Louisiana Divorce Recovery

Child Custody

Louisiana courts presume that joint custody of the children is in the children's best interest, unless conditions exist to modify that. Traditionally Mothers have been awarded child custody (physical or legal custody) in most cases, but courts are now giving Fathers primary custody in greater numbers. Today Fathers get primary custody of their children about 20% of the time.

Louisiana divorce laws stipulate that parents may fashion a Louisiana Parenting Plan in advance of any court ordered child custody or visitation. This means that you will have, early on, an opportunity to put parenting time plans together with your spouse. A Parenting Plan Template streamlines the process. In the event the parents are unable to agree, the court will impose its version of Child Custody and Visitation, and one of you is likely to be unhappy with the terms.

The judge will determine custody after considering relevant issues

• The love, affection, and other emotional ties between each parent and the child,
• The permanence, as a family unit, of the existing or proposed custodial home or homes,
• The moral fitness of each party,
• The mental and physical health of each parent,
• The home, school, and community history of the child,
• The distance between the respective residences of the parties,
• The responsibility for the care and rearing of the child previously exercised by each party,
• The ability of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child,
• The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment,
• The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference,
• The ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

  If the parents agree to their own terms for custody, the court will award custody in that manner unless the best interest of the child requires a different award. Should they not agree, or if the parenting agreement is not in the best interest of the child, the court will award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court will award custody to that parent.

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. In any proceeding in which joint custody is disputed, state laws permit the court to render a joint custody implementation order except for good cause shown. The implementation order will allocate the time periods during which each parent will have physical custody of the child so that the child is assured of frequent and continuing contact with both parents. The court will designate the primary custodial home. All major decisions will be made by the custodial parent and subject to the court's review.

Your ex can be made to undergo a Psych Evaluation

The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation will be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.

Concerned about the possibility of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional will provide the court and the parties with a written report. The mental health professional will serve as the witness of the court, subject to cross-examination by a party.

Who stays in the house, and who goes?

If you do not have children, and the house is a marital asset, both parties are entitled to live in the house until the divorce is resolved. Most often one party moves out, however.

When there are children of the marriage, a parent that moves out without the children tends to lose standing for again living in the house prior to the settling of the divorce. Leaving the children and your spouse in your home and moving out subjects you to potential allegations of abandonment.

In cases where the home is the separate property of either spouse, and there are children from the marriage, the spouse who has physical custody or has been awarded temporary custody of the minor children may petition for the use and occupancy of the family residence pending the division of the community property or one hundred eighty days after termination of the marriage, whichever occurs first.

More on child custody
Creating successful Louisiana Parenting Plans has never been easier, with software programs doing the bulk of the work.

[Louisiana Code of Civil Procedure - Article: 131, 132, 133, 134]

Marriage Annulment - Marital Annulment

The marriage annulment process is much like the divorce and separation process, in that one must petition the court and satisfy family law requirements to have an annulment ruling (nullity) in your favor.

You must have grounds for an annulment and provide proof

A marriage annulment is a declaration by the court that a marriage should never have taken place because it was illegal or improper to begin with. According to Louisiana divorce and family law, one of the following grounds for annulment must be proven before an annulment will be granted:

• Misrepresentation - Fraud or misrepresentation,
• Inability to Consummate a marriage - physical dysfunction,
• Addiction to Drugs - habitual addiction to drugs or alcohol and,
• Mental disability - your spouse is mentally ill either permanently or partially and the illness is affecting your married life.

Concerned about custody and visitation battles in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

More on annulments

[Louisiana Code of Civil Procedure - Articles: 94-96 ]

Child Support

Louisiana divorce laws have established guidelines to compute child support payments. This state is one of 37 states that use the 'Income Shares' model. The Income Shares Model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. In an intact household, the income of both parents is generally pooled and spent for the benefit of all household members, including any children. Louisiana child support laws create these guidelines, and are presumed to be in the best interest of the children. Considerations include the needs of the child and the resources of each parent.

You're going to have to detail your finances. And don't lie 

In order to compute a child support obligation, you'll each be required to provide to the court a verified income statement showing gross income, adjusted gross income and documentation of current and past earnings. Should a request be made for a detail of household expenses, you must provide the source of payments of household expenses.

In the past, some spouses have been known to quit jobs or get lower-paying jobs in order to have the basis for computing child support (or alimony) be lower. You might say those days are behind us. If one is voluntarily unemployed or underemployed, his or her gross income will be imputed (estimated and assigned) based on state guidelines.

