Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Louisiana have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
To file for a divorce in Louisiana, either spouse must be a resident in a parish of the state for six months. An action for divorce can be filed in the parish where either party is domiciled.
LEGAL GROUNDS FOR DIVORCE
Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
The spouses have been living separately and apart continuously for the requisite period, or more on the petition’s date. The requisite time is as follows:
One hundred eighty days if there are no minor children involved, or if there is evidence that the other spouse has physically or sexually abused the spouse seeking a divorce or a child of one of the spouses, or if a protective order or an injunction has been issued, by law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse and is in effect at the time the divorce petition is filed—365 days when there are minor children of the marriage.
The other spouse has committed adultery, or the other spouse has committed a felony and sentenced to death or imprisonment at hard labor.
In the case of a covenant marriage, the following grounds apply:
- 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 matrimonial domicile for 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 separately and apart continuously without reconciliation for two years.
- The spouses have been living separately and apart continuously without reconciliation for one year since the judgment of separation from bed and board was signed. If minor children are involved, the period shall be extended for six months unless there is evidence of the child.
MEDIATION-COUNSELING REQUIREMENTS
A court exercising jurisdiction over family matters may require the parties in a custody or visitation proceeding to attend and complete a court-approved seminar designed to educate and inform the parties of the needs of the children.
PROPERTY DISTRIBUTION
Louisiana is a community property state, meaning that property and debts acquired during the marriage shall be split equally unless the parties reach an agreement independent of a court ruling. The community property comprises property acquired during the marriage through the effort, skill, or industry of either spouse; property acquired with community things or with the community and separate things unless classified as individual property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.
SEPARATE PROPERTY
The separate property of a spouse is not subject to division. It comprises property acquired by a spouse before the marriage; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the individual stuff used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in action for breach of contract against the other spouse or the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the direction of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime. [Based on Louisiana Civil Code – Articles 2338 and 2341]
MAINTENANCE-SPOUSAL SUPPORT
When a spouse has not been at fault and needs support, based on that party’s needs and the other party’s ability to pay, that spouse may be awarded final periodic support. The court shall consider all relevant factors in determining the amount and duration of support.
Those factors may include:
- 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 health and age of the parties.
- The duration of the marriage.
- The tax consequences to either or both parties.
The sum awarded shall not exceed one-third of the obligor’s net income.
TERMINATION OF SPOUSAL SUPPORT
The obligation of spousal support terminates upon the spouse’s remarriage receiving support, the death of either party or a judicial determination that the supported spouse has cohabited with another person of either sex in the manner of married persons.
SPOUSE’S LEGAL NAME
If widowed, divorced, or remarried, a woman may use her maiden name, the surname of her deceased or former spouse, the surname of her present spouse, or any combination thereof. [Based on Louisiana Revised Statutes – R.S. 9:292]
CHILD CUSTODY
If the parents agree on who is to have custody, the court shall award custody per their agreement unless the child’s best interest requires a different award. In the absence of understanding, or if the deal is not in the best interest of the child, the court shall 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 shall award custody to that parent.
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
- The love, affection, and other emotional ties between each party and the child.
- 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.
- The capacity and disposition 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 insofar as it affects the welfare of the child.
- The mental and physical health of each party.
- The home, school, and community history of the child.
- The child’s reasonable preference, if the court deems the child to be of sufficient age to express a preference.
CHILD SUPPORT
Louisiana uses the “Incomes Shares” model to determine child support, meaning that the level of support is calculated using both parents’ combined adjusted gross incomes. Each party shall then select by percentage their proportionate share of the combined amount. The amount obtained for each party is their percentage share of the combined adjusted gross income. The total child support obligation shall be determined by adding together the basic child support obligation amount, the net child care costs, the cost of health insurance premiums, extraordinary medical expenses, and other extraordinary expenses.
In all new child support orders after January 1, 2007, that the Department of Social Services is not enforcing, the court shall include as part of the order an immediate income assignment unless there is a written agreement between the parties or the court finds good cause not to require a quick income assignment.
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
