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Divorce
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 You
are here because you're looking for answers. Many
can be found here, including the answer that you
will make it through this mess. While it may seem
hopeless, it isn't. Time is the great anesthesia
from past pain. Don't
despair, it WILL get better. Take a deep breath.
If nothing else, we'll give you some answers and
ease your anxiety. If you're having a tough time
coping, perhaps you should view
this page first.
Child Support
Are you curious
about how Louisiana computes child support? The
state of Louisiana 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 divorce 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. Access details of Louisiana family
law via the Louisiana Divorce Laws link
above.
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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. The days
of one parent quitting their job and getting a
lower paying
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one
just to have payments lowered is pretty much over.
Louisiana divorce 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.
Child support is determined
by the parties combining their adjusted gross
incomes. This effectively takes more from the
obligor. 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.
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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 custody of their children about 20%
of the time. In determining the child's best interest,
the court will consider all relevant factors,
which may include:
The love, affection, and
other emotional ties between each parent and the
child; 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 ability 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 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 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; The distance between the respective
residences of the parties; The responsibility
for the care and rearing of the child previously
exercised by each party. If the parents agree
who is to have 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 agreement is not inthe
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 a proceeding
in which joint custody is decreed, Family Law
permits the court to render a joint custody implementation
order except for good cause
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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 custodial
parent and subject to the court's review.
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.
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.
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Visitation/Co-Parenting
Parents
in Louisiana have the opportunity to create a
visitation (parenting) plan for their children
and the non-custodial parent. 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
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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? In the event the parents cannot reach
full agreement on a visitation schedule, the court
will impose a schedule 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,
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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.
Be aware that you have to guide your side of
the divorce. Don't rely that your attorney will
think of everything. You set the course; your
lawyer navigates. If you anticipate any problems
with custody or visitation, we suggest you own Child
Custody Strategies.
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Alimony/
Maintenance/ Spousal Support
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: 1.) The needs of the parties, 2.) The income
and means of the parties, including the liquidity
of such means, 3.) The financial obligations of
the parties, 4.) The earning capacity of the parties,
5.) The effect of custody of children upon a party's
earning capacity, 6.) The time necessary for the
claimant to acquire appropriate education, training,
or employment, 7.) The health and age of the parties,
8.) The duration of the marriage and 9.) The sum awarded
as alimony can not exceed one-third of the payer's
net
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income.
In Louisiana, there are two types of Alimony/Spousal
Support.
1. 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.
2. 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. The fault of the paying party
is not relevant to the issue
of spousal support. However, the receiving spouse
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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.
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Grounds
For Divorce
Louisiana divorce statutes
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
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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
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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. |
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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 in your favor. A marriage
annulment (otherwise known as a marital annulment
is a declaration by the court that a marriage
never took place legally because it was illegal
or improper to begin with. According to Louisiana
divorce and family law, one of the following grounds
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.
If a marriage separation
(sometimes referred to as a marital separation
or legal separation has been decreed, the court
may make such 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 deemed appropriate.
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Marriage
Counseling/
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. |
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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. The parties must
petition the court to convert the separation to
a dissolution (divorce).
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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
or health care insurance coverage reasons.
If a legal separation
(also referred to as a marriage separation) has
been decreed, the court may make such 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 deemed
appropriate. |
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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. |
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Grandparents Rights
If one of
the parties to a marriage with children dies or
is imprisoned, the parents of that party may have
reasonable visitation rights to the child or children
of the marriage during their minority. Motions
before the court need to be made to effect this.
Best interest of the child or children prevails.
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State
Fact Sheets for Grandparents and Other Relatives
Raising Children |
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Divorce
Settlement
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. 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.
Did you come into this marriage
owning a house? Concerned about the equity in
that house that you brought into the marriage?
Worried a divorce settlement will take away what
was originally yours? Here's how it works generally.
What you brought into the marriage is usually
all yours. However, any appreciation of the house
or the property value is normally treated as a "marital
asset", meaning that you will likely have
to give up a half of that appreciation to your
spouse in the divorce. |
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Residency
Requirements
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. |
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