- How long does it take to get divorced in Louisiana?
- What if I have entered into a covenant marriage?
- How does the legal process for divorce, child custody, child support, contempt etc. work?
- How is custody of children determined?
- Who gets custody of the child if the mother dies and was never married to the father and there is no order of custody in place?
- What types of custody are there in Louisiana?
- When would custody be awarded to non-parents?
- If the terms of my current order regarding child custody or visitation are not working now, can I change it?
- What if I or my children’s other parent wants to move out of Louisiana?
- How is child support calculated?
- How is spousal support (alimony) in Louisiana determined?
There are a few ways to obtain a divorce in Louisiana through both no-fault grounds and fault grounds. Louisiana only has two fault-based grounds for divorce: adultery and when a spouse is convicted of a felony and sentenced to death or to imprisonment at hard labor. In order to obtain an adultery fault-based divorce, adultery must be proved at trial by corroborated testimony. Admission of adulterous behavior by the spouse alone is not sufficient. The proof must be specific. We can discuss the details of adultery-based divorce, including whether your proof is specific enough in the eyes of the court and when it would be beneficial for you to obtain a divorce based upon adultery.
No-fault divorces in Louisiana are much more common. Louisiana Civil Code Article 102 permits a divorce after the spouses have lived separate and apart continuously for either 180 days if there are no minor children of the marriage or for 365 days if there are minor children of the marriage after service of the petition of divorce or written waiver of service. It is a frequent misconception that the parties are automatically divorced after this time period has run. In order to finalize the parties’ divorce, after the required time period has run, either party may file a rule to show cause to set the matter for hearing. At the hearing, you will have to testify to certain facts that will allow the Judge to grant the Final Judgment of Divorce. In certain cases, it is possible to avoid having to attend a hearing and obtain a divorce by stipulation of the parties.
You can also obtain a no-fault divorce through Louisiana Civil Code Article 103(1), which is applicable when the spouses have been living separate and apart for either 180 days or 365 days or more before the petition for divorce is filed. The physical separation must be voluntary on part of at least one party. Usually divorces are obtained under Article 103(1) fairly quickly since the parties were physically separated prior to the petition for divorce being filed.
In 1997, the legislature created a new type of marriage called a “covenant marriage” This type of marriage is subject to special rules for formation, counseling and termination. A covenant marriage is one in which the parties must 1) receive special counseling, 2) declare their intent to contract a covenant marriage on their application for a marriage license, and 3) execute a notarized declaration of intent to contact a covenant marriage. The parties to a covenant marriage commit to take all reasonable efforts to preserve the marriage, including marriage counseling, which must begin once the parties experience marital difficulties and continue until the rendition of the divorce. Counseling is not required, however, when the spouse or child of either spouse has been physically or sexually abused by the other spouse. A covenant marriage cannot be dissolved, rescinded or terminated by the mutual consent of the spouses.
The spouses of a covenant marriage become legally separated through a judgment of separation only after counseling and only if one of the following grounds exists: : 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 marital domicile for one year and refuses to return, 4) the other spouse has physically or sexually abused the spouse seeking a divorce or the child of one of the spouses, 5) the spouses have been living separate and apart for two years, or 6) the other spouse is habitually intemperate or engages in other excesses, cruel treatment of other outrageous conduct of such nature as to render living together insupportable.
A covenant marriage can be terminated by divorce only after counseling and only if one of the following grounds exist: 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 marital domicile for one year and refuses to return, 4) the other spouse has physically or sexually abused the spouse seeking a divorce or the child of one of the spouses, 5) the spouses have been living separate and apart for two years, 6) the spouses have been living separate and apart for one year from a judgment of separation if they are childless, 7) the spouses have been living separate and apart for one and a half years if they have a child, unless child abuse was the basis for the separation, in which case the spouses need only live apart for one year after judgment of separation.
Generally, a client will meet with me for an initial consultation during which we will go over all of the details of your case and develop a plan of action for how to proceed. Once I have answered all of your questions and you have retained me to represent you, I will prepare the pleading for you and include a request for all of the relevant matters specific to your case, whether it is child custody, child support, spousal support, partition of the community, etc. We will work together to finalize this document and schedule a time for you to come to my office to review and sign the pleading.
Once I have the finalized pleading signed by you, I will send it with a runner (or via fax file or mail, depending on the parish it will be filed in) to be filed with the clerk of court. From this point, all parishes in Louisiana handle domestic proceedings differently. For example, in Jefferson and St. Tammany Parishes, upon the filing of a Petition for Divorce, you are generally given two hearing dates – one for a hearing officer conference and one for a hearing before the Judge. Whereas in Orleans, St. Charles, St. John and Plaquemines Parishes, as well as others, the hearing officer system has not been implemented and your case is automatically set before the Judge.
