours and the cost shall not exceed $25 per person. The seminar shall focus on the development needs of children, with emphasis on fostering the child?s emotional health. The seminar shall be informative and supportive and shall direct people who want more information or help to appropriate resources.

Custody:

In any proceeding for child support, either party may raise any issue relating to child custody or visitation, or both, and the court may hear and determine that issue if all parties consent.

Family Violence and Abuse:

When the court finds that a parent has subjected his/her child to physical abuse or sexual abuse or exploitation, or has permitted that type of treatment and abuse, the court shall prohibit visitation between the abusive parent and the abused child until the parent proves that visitation would not cause physical, emotional or psychological damage to the child. If visitation is allowed, the court will order such restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.

There is a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children.

Joint Custody:

Joint custody means each parent has physical custody of the child for an approximately equal amount of time. The court order shall allocate the time periods that each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.

To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. The order shall allocate the legal authority and responsibility of the parents. In a joint custody decree, the court will generally designate a domiciliary parent, who is the parent with whom they shall primarily reside. Although, the other parent shall have physical custody during time periods that

Support:

Louisiana used the Income Shares Model to determine child support. The court shall determine the basic child support obligation amount from an established schedule by using the combined adjusted gross income of the parties and the number of children involved in the proceeding.

The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his/her proportionate share of the combined amount. The amount obtained for each party is his/her percentage share of the combined adjusted gross income.

Each party shall provide the court with a verified income statement showing gross income and adjusted gross income, with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party.

If a party is voluntarily unemployed or underemployed, his her gross income shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.

Net child care costs shall be added to the basic child support obligation. The net child care costs are determined by applying the Federal Credit for Child and Dependent Care Expenses, provided by the IRS, to the total or actual child care costs.

The court may order one of the parties to enroll or maintain an insurable child in a health benefits plan, policy, or program. In determining which parent, the court shall consider each party?s individual group, or employee?s health insurance program, employment history, and personal income and other resources. The cost of health insurance premiums for the child will be added to the basic child support obligation.

The following other expenses with be added to the basic child support obligation:

• Extraordinary medical expenses;

Tuition expenses, registration, books and supply fees for special or private elementary or secondary school;

Transportation expenses for transporting the child from one party to the other; and

Special expenses for child rearing intended to enhance the health, athletic, social, or cultural development of a child, such as camp, music or art lessons, travel, and school-sponsored extracurricular activities.

In cases of joint custody, the court shall consider the period of time spent by the child with the non-domiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.

If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than 73 days, the court may order a credit to the child support obligation.

When there is a child support award in a specific amount per child, the award for each child shall terminate automatically, without any action by the paying parent, as each child reaches the age of majority, or becomes emancipated, unless the child is a full-time student in good standing in a secondary school or its equivalent, has not reached the age of 19 years, is dependent upon either parent and is unmarried.

When there is a child support award in globo (as a unit rather than separately) for two or more children, the award shall terminate automatically and without any action by the paying parent, when the youngest child attains the age of majority or is emancipated, unless the child is a full-time student in good standing in a secondary school or its equivalent, has not reached the age of 19 years, is dependent upon either parent and is unmarried.

If the child has a developmental disability, child support continues until he/she reaches the age of 22 years, as long as the child is a full-time student in a secondary school.

Louisiana does not recognize legal separation for non-covenant marriage.

The state does have provisions for Separation from Bed and Board for Covenant Marriages.

Covenant Marriage Separation from Bed and Board:

Separation from bed and board in a covenant marriage puts an end to the couple?s conjugal cohabitation, and to the common concerns, which existed between them.

Spouses who are judicially separated from bed and board in a covenant marriage shall retain that status until either reconciliation or divorce.

In a proceeding for a separation from bed and board in a covenant marriage, a court may award a spouse all incidental relief afforded in a proceeding for divorce, including spousal support, claims for contributions to education, child custody, visitation rights, child support, injunctive relief and possession and use of a family residence or community movables or immovables.

Grounds for Separation from Bed and Board:

The grounds for Separation from Bed and Board are nearly identical to those for Divorce, with the exception of the last ground. Apart from any other law to the contrary, and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of separation from bed and board only upon proof of any of the following:

1. The other spouse has committed adultery;
2. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor;
3. The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return;
4. The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses;
5. The spouses have been living separate and apart continuously without reconciliation for a period of two years; or
6. On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if the habitual intemperance or ill-treatment is of such a nature that it renders their living together insupportable.

Residency Requirements:

One or both spouses must be domiciled in Louisiana and the ground alleged was committed or occurred in the state or while the matrimonial home was in the state. If the ground alleged occurred outside the state and either or both spouse were domiciled elsewhere, the spouse filing for separation from bed and board must be domiciled in the state prior to the time the cause of action accrued and is domiciled in the state at the time the action is filed.

Filing:

An action for separation from bed and board shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.

Worksheet for calculation of child support under Revised Statutes 9:315.8 and 315.10.

Text of Louisiana?s Civil Code. Includes laws regarding residency requirements, covenant marriage, property distribution, alimony and more.