Child Support
Residency Requirements and Grounds for Divorce
Either you or your spouse must be a resident of Louisiana for at least one year to file for a divorce. You file your case in the parish where you or your spouse live, or where you last lived together.
Louisiana permits fault divorces or no-fault divorces based on living separate and apart for six months. You don't need to show marital breakdown to get a divorce. All that's needed is to show one spouse wants a divorce.
A divorce is also granted if any of the following are shown:
- Spouses lived separate for six months or more
- Other spouse committed adultery
- Other spouse committed a felony and has been sentenced to death or imprisonment at hard labor
A case starts by filing a "Petition for Divorce" in district court. The court grants the divorce 180 days from the time the petition is served on the other spouse. The time frame is also 180 days if the spouse waived service and the couple has lived apart for 180 days.
Dividing the Property
Louisiana is a community property state, which means that any property acquired during the marriage is treated as being owned by both you and your spouse. A spouse's separate property, which is property acquired before the marriage and property acquired by gift or inheritance, is awarded to that spouse.
The community property is divided equally between the spouses. The spouse filing for divorce is also awarded personal property needed for his or her safety and well-being.
The court may award either spouse the use of the family home until the final division of the community property. This temporary award is based on the value of each spouse's personal property, their economic circumstances, and the children's needs.
Both spouses are responsible for community debts taken on during their marriage. You and your spouse may agree on how to divide your debts or the court with divide them. However, creditors may not be bound by either and may try to seek payment from either spouse.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a Louisiana divorce lawyer and it can save you a lot of time and money.
Alimony
A court can order alimony, also called spousal support, to either spouse. A support obligation depends on the spouses' relative needs and abilities to pay. Alimony may be temporary, given until the case is complete, or permanent, meaning its paid after the divorce.
Permanent alimony may be allowed if the recipient is relatively free from fault in the breakup, and can't support himself or herself. If you're at fault, you can't receive permanent spousal support.
The amount of permanent alimony can't exceed one-third of the payor spouse's income. This limit doesn't apply when support is paid in a lump sum amount. In deciding support issues the court looks at these factors:
- The income, means and assets of the spouses
- Liquidity of assets
- Comparative financial obligations of spouses
- Earning capacity of spouses
- Effect of custody of children on spouse's earning capacity
- Time needed to gain education and training and a proper job
- Health and age of spouses and support and care obligations for dependent children
- Earning capacity of the spouse who seeks alimony in light of all other circumstances
- Tax consequences
- Other circumstances the court deems relevant
Support can be paid monthly or by lump sum. Monthly spousal support is paid until a court terminates it or there is a remarriage or cohabitation. Modification of support must be based on a material change of circumstances.
The advantage of a lump sum award is that the spouse who receives it has an absolute right to receive the payment even if there is a remarriage or death. Also, the order cannot be modified even if there is a change in circumstances, such as the loss of a job.
Child Custody and Visitation
Louisiana courts make child custody decisions based upon what is in the best interests of the child. If parents can't agree on custody issues, the court can grant sole or joint custody. Generally, courts award joint custody to both parents with one parent designated as the primary custodial parent. The other parent gets reasonable visitation, such as every other weekend, holidays and several weeks in the summer.
If the parties don't agree on an arrangement, the court will usually have the parents and children evaluated by a custody specialist. The specialist makes a recommendation to the court that the spouses either agree on or they may go to trial to determine custody.
There is a preference that custody be awarded as follows:
- To both parents
- To either parent
- To the person or persons with whom the child has been living
- To any other person that the court feels is suitable and able to provide an adequate and stable environment for the child
Unless the parents agree otherwise, joint custody is presumed to be in the best interests of the child and will be awarded based on the following factors:
- Physical, emotional, mental, religious and social needs of the child
- Capability and desire of each parent to meet the child's needs
- Preference of the child, if the child is of sufficient age and capacity
- The love and affection existing between the child and each parent
- Length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
- Desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent
- Wishes of parents
- Child's adjustment to his or her home, school and community
- Mental and physical health of all involved
- Permanence as a family unit of the existing or proposed custodial home
- Distance between the potential residences
- Moral fitness of parents
- Any other relevant factor
The conduct of a proposed guardian is considered only if it bears on his or her relationship with the child.
Parents must submit a plan for joint custody. The plan must include:
- Child's residence
- Rights of access and communication between the parents and child
- Child support amounts
A parent that is not granted custody is entitled to visitation rights unless that parent has subjected the child to physical or sexual abuse.
Child Support
Both parents have an obligation to support their children. Fault, or lack of fault, by the parents in the divorce is not a factor that is considered by the court when determining the child support obligation of each parent. The court will look at a number of factors when determining support payments including the needs of the child and the actual resources of each parent.
Additionally, Louisiana Child Support Guidelines are presumed to be correct, unless one of the following factors makes them either unjust or not in the best interests of the child:
- Extraordinary medical expenses of the child or parent responsible for support payments
- Permanent or temporary total disability of the parent responsible for support
- Need for immediate or temporary support
- Extraordinary community debt of the parents
- Combined parental income that is less than that in the guideline charts
- Obligation to support other dependants
- Other factors that would make application of the guidelines not in the best interest of the child
It is important to consult a divorce attorney if you have any questions regarding the issues involved in obtaining a divorce.
Questions for Your Attorney