In a proceeding for a divorce or thereafter or during an initial custody proceeding between unmarried parents, the court shall always award custody based upon the best interest of the child. The court will look to a list of factors to assist in making the determination of the best interest of the child. The weight to be afforded each factor is in the sole discretion of the court. The factors are set forth in Louisiana Civil Code Article 134 as follows:
1) Emotional Ties – the love, affection and emotional ties between the party and the child
2) Ability to Nurture – the capacity and disposition of the party to give love and guidance, and to continue the child’s education and rearing
3) Ability to Provide – the capacity of the party to meet the child’s material needs
4) Prior Relationship – the length of time the child has lived in stable and adequate environment, and the desirability of continuing that environment
5) Stability – the permanence, as a family unit, of existing or proposed custody home
6) Moral Fitness – the moral fitness of the party, as it affects the child
7) Health – the party’s mental and physical health
8 ) History – the home, school and community history of the child
9) Preference of the Child – the reasonable preference of the child, if the court deems the child to be old enough to make this decision
*Note: Keep in mind that the preference of the child is only one of several factors and certainly not the only consideration of the court when determining or modifying custody. Further, the court has vast discretion to allot weight to this factor as it feels appropriate.
10) Cooperation with Other Party – the willingness and ability of the party to foster the child’s relationship with the other party.
* Note: The court feels very strongly about this factor and gives a great amount of weight to the circumstances surrounding each party’s cooperation or willingness to foster the child’s relationship with the other party.
11) Location – the distance between the parties’ residences
12) Past Caregiver – the responsibility for care of the child previously exercised by the parties.
* Note: Remember that in a divorce proceeding, you are essentially setting a precedent for custody and a visitation schedule during the period of physical separation prior to the final determination of custody. In a situation where the parties were never married but custody is now being determined, you and the child’s other parent have set a precedent which the court will look to regarding a visitation schedule or how often the non-custody parent visits with the child since the child’s birth.
5) Who gets custody of the child if the mother dies and was never married to the father and there is no order of custody in place?
The mother is considered the “tutor”, or guardian, of the child when the child has not been formally acknowledged by the father or has been acknowledged by the father alone without the mother’s concurrence (i.e., when there has been no order of custody put in place). Upon the mother’s death, the court gives first consideration to appointment as tutor to either her parents or siblings and second consideration to the child’s father, always taking into consideration the best interest of the child. If, however, the mother appoints a tutor by will, that appointee becomes the child’s tutor if approved by the court. It is important for unmarried parents to have custody established by the court in order to solidify their legal rights to their child.
Louisiana law strongly prefers joint custody. Generally, joint custody occurs where one party is designated as the domiciliary parent. The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents. Joint custody obligates both parents to exchange information concerning the health, education and welfare of the child and to confer with one another in exercise decision-making authority. Ultimately, however, the domiciliary parent shall also have the authority to make all decisions affecting the child. All major decisions (i.e. medical, social, educational and religious decisions) made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
If custody to either parent would result in substantial harm to the child, custody will then be awarded to another person with whom the child has been living in a stable and wholesome environment, or otherwise to any person able to provide an adequate and stable environment.
8 ) If the terms of my current order regarding child custody or visitation are not working now, can I change it?
Yes, custody and visitation orders are always modifiable and always based upon the best interest of the child; however, you must prove to the court why you are entitled to modify the current order that is in place. The burden of proof required for the court to modify the current order differs depending upon how your order of custody was determined.
If you received a custody order based upon going to court and the Judge made a “considered” determination of custody, you must prove that a change in circumstances has occurred such that “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.”
If you and the other parent entered into a Consent Judgment and no evidence of parental fitness was officially placed into the record and considered by the trial court, the stringent burden of proof above does not apply. A parent seeking modification of a Consent Judgment of custody must show that there has been a material change in circumstances and that the proposed medication is in the best interest of the child.
The Louisiana legislature has recently adopted new laws governing the moving of a residence of a child subject to an order of custody or visitation. A parent with sole custody, a domiciliary parent or a parent who shares equal physical custody of the child must notify the other parent of a proposed relocation of the child’s principal residence. Notice must be made by registered or certified mail, return receipt requested, 60 days before the proposed relocation. Failure to provide notice may constitute a change in circumstances warranting a modification of custody.
After notice is made, the parent seeking the relocation must obtain court authorization, after a contrary hearing, to relocate or must get the written consent of the other parent prior to relocating. The court will consider various factors to determine whether relocation is in the best interest of the child. The court may also appoint an independent mental health expert to assist in its determination.
The court may order either parent to provide child support to the other parent based upon the needs of the child or children and the ability of the parents to pay. In 1989, the Louisiana legislature adopted the “income shares” model to calculate child support obligations using the number of children at issue and the gross monthly income of each parent. When you meet with me for your initial consultation, I will be able to calculate a ballpark idea of the child support you will receive or be obligated to pay so long as you have a general idea of how much the other parent makes per month.
