Louisiana Divorce Procedures

Posted by DivorceLine in Divorce Procedures in Your State on 01 26th, 2010 | no responses

Louisiana Divorce Procedures

Complete overview of Louisiana divorce laws for people considering a Louisiana divorce or filing a Louisiana divorce with issues to be resolved about child custody, child support, visitation and alimony.

Louisiana Divorce Residency Requirements

In order to file your Petition for Divorce in Louisiana, you must make sure the Judicial District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Louisiana residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

The filing spouse must be a resident for at least 12 months prior to filing. The divorce shall be filed in the parish in which either spouse resides.

Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that one hundred eighty days have elapsed from the service of the petition.

The Dissolution of Marriage is typically filed with in parish in which the filing spouse lives.

(Louisiana Code of Civil Procedure – Article: 42)

Louisiana Grounds for Divorce

The Petition for Divorce is the initial document filed with the Louisiana court. It is in the document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

A divorce may granted by the court on one of the following grounds:

No-Fault Based Grounds:
Living separate and apart for at least 180 days prior to filing.

Fault Based Grounds:
1. Adultery; 2. Felony conviction; 3. Abandonment for a period of at least 1 year; 4. Physical or sexual abuse; 5. Living separate and apart for at least 2 years; 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.

(Louisiana Code of Civil Procedure – Article: 103)

Louisiana Uncontested Divorce

This information is an overview of the uncontested Louisiana divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Louisiana.

To file for a divorce in Louisiana, the filing spouse must have lived there 12 months prior to starting the action, which must be filed in the parish of the Respondent/Defendant, put in writing, and recorded with the Recorder.

Grounds for divorce are No-Fault, which means that the filing spouse wants to end the marriage. Marital breakdown, fault, separation or any other basis for divorce common in other jurisdictions need not be shown. After the filing, if the couple live separate and apart, the divorce can be granted in 180 days, when there are no children involved, and as of January 1, 2007, one year for marriages with children.

General grounds in the case of covenant marriage are:

a) living separate and apart for two years or more after the date of the filing;
b) that the other spouse has committed adultery;
c) that he or she has committed a felony been sentenced to death or imprisonment;
d) physical or sexual abuse;
e) abandonment for a year or more.

Actions are filed in the District Court of the Parish. The filing spouse is called the Petitioner/Plaintiff; the responding spouse is called the Respondent/Defendant.

Most divorces in Louisiana are 102 or 103 No-Fault uncontested actions (so named for the section of the Louisiana Civil Code), which are both very simplified.

Under a 102 action, six months after the action is filed, and the Respondent served, the filing spouse files a motion asking that the divorce be made final. A hearing is held, at which it is proven that the spouses lived “separate and apart” for 180 days since the service of the petition. The 103 action is similar, but the 103 permits a couple to filed for divorce when they have already lived separate and apart for 180 days.

Louisiana Simplified Divorce Procedures

The new no-fault divorce grounds in Louisiana are very simplified. No answer need be made by a respondent to a Petition for Divorce filed in Louisiana. In order to obtain a final Judgment of Divorce, a motion entitled “Rule to Show Cause” must be filed with the court. However, each judicial district in Louisiana may have specific individual rules pertaining to divorce actions. Please refer to the Louisiana Rules of Court for the rules in a particular judicial district. Sample forms for use in various divorce case situations (including a sample Petition for Divorce) are contained in Louisiana Forms; Forms 370+.
[Louisiana Civil Code Annotated; Article 102, Louisiana Forms; Forms 370+, and Louisiana Code of Civil Procedure; Articles 3951 to 3956].

Louisiana Property Division Factors

In Louisiana, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Final Judgment of Divorce.

Louisiana is considered a “Community Property” state. Community property is defined as all property and debt that was acquired from the date of marriage until the marital cut-off date. The community assets will be split equally by the District Court if the spouses are unable to reach an agreement.