Louisiana child support laws provide that in cases where a marriage annulment or marital annulment is sought, and there are children of the marriage, that those children be afforded the same rights, protections and parental financial support, including that the children are not considered illegitimate offspring of the parents, that other children of the state receive. The child support obligation ends at age 18, or at emancipation. If the child remains in high school past age 18, child support ends at age 19 or graduation, whichever comes first.

LA child support is determined by the parties combining their adjusted gross incomes (as opposed to one's net income after taxes). This effectively takes more from the paying parent. Each party then determines, by percentage, his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income. Find out how to protect your credit before you divorce:

Concerned about how your kids will do during this difficult time? Give them continuity and a sense of security by using an online Parenting Plan they can read. With an online plan you can manage the calendar, change activities, and allow your ex to view upcoming events with or without the privilege to make changes. End the fights over the schedule. Watch the video.

More on child support

[Louisiana Revised Statutes - Article 9 - Sections: 302]

How to file for no fault divorce in Louisiana

These are the steps you will take:

Louisiana offers both fault and no-fault divorces. To be granted a no-fault divorce you must have lived separate and apart from your spouse for at least 180 days. The no-fault option is sometimes referred to as a 102 or 103 no-fault uncontested action.

You should file your petition (Dissolution of Marriage) for divorce in your parish if you qualify for residency. Your petition will be accepted only if you have you have been living separately from your spouse for at least 180 days.

If you married under Covenant terms, you must show cause (cite grounds for divorce) with one of the following:

1. your spouse has committed adultery;
2. your spouse has been convicted of a felony and been sentenced to life imprisonment or at hard labor;
3. your spouse has abandoned your home for at least a year and refuses to return;
4. physical or sexual abuse;
5. have lived apart for at least two years;
6. 6 have lived apart for at least one year from an adjudged separation.

If you have kids from the marriage

Here's the deal. You and I both know you're going to have problems with visitation; whether it's dropping off and picking up, being late, last minute changes, what they wear, what they eat and on and on.

The court expects you to have a Parenting Plan agreed to and submitted before you can be divorced. A parenting plan on paper provides a framework but doesn't cover many inevitable issues that crop up. Doesn't it make sense to have the parenting plan on-line, where you edit it and your ex can view it? The calendar that is included won't necessarily make your ex more reliable, but it does allow you to document where your kids were at any given time, money spent, which parent was compliant with the court order and which wasn't, and many more features.

If the parenting plan is on paper only, it goes in a drawer collecting dust. An on-line parenting plan puts your ex on notice that you're keeping track, and acts as a powerful tool when the threat of a custody battle looms. The truth is that you won't know how valuable an on-line parenting plan is until the day it becomes important to have good records. If you have it you'll be grateful; if you don't you'll remember that you decided against it as you worry that it is your ex's word against your's. Go pick up a copy!

The Filing process

You will file the Divorce with the District Court in the parish in which you live. The filing fee at this time (subject to change) is $138. You must serve your spouse with a copy of your filings. Service can be accomplished by:

1. your spouse signs at the time of filing;
2. you must use a process server and get a signature; or
3. if you cannot locate your spouse, publication of a notice in a newspaper.

What other forms you may be required to submit will vary with each individual case. It is advisable to obtain a packet of forms that includes Louisiana divorce forms that you may need. These forms can include Complaint, Summons, Decree, Request of Judgment, Marital Settlement and a Parenting Plan.

Parish Clerks of the Court will sometimes have all the forms you need, without cost. However, if you want to avoid TWO trips there (you have to file in person) and avoid travel costs, parking, standing in lines and your travel time it probably makes sense to download a packet of forms yourself. To begin the process quickly, download Louisiana Divorce Forms now.

The Divorce Settlement Agreement may be the most challenging to complete. In this agreement you must detail how you intend to divide assets and debts (including property), child custody and child support. This agreement will be filed with your Parenting Plan document.

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

Agreeing to a Parenting Plan on-line greatly reducesfrictionand provides continuity to kids and the ex

Do not cut corners on the Louisiana Parenting Plan. Avoid basic, simple parenting plan templates. You want a plan that doesn't omit important details on how you and the ex will co-parent. Your Parenting Plan will be the document you all must follow until your children are grown. The more detailed the plan is, the fewer arguments you will have (trust us on this). The most efficient way to create the plan is to use worksheets, and About.com offers parenting plan worksheet downloads for free. Complete the forms and transfer the info into your parenting plan.

Once you’ve completed the worksheets, we suggest you use an on-line parenting plan software program. Without the plan on-line, you make changes as your lives and activities change, print the whole plan, exchange it with your ex, cross your fingers his/her plan doesn’t get “lost” and be forced to discuss changes with your ex without a visual calendar.

