Divorces by Mac :: Divorce

Marriages in Louisiana are terminated in four ways:

Death of either spouse
Divorce
Declaration of nullity of the marriage
Presumption of death

DIVORCE: Grounds for Divorce in Louisiana

Living Separate and Apart for the requisite amount of time required under the statute

Living separate and apart for 180 days in cases where there are no minor children of the marriage or 365 days where there are minor children of the marriage either before the filing of the petition or after the filing of the petition.

Special rules may apply when the parties have confected a covenant marriage or when there has been a finding of physical or sexual abuse.

The action can be defeated if the parties reconcile by resuming to live together with a mutual intent to resume the marriage.

Adultery

Adultery on the part of the opposite 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 required beyond a mere admission by the opposite spouse; 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 immediate 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.
The following marriages are absolutely null and are considered as having never occurred. These types of marriages are absolutely null, therefore there is no need for a judicial declaration.
The marriage was contracted without a ceremony.
Stand-ins were used (procuration).
It was a bigamous marriage.
It is precluded by a familial relationship.

Presumption of Death

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.

FREQUENTLY ASKED QUESTIONS ABOUT FILING FOR DIVORCE IN LOUISIANA

Can I file for a divorce without a lawyer?

Yes. The law allows you to file for a divorce without a lawyer. However, it is always better to seek the assistance of a lawyer, especially if you have children and/or community property. You should also keep in mind that neither the Judge nor the Clerk of Court’s office can give you legal advice. If you decide to represent yourself, the court will hold you to the same standard as people who are represented by lawyers. If you are unsure if you need an attorney, call my office to schedule a legal consultation.

When does a marriage terminate?

Article 101 of the Louisiana Civil Code provides that marriage terminates upon: (1) the death of either spouse; (2) divorce; (3) a judicial declaration of its nullity, when the marriage is relatively null; and (4) the issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law. It should be noted that Louisiana no longer has an action for legal separation (except in the case of a covenant marriage).

Does Louisiana allow legal separations?

It depends. For traditional, non-covenant marriages, Louisiana no longer has an action for a legal separation. Couples that were legally separated before the action was repealed are still considered to be separated. However, for covenant marriages, which are far less common than traditional marriages, there is an action for separation from bed and board. If you are unsure if you entered into a covenant marriage, you probably did not. However, this will be noted on your marriage certificate.

Legal separations are different than the physical separation which occurs when couples live separate and apart prior to obtaining a no-fault divorce. A couple can live separate and apart for purposes of obtaining a divorce, but will not be declared legally separated (unless they have a covenant marriage).

Does Louisiana have common law marriages?

No. Couples in Louisiana are not considered married unless they have obtained a marriage license and had a marriage ceremony, regardless of how long the couple has lived together. Louisiana does recognize couples as married who are considered to have a common law marriage in another state. For example, if you and your spouse have a common law marriage in another state and then move to Louisiana, your marriage may be recognized in Louisiana.

What happens if I reconcile with my spouse?

Article 104 of the Louisiana Civil Code provides: “The cause of action for divorce is extinguished by the reconciliation of the parties.” The effect of reconciliation is to wipe the slate clean to make the issue of a party’s fault prior to reconciliation moot as to any subsequently filed action for divorce. This means that if you reconcile with your spouse and resume living together after living separate and apart, the time you spent living and apart prior to reconciliation will not count toward the requirements for a 103 divorce.

Reconciliation cannot be effected without cohabitation and resumption of marital status. Reconciliation is a defense, meaning that if you file for a divorce and your spouse doesn’t want to get divorced, then your spouse can prevent the divorce if they can prove that you two have reconciled. Sexual activity, without resuming living together, is generally not enough to conclusively prove reconciliation.

What kinds of divorces are there? What’s the difference?

The Louisiana Civil Code provides for two types of divorces for spouses in traditional, non-covenant marriages: (1) an Article 102 divorce, and (2) an Article 103 divorce. Divorces for spouses with a covenant marriage are not discussed here.

Article 102 provides for a no-fault divorce for marriages with or without minor children. Article 102 no-fault divorces are for spouses who have not yet been living separate and apart for the required waiting period, which is either 180 or 365 days. If there are no minor children, or if there is physical or sexual abuse, then the waiting period is 180 days or less. If there are minor children of the marriage, then the waiting period is 365 days. Unless adopted, children from outside the marriage do not count in factoring the necessary time to live separate and apart.

The advantage of an Article 102 divorce is that the community property will be terminated retroactively to the date of the initial filing of the petition for divorce. It also allows you to begin resolving incidental matters such as child custody, visitation rights, child support, property rights, and spousal support. These matters can be resolved either by mutual agreement between the divorcing couple or by court order if the couple cannot come to an agreement.

Article 103 provides for a no-fault divorce for marriages with or without minor children. Article 103 no-fault divorces are for spouses who have already been living separate and apart for the required waiting period, either 180 or 365 days as described above.

Article 103 also provides for two fault-based divorces for marriages with or without minor children. The two fault-based grounds for divorce under Article 103 are for where the other spouse has committed adultery or sentenced to death or imprisonment at hard labor for committing a felony. There is no waiting period for an Article 103 fault-based divorce.

What issues may be decided in a divorce case?

The court will decide the issue of termination or dissolution of the marriage. This is the legal term for divorce. The court will end your marriage and all the legal benefits that are a part of your marriage. The court can also decide incidental matters such as child custody, visitation rights, child support, spousal support (also known as alimony), and how to divide up certainly property.

What if my spouse has disappeared?

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.

What if my spouse does not want a divorce?

Your spouse cannot stop you from getting a divorce by refusing to "sign the divorce papers." If you can prove that you have grounds for divorce under Louisiana law, you can get a divorce. It is the Judge and not your spouse, who decides to grant you a divorce. Even if your spouse ignores the divorce case completely, you can still ask for a divorce.

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