All separate property like gifts, inheritances, and property owned prior to the marriage will remain with each spouse and then all other property will be split equally. The court will take to consider the needs of each spouse when determining how the property is to be split and each spouse has the right to ask the court to be awarded the marital home. When deciding who should be awarded the marital home, the spouse who will have custody of the children is typically the court favorite. When making this decision regarding the marital home, the court will consider the following factors: the value of the spouse’s property, the economic needs and circumstances of each spouse; the needs of the children; and also the court will consider on a case-by-case the contributions each spouse made to the acquisition of the community property s well as future earning potential.

(Louisiana Code of Civil Procedure – Article: 121)

Louisiana Spousal Support/Maintenance/Alimony Factors

In Louisiana the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:

In determining the entitlement of spousal support, the court will consider the following factors: a) The financial needs of the parties; b) The income of the parties; c) The financial obligations of the parties; d) The current and future earning capacity of the parties; e) The effect of any custody award; f) The time necessary for the claimant to acquire appropriate education, training, or employment; g) The health and age of the parties; h) The length of the marriage; i) The tax repercussions.

Louisiana Child Custody Factors

In Louisiana, the court will keep the best interests of the children at the fore front of all custody decisions by considering:

1. The love, affection, and other emotional ties between each party and the child.

2. 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.

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

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

5. The permanence, as a family unit, of the existing or proposed custodial home or homes.

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

7. The mental and physical health of each party.

8. The home, school, and community history of the child.

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

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

11. The distance between the respective residences of the parties.

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

(Louisiana Code of Civil Procedure – Article: 131, 132, 133, 134)

Louisiana Child Support Factors

Both parents are obligated to support any children of a marriage. The factors for consideration listed in the statute are: a) the needs of the child and; b) the actual resources of each parent.

In addition, Louisiana has adopted detailed Child Support Guideline provisions which are contained in the statute. These guidelines are presumed to be correct, unless 1 of the following factors make the guidelines unjust or not in the best interests of the child: a) extraordinary medical expenses of the child or parent responsible for support payments; b) the permanent or temporary total disability of the parent responsible for support; c) the need for immediate or temporary support; d) an extraordinary community debt of the parents; e) that the combined income of the parents is less than that in the guideline charts; and f) any other relevant consideration.

Louisiana Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted to the parents of a deceased parent or parent who has been declared legally incompetent if it is found to be in the best interest of the child. Louisiana Statutes AnnotatedRevised Statutes, Article 9:344 (LSA-R.S. 9:344), and Children’s Code, Article 1264 (Ch. C Art. 1264).

When Adoption Occurs: The natural parents of a deceased party to a marriage dissolved by death and the parents of a party who has forfeited his right to object to the adoption of his child pursuant to Article 1245 of the Children’s Code may have limited visitation rights to a minor child who has been adopted.

Child Custody Statutes: Joint legal custody is preferred and presumed best for the child. Parties must submit a joint custody plan. If one party requests sole custody, he or she must prove it is in the child’s best interest considering the following factors: a) the child’s love, affection and emotional ties with each parent; b) capacity and disposition of the parties to give love, affection, guidance, education, and religious guidance; c) capacity and disposition of the parties to give the child food, clothing, medical care, etc.; d) length of time the child has been in a stable, satisfactory environment, and the desirability for continuity; e) permanence as a family unit of the existing or proposed home; f) moral fitness of the parties; g) mental and physical health of the parties; h) home, school and community record of the child; i) preference of the child, if old enough; j) willingness of each party to facilitate a relationship between the child and the other spouse; k) distance between parties residences; and l) any other factor the judge decides is proper (except race). LSA-C.C., Art. 131 et seq.

Parents May Choose: Yes

Louisiana Military Divorce Laws

A Louisiana military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Louisiana Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Louisiana court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Louisiana court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Louisiana
b) You or your spouse must be stationed in Louisiana

Grounds for Louisiana Military Divorce

The grounds for a military divorce in Louisiana are the same as a civilian divorce.