When using an on-line parenting plan, changes can be made easily and quickly. You both have access to the plan, you can track the time your kids spend with each parent, and you can record expenses incurred. Numerous other neat  features are provided.

Transfer the data from the worksheets to the on-line parenting plan, complete the plan and file a copy of that plan with your other initial filing divorce papers.

See our discussion on Do-It-Yourself Divorce

Legal Separation - Marital Separation

Louisiana recognizes legal separation to a marriage. Much like other states, Louisiana requires a petition process that is similar to divorce. A couple must complete a separation agreement and file it with the court. If that separation meets with state law, a separation will be declared, making the parties effectively 'single' in all ways except marital status.

You can retain certain benefits of marriage with a separation

The parties must petition the court to convert the separation to a dissolution (divorce). A legal separation (also known as a marital separation) is often sought by one of the parties that wants to terminate the relationship but wishes that the marital status not be interrupted for religious, health care or insurance coverage reasons. Spouses may obtain a divorce if they have been living separate and apart for six months without a reconciliation after having obtained a judgment of separation from bed and board.

Obtaining a divorce in Louisiana in less than one year requires proof of acts sufficient to constitute the required "fault. '29 Even if a couple is willing to wait more than a year to obtain a divorce based upon the "no-fault" grounds contained in Louisiana Revised Statutes 9:301,0 the spouses may have to prove the lack of a reconciliation during the physical separation.3 Some spouses engage in deceptive behavior such as simulating a heartfelt reconciliation in order to prolong eligibility for alimony pendente lite or to eliminate the admissabilify of evidence of prior fault.12 Spouses may also engage in such behavior simply to frustrate the wishes of the party who wants to expedite the divorce.33 Because Louisiana's no-fault divorce provision requires that the parties live separate and apart for one year without reconciliation before filing,34 the state arguably encourages such behavior by requiring proof of fault as an essential element of the cause of action for one to obtain a divorce in less than one year.

If a legal separation (sometimes called a marriage separation) has been petitioned for, the court may make further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deems appropriate.

The clock keeps ticking

If the petitioner (the person who originally filed for divorce) fails to file for divorce within two years of the original filing for divorce, the clock resets. Filing new papers would then be required, and a 365 day waiting period would apply. [RS 13:3491]

More on separation

Divorce Settlement - Dividing Property

Louisiana is known as a Community Property state. Community property is defined as all property that was acquired during the marriage. Parties to the divorce will be given opportunity to arrive at a divorce settlement of marital assets and liabilities, and if they are unable to, the court will make the division. Property will be divided equally (50-50). Non-marital assets such as gifts, inheritances, and property owned prior to the marriage will remain with each spouse and then all other property will be split equally.

You may have to bargain (or horse trade) with your ex to keep items you really want

The court may consider the following:

When the interest of a spouse in a community property regime is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse, or by the disorder of the affairs of the other spouse, he may obtain a judgment decreeing separation of property.

When a spouse is an absent person, the other spouse is entitled to a judgment decreeing separation of property.

When a petition for divorce has been filed, either spouse may obtain a judgment decreeing separation of property, by a rule to show cause and upon proof that the spouses have lived separate and apart without reconciliation for at least thirty days from the date of, or prior to, the filing of the petition for divorce and have not reconciled.

When the spouses have lived separate and apart continuously for a period of six months, a judgment decreeing separation of property shall be granted on the petition of either spouse.

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

Concerned about custody and visitation battles in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

More on dividing marital assets

[Louisiana Code of Civil Procedure - Article: 121]

Alimony - Spousal Support - Maintenance

The consideration of alimony (also known as spousal support or maintenance) by the court will include who is entitled, the amount to be paid and the duration of alimony payments. Factors that the court may consider are:

• The income and means of the parties, including the liquidity of such 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 claimant to acquire appropriate education, training, or employment,
• The duration of the marriage and
• The sum awarded as alimony can not exceed one-third of the payer's net income. In Louisiana, there are two types of Alimony/Spousal Support.

Temporary Support: Awarded to a spouse who does not have sufficient income for his or her maintenance pending the divorce. The most important factor considered by the court is the standard of living which existed during the marriage.

Post-Divorce Spousal Support (a.k.a. 'Permanent Alimony'): Post-Divorce Spousal Support is designed to provide the needy ex-spouse with the basic necessities of life. Post-Divorce Spousal Support can be awarded to an ex-spouse who is found to be free from fault in the breakdown of the marriage and does not have sufficient means for his or her own support.

