A look at the different types of divorces available under Louisiana Law, and how they impact couples.
Who can file for divorce in Louisiana?
A person can file for divorce in Louisiana if he/she or their spouse has been living in the state for at least six months.
In Louisiana, except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:
(1) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed.
(2) The other spouse has committed adultery.
(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
(4) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.
(5) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse. Louisiana Civil Code Article 103
Louisiana Civil Code Article 102 or Article 103(1) are the no-fault divorce statutes.
To be eligible to file under Article 102, you and your spouse must live separate and apart for a minimum of 180 days before awarded a judgment of divorce.
Article103(1) requires that you and your spouse must have already lived separate and apart at different residences for at least 180 days before you can file for divorce.
There is a caveat to these statutes; if there are minor children involved, then the required separation time increases to 365 days. Also, separate and apart means no reconciliation during the period.
Which divorce will be best for you, 103(1) or 102?
The divorce you choose will depend on your circumstances; if you have been separated from your spouse for over 180 days and have no minor children at home, then a 103(1)divorce is the fastest means to finalize your divorce.
However, the decision is much more complicated when you add other factors; for example, if you and your spouse are separated but the separation period is only 100 days. In this scenario, it may be advisable to not file for divorce now but rather to wait 80 more days and file. By going this route, your divorce could be granted quicker, and you may even avoid a hearing and possibly save some expense.
But you may not want to wait to file your divorce papers. In that case, you would file for an Article 102 divorce and time would begin to run anew, meaning after the passage of 180 days from the date of filing the divorce could be granted. Some individuals choose this method because the filing of the divorce petition gives them peace of mind. After considering your options you have to choose what is most important to you.
What documents will you need to file?
Many of the documents are the same regardless if decide to file for a 102 or 103(1)divorce:
For an Article 102 divorce, you will also file a Rule to Show Cause.
However, for Article 103(1) you will file four additional documents:
Motion for Confirmation of Divorce Judgment of Default Without a Hearing
For a 103 or 102 divorce, you file a Verified Petition for Divorce with a signed Acceptance and Waiver of Service by your spouse. Article 102 divorce, requires you to file a Rule to Show Cause/Rule for Final Divorce along with Verified Affidavits and Defendant's Acceptance and Waiver of Service of the Rule to Show Cause from the date your spouse signed the Waiver of Service. After the documents have been filed, a hearing will be scheduled to finalize the divorce. You will need to have two witnesses at the hearing to confirm under oath to knowing that you and your spouse have lived separate and apart without reconciliation for 180 days (365 days if thecouple has minor children together).
An Article 103(1) divorce requires an Affidavit with the Petition swearing that the information contained in the Petition for Divorce is truthful and accurate.In 15 days (30 days if your spouse doesn't live in Louisiana), request that the Court Clerk set your case for a Preliminary Default. In a couple of days, the judge will finalize the divorce or may decide to first require a Confirmation of Default hearing before finalizing it.
A spouse who seeks a divorce based upon fault does not have to wait the legal delays associated with no-fault divorces. Fault divorces are adultery and conviction of a felony. There is no waiting period required for a fault divorce.If your fault divorce is based on adultery you have the burden to prove the allegation.
(1) The other spouse has committed adultery.
To establish adultery during the marriage the burden of proof is on the person alleging adultery. What is adultery? Adultery is sexual intercourse outside the marriage, some courts have included oral sex as sexual intercourse.. The burden of proof is by a preponderance of the evidence and the accused is presumed innocent. It may be necessary to provide witnesses and evidence from a private investigator to prove your case.
(2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
To establish divorce based upon a felony you only need to provide proof to the court of your spouses conviction and sentence. The delays for appealing the conviction or the fact that he has or has not served his sentence will not affect the divorce.
(3) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.
Divorce based upon abuse provides protection to spouses and children from dangerous situations. Prior to the passing of this statute abused spouses were required to remain married during the normal no-fault delays. This statute will allow victims to close an ugly chapter of their life.
(4) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.
Divorce based upon a protective order or an injunction is another tool to allow victims of abuse to move forward with their lives. The divorce can be granted with documentary evidence, granting the victim the benefit of avoiding additional testimony in hearings surrounding the abusive events.
Click this link to read the statute.