If either parent is employed in a job where cash is frequently exchanged, such as a waitress or painter, or where one party is making extra money through detail work or side jobs, the court will generally apply extra income to the child support calculate for that parent to compensate for this “unreported” income. We can discuss this in more detail during our meeting.
Income is also imputed in situations where one party is voluntarily unemployed or underemployed, however, no income is attributed to the unemployed parent who is caring the a child under the age of five.
The court will subtract any pre-existing child support order or spousal support obligation paid to another person who is not a party to the proceeding, or on behalf of another child.
The court will also add the cost of health insurance and net child care costs to the basic support obligation to compute the total child support obligation. Further, the extraordinary medical expenses (such as orthodontist, physical therapy, psychiatric therapy, etc.), transportation expenses or other special expenses of the child may be added by either agreement of the parties or court order.
Child support is paid for an unmarried child who is dependent on parents, has not graduated from high school and is a full-time student in good standing, until the child’s 19th birthday or graduation from high school, whichever occurs first. Child support continues with respect to a developmentally disabled child until the child turns 22 as long as the child is a full-time student in a secondary school.
Be aware that child support does not terminate automatically upon the child reaching the appropriate age. It is the payor party’s responsibility to request that the court formally terminate the child support through a valid court order.
Furthermore, if you have more than one child which you are paying child support on behalf of, more likely than not the most recent child support order was made in globo, which means that it was a lump sum amount for all of the children. When a child support award is fashioned in this way, the full child support obligation continues until the youngest child reaches the age of majority; however, the payor parent can file a rule to reduce child support when one of the children reaches the age of majority. It is not okay for you to unilaterally stop paying the full amount of child support and only pay a smaller amount once the oldest child reaches the age of majority. You are legally required to have a formal court order regarding the child support reduction.
11) How is spousal support (alimony) in Louisiana determined?
In 1997, the Louisiana legislature reworked the laws governing spousal support, which was formerly referred to as alimony. There are now two types of spousal support in Louisiana: interim spousal support and final spousal support.
Interim Spousal Support
Upon motion of a party or when a request for final spousal support is pending, the court may award a party interim spousal support based upon the “needs and means test”. The court will look to the needs of that party, the ability of the other party to pay and the standard of living that the parties were accustomed to during the marriage. The purpose of interim spousal support is for the parties to maintain the status quo without unnecessary economic disturbance until a determination of the amount of final support can be made and until a period of time for adjustment elapses that generally does not exceed six months after the judgment of divorce.
The trial court is vested with a great deal of discretion in determining whether and how much interim spousal support to award. Fault of the breakup of the marriage is irrelevant when the court is determining interim spousal support. Even a party who is at fault can receive interim spousal support, as it’s purpose is to allow the parties to continue to maintain the same standard of living each was accustomed to during the marriage. Spouses cannot contract through a prenuptial agreement to waive interim spousal support because Louisiana views interim spousal support by a public policy standard in that you are still married even while you are physically separated and still have a duty support your spouse.
An award of interim spousal support can be modified if the circumstances of either party materially change and shall be terminated if interim spousal support has become unnecessary.
Interim spousal support shall terminate upon rendition of the final judgment of divorce, unless a claim for final spousal support is pending at the time of the rendition of the final judgment of divorce. If a claim for final spousal support is pending at the time of the rendition of the final judgment of divorce, the interim spousal support shall terminate upon the court either awarding or denying final spousal support or 180 days from the rendition of the final judgment of divorce, whichever occurs first.
The obligation of spousal support is terminated upon remarriage of the recipient spouse, death of either party or the judicial determination that the recipient spouse has cohabitated with another person in the manner of married persons.
Final Spousal Support
A court may award final periodic support to a party free from fault prior to the filing of a petition for divorce. Final spousal support is based upon the needs of the claimant and the ability of the other party to pay. The court shall consider all relevant factors in determining the amount and duration of final support, which may include the following: 1) income and means of the party, 2) financial obligations of the parties, 3) earning capacity of both parties, 4) the effect of custody of children on a party’s earning capacity, 5) the time necessary for the claimant to acquire appropriate education, training or employment, (A court may award “rehabilitative support” that terminates after a set period of time based upon this factor), 6) age and health of the parties, 7) the duration of the marriage, and 8 ) the tax consequences to both parties.
The party requesting final spousal support must prove freedom of fault that led to the break-up of the marriage. There are several types of “fault” in Louisiana, including adultery, conviction of a felony and sentence to death or hard labor, habitual intemperance or cruelty, abandonment, public defamation, attempted murder, the other spouse is a fugitive, a spouse’s failure to live up to duties of marriage, which are fidelity, support and assistance.
The award of final spousal support shall not exceed one-third of the obligor’s net income. An award for final spousal support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary.
Disclaimer: This information contained herein is intended for informational purposes only and should not be construed as legal advice