Divorce in Louisiana

Residency Requirements and Grounds for Divorce

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. A divorce may be brought where either party is domiciled or in the parish of the last matrimonial domicile.

Louisiana permits fault divorces or no-fault divorces based on living separate and apart for six months. That a spouse desires a divorce is grounds for divorce in Louisiana. There is no marital breakdown requirement.

The legal divorce process begins when one spouse files a "Petition for Divorce" in the District Court. A divorce is granted after 180 days from the date that the petition was served on the spouse or the spouse waived service if the spouses lived separate for at least 180 days.

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

The no-fault divorce grounds in Louisiana are very simplified. The nonfiling spouse does not even need to answer the Petition for Divorce. To obtain a final "Judgment of Divorce," a motion is filed with the court.

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. Personal property that is necessary for the safety and well-being of the spouse filing for divorce and any children in that spouse's custody will be awarded to the filing spouse.

The court may award either spouse the use of the family home until the final division of the community property. The temporary award of the family home is based on the following factors:

Value of each spouse's personal property
Economic circumstance of each spouse at the time the division of property is to become effective
Needs of the children

Both spouses are liable for community debts incurred during the marriage. A community debt may be incurred with the signature of only one of the spouses. 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 attempt to seek payment from either spouse.

It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a divorce Louisiana divorce lawyer can save you a lot of time and money.

Alimony

A court can order alimony, also called spousal support, for either party in Louisiana. The obligation to pay spousal support depends on the relative resources and needs of each spouse. Temporary alimony may be awarded if one spouse does not have a sufficient income for maintenance during a suit for separation or divorce. Support paid after the divorce is final is called permanent alimony.

Permanent spousal support is an obligation to pay support after the marriage is terminated and until a further court ruling raises, lowers or terminates the obligation. Permanent alimony may be allowed if the spouse seeking the alimony is relatively free from fault in the breakup of the marriage and does not have sufficient means for support. If one spouse is found to be at fault in the breakup of the marriage, that spouse cannot receive permanent spousal support.

Where a spouse is free from fault and seeks permanent alimony, the alimony cannot exceed one-third of the other spouse's income unless the alimony is paid in a lump-sum payment. The factors that the court considers are:

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 necessary for recipient to acquire appropriate education, training or employment
Health and age of spouses and obligations to support and care for dependent children
Earning capacity of the spouse who seeks alimony in light of all other circumstances
Tax consequences
Other circumstances that court deems relevant

Although spousal support is usually paid on a monthly basis it may also be paid in a lump sum if the spouses agree to that arrangement. Monthly spousal support is paid until a court terminates it or there is a remarriage. Permanent spousal support automatically terminates if the spouse receiving the alimony remarries or lives together with another, as man and wife, without actually being married. Once support has been set it may only be modified if the person that is seeking a change can show that there has been a material change in 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

In Louisiana, the court will make child custody decisions based upon what is in the best interests of the child. If the parents cannot agree about who should have custody, the court will grant either sole custody to one parent or joint custody to both parents. Generally, Louisiana 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 do not 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 has Child Support Guidelines that 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.

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