Don't commit adultery and expect alimony (spousal support)

The fault of the paying party is not relevant to the issue of spousal support. However, the receiving spouse must show that he or she is not at fault. There are no hard statutory rules defining 'fault' for purposes of spousal support-- the determination is left to the court, based on the authority of previous cases and some guidance from the civil code. Being at fault does not necessarily bar one from receiving spousal support. Courts will determine comparative marital misconduct. A judge will determine the party more at fault, or the one who has committed the more egregious fault, and make that person bear an adverse ruling.

 

 

Parent And Child Visitation

Parents have the opportunity to create a Louisiana Visitation or Parenting Plan between them, for their children's benefit. If you and your spouse can agree on a parenting schedule, leave nothing to interpretation. Be as specific as you can including the right language in your agreement. How is the decreed custody defined? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children?

You really don't want the court's visitation schedule if you can avoid it

In the event the parents cannot reach full agreement on a visitation schedule, the court will issue a visitation order that is fairly uniform across the states. That schedule can include: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess-winter, spring and summer, New Year's Eve, Easter, Rosh  Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

Carrot and the Stick - If you are concerned that your ex-partner may not live up to his or her end of the child visitation bargain, and you want to keep close track of all parenting times, activities and missed visits, the Parenting Time™ on-line parenting plan platform is the ideal tool for you. Parenting Time™ offers, among other things, an on-line calendar for tracking and journaling parenting time. You can send to your ex the calendars for upcoming months to prompt him or her to take good parenting as serious as you do, and at the same time demonstrate that you are keeping close track of all parenting time interactions. If your ex knows there is documentation, the game playing and threats of custody battles tend to go away. You now have control.

 

Grounds For Divorce

Louisiana divorce laws allow that a divorce will be granted by the court on No-Fault Grounds if:

• the spouses have lived separate and apart continuously for at least one hundred eighty days prior to the filing,
• The other spouse has committed adultery,
• The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor,
• The other spouse has abandoned the marital home for a period of one year and constantly refuses to return,
• The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses,
• The spouses have been living separate and apart continuously without reconciliation for a period of two years,
• 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 (legal separation) was signed.

§307. Divorce or separation from bed and board in a covenant marriage; exclusive grounds

A. 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.
6. (a) 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. (b) If there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of one year and six months from the date the judgment of separation from bed and board was signed; however, if abuse of a child of the marriage or a child of one of the spouses is the basis for which the judgment of separation from bed and board was obtained, then a judgment of divorce may be obtained if 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.

B. 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.
6. On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.

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

D. The counseling shall not apply when the other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.

[Louisiana Code of Civil Procedure - Article: 103, 307]

Residency - You Must Be A Resident Of This State

Whomever files the petition for divorce must have established residency by living in the state for at least 12 months prior to that filing. The divorce will be filed in the parish in which either spouse resides.

 

 

 

[Louisiana Code of Civil Procedure - Article: 42]

Mediation

In petitions involving children, the court can order the parties to mediate their differences. A mediator can be agreed upon by the parties, or the court will appoint one. The court can continue the proceedings to allow time for mediation to be achieved. If an agreement is reached by the parties, the mediator will prepare a written, signed, and dated agreement. The agreement will then be submitted to the court for its approval.

The court may order that you attend and complete a court-approved seminar designed to educate and inform you both about the needs of children of divorced parents. [9:306]

[Louisiana Code of Civil Procedure - Article: 131]

Grandparents Visitation Rights

The visitation rights of grandparents are somewhat complex in Louisiana.

Grandparents may be awarded visitation if the parent who is the child of the grandparent is deceased, imprisoned or has been interdicted, which Louisiana defines as someone who has been declared legally incompetent. Where death or imprisonment has occurred, grandparents may request visitation if the parents of the child have been living in concubinage, meaning unmarried. If the parents of the child are separated or have lived apart for 6 months or more, grandparents may also request visitation.

 

 

In cases where an adoption has occurred, grandparents lose visitation rights unless the grandparents are parents to a deceased parent, or a parent that has lost his or her right to object to adoption.

Waiting Period

Except in the case of a covenant marriage, a divorce will be granted 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, or from a written waiver that the spouses have lived separate and apart continuously for at least one hundred eighty days prior to the filing. In cases where children resulted from the marriage, a one year living separately is required before a divorce may be granted. If a divorce petition claims fault, the couple must live separate and apart for at least two years.

The laws on remarriage in Louisiana are somewhat unique. If the female remarried prior to 7/29/70 and within 10 months of her divorce decree, that remarriage is voidable if contracted in the State of Louisiana. Otherwise, there are no time restrictions on either party remarrying after the divorce.