Dividing the Property

Along with the normal Louisiana property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Louisiana, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Louisiana child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Louisiana Child Support Guidelines

The Louisiana child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Louisiana child support order.

Louisiana Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES

* The Income Shares Model: Louisiana child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Louisiana child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Louisiana Child Support Definitions

Definitions

1. “Adjusted gross income” means gross income, minus amounts for preexisting child support or spousal support obligations paid to another who is not a party to the proceedings, or on behalf of a child who is not the subject of the action of the court.

2. “Combined adjusted gross income” means the combined adjusted gross income of both parties.

3. “Extraordinary medical expenses” means uninsured expenses over one hundred dollars for a single illness or condition. It includes but is not limited to reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, uninsured chronic health problems, and professional counseling or psychiatric therapy for diagnosed mental disorders.

4. “Gross income” means:

a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;

b) Expense reimbursement of in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent’s personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals; and

c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. “Ordinary and necessary expenses” shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

d) As used herein, “gross income” does not include:

1) Child support received, or benefits received from public assistance programs, including aid to families with dependent children, supplemental security income, food stamps, and general assistance.

2) Per diem allowances which are not subject to federal income taxation under the provisions of the Internal Revenue Code.

3) Extraordinary overtime or income attributed to seasonal work regardless of its percentage of gross income when, in the court’s discretion, the inclusion thereof would be inequitable to a party.

5. “Health insurance premiums” means the actual amount paid by a party for providing health insurance on behalf of the child. It does not include any amount paid by an employer or any amounts paid for coverage of any other persons. If more than one dependent is covered by health insurance which is paid through a lump-sum dependent-coverage premium, and not all of such dependents are the subject of the guidelines calculation, the cost of the coverage shall be prorated among the dependents covered before being applied to the guidelines.

6. “Income” means:

a) Actual gross income of a party, if the party is employed to full capacity; or

b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or the underemployment results through no fault or neglect of the party.

c) The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

7. “Net child care costs” means the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care.

Deviation from Guidelines by Court

A. The guidelines set forth in this Part are to be used in any proceeding to establish or modify child support filed on or after October 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support.

B. The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.

1) The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household.

2) The extraordinary medical expenses of a party, or extraordinary medical expenses for which a party may be responsible, not otherwise taken into consideration under the guidelines.

3) An extraordinary community debt of the parties.

4) The need for immediate and temporary support for a child when a full hearing on the issue of support is pending but cannot be timely held. In such cases, the court at the full hearing shall use the provisions of this part and may redetermine support without the necessity of a change of circumstances being shown; or

5) The permanent or temporary total disability of a spouse to the extent such disability diminishes his present and future earning capacity, his need to save adequately for uninsurable future medical costs, and other additional costs associated with such disability, such as transportation and mobility costs, medical expenses, and higher insurance premiums.

6) Any other consideration which would make application of the guidelines not in the best interest of the child or children or inequitable to the parties.

Louisiana Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Louisiana Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Divorce with the court.

Court Name:
__________ Judicial District Court Parish of ___________ , Louisiana

The proper name of the court in which a Divorce is filed in the state of Louisiana. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Divorce

The title and name of the legal document that will initiate the Louisiana Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Judgment of Divorce

The title and name of the legal document that will finalize the Louisiana Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
District Clerk’s Office

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for legal separation (separation from bed and board) in Louisiana are the same as those for divorce from a covenant marriage (with the addition of habitual drunkeness). However, a spouse may petition the court for spousal and/or child support and restitution of separate property during a marriage. This is intended to provide for those spouses who desire to live apart, but not divorce.

[Louisiana Statutes Annotated; Article 9, Chapters 291 and 307].

Property Distribution:
Community Property

The applicable Louisiana law that will dictate how property and debt is to be divided upon Divorce.

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