Louisiana Divorce Laws - Dissolution of Marriage

Louisiana 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.

Louisiana divorce laws stipulate that parents may fashion a 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 sure likely to be unhappy with the terms.

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 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 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 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 a proceeding in which joint custody is decreed, Family Law permits 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 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.

Creating successful Parenting Plans has never been easier, with software programs doing the bulk of the work.      

Louisiana 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.

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.

Are you a parent just starting out with divorce, and need a blueprint, or guidance, on how to put it together without it costing an arm and a leg? Start with these documents:

Parental Visitation
Child Visitation
Co-Parenting

Parents in Louisiana have the opportunity to create a 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?

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, 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 Custody XChange™ on-line parenting plan platform is the ideal tool for you. Custody XChange™ 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 he or she knows there is documentation, the game playing and threats of custody battles tend to go away. You now have control.

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Spousal Support
Alimony
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. 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.

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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

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. 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 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.

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.

How to file for annulment:

How to file for an annulment is similar to a filing for dissolution. You need to identify what grounds there are for an annulment. Fraud (the most common ground), inability to consummate the marriage, mental disability or addiction to drugs are accepted grounds. Once grounds have been determined, you must draft a document explaining the details that prove your grounds, including all personal info such as your spouse's name, how long you've been married and when you first realized the grounds for annulment.

Get a cover letter for a petition to annul the marriage from the county clerk in the county where you married. Complete the personal details required on the cover letter, and file it with your document discussed above. As of this writing (Jan. 2011), the filing fee was $140.00. You will be directed to have your spouse served, and the clerk will advise you of the next steps.   

Mediation
Marriage Counseling

Marriage Separation
Legal Separation in Louisiana
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). 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 (sometimes called 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.  

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.   

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.    

Divorce Settlement
Distribution of Assets

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.  

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.

How to file for no fault divorce in Louisiana

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 (grounds for divorce) with one of the following:

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

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. 2. you must use a process server and get a signature; or
3. 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.

Do not cut corners on the Parenting Plan. Avoid basic, simple parenting plans. 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.

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.