Domestic Brochure

Because of the prevalence of marital breakdown in today's society, almost everyone has been or could be affected by spouses physically separating and seeking a divorce. Terminating a marriage may involve custody, spousal/child support and property rights. The issues may be simple and easily resolved by the parties, with or without professional assistance, or may be more complicated, necessitating legal assistance. This brochure provides a very basic overview of Louisiana law concerning termination of marriages and the various areas where serious legal issues may arise. Every citizen is guaranteed the right to self-representation but, because the legal determinations will have long-term effects on the spouses and family, legal representation is recommended.

Termination of Marriages

Marriages are terminated in Louisiana in four ways:

a. Death of either spouse;

b. Divorce;

c. Declaration of nullity of the marriage; and

d. Presumption of death (Louisiana Civil Code Article 101).

It should be noted that Louisiana no longer has an action for legal separation, effective Jan. 1,1991.

Divorce

There are four grounds for divorce in Louisiana:

a. Living separate and apart after filing of petition. Once a petition for divorce is filed, if the parties remain separate and apart without reconciliation, either spouse may ask the court for a divorce 180 days after the petition for divorce was served or a written waiver of service was filed in the record.The 180-day waiting period requirement cannot be waived. The action can be defeated if the parties reconcile resume living together with a mutual intent to resume the marriage at any time during the waiting period. Certain procedural formalities are required.

b. Living separate and apart before filing of petition. If the spouses have lived separate and apart, continuously and without reconciliation, for six months or more, either spouse may file a petition for divorce.

c. The other spouse commits adultery. Adultery on the part of the other spouse is grounds for an immediate divorce; there is no required waiting period. The burden of proof is on the party alleging the adultery and is very strict. Corroborative testimony is normally required and it must be proven that the other spouse engaged in sexual relations with another person.

d. Conviction of a felony. If the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor, a petition for divorce can be filed. The facts of conviction and sentencing are the only proof requirements; appeals and actual serving of the sentence are immaterial.

Declaration of Nullity

A marriage can be judicially declared null and void when the consent of one of the spouses was not freely given at the time of the marriage. The right to ask for this declaration of nullity is lost if the complaining spouse subsequently "confirmed" the marriage.A marriage is absolutely null, and therefore considered as never having occurred, if:

a. the marriage was contracted without a ceremony;

b. stand-ins were used (procuration);

c. it is a bigamous marriage;

d. it is between people of the same sex; or

e. precluded by familial relationship.

Because these types of marriages are absolutely null, there is no need for a judicial declaration.

Presumption of Death

If a spouse disappears under circumstances that make death seem certain, although the body has not been found, a proceeding can be filed to have the death recognized by law, thereby terminating the marriage. If the spouse is on active duty in one of the United States' armed forces and has been reported missing under circumstances causing the armed services to accept the presumption of death, a Louisiana court may make a declaration of death.

Custody

In the divorce proceeding or thereafter, either spouse may request a determination of custody, visitation, child support, spousal support, and property rights. Custody is often the most crucial and emotionally charged issue during or after the divorce. Professional mental health counseling may be beneficial to both the children and parents in learning how to cope with this life crisis. While "joint custody" is presumed to be in the best interest of the children, this legal presumption can be rebutted by either parent proving that sole custody is in the children's best interest (Louisiana Civil Code Articles 131 and 134).The court shall consider, among other factors, the following in determining custody:

a. relationship between parents and child;

b. age and gender of the child;

c. parent's ability to give guidance;

d. parent's ability to encourage a continuing relationship between the child and other parent; and

e. parent's moral fitness and the mental and physical health of the parties.

The single most important test should always be what is in the children's best interest. Subsequent changes in custody may be obtained but, minimally, there must be a showing of a material change in circumstances. A child's wishes may be considered if the child is of sufficient age, intelligence and maturity to make such a statement of preference.

Visitation

As with custody, visitation (or in a joint custody situation, physical custody time) between a parent and the children is also determined in accordance with the children's best interest. Under extraordinary circumstances, relatives of the children may be granted visitation rights if that would be in the children's best interests.

Child Support

Normally the parent not having custody (or primary physical custody in joint custody situations) will be required to contribute to the support of the minor children. This could be an obligation of the mother or father, or both if a third person has custody of the children. Under extraordinary circumstances, a grandparent could be required to contribute. The amount of child support is determined by reference to the Child Support Guidelines, ordering mandatory support at stated levels. A trial judge can deviate from the guidelines, but must give specific oral or written reasons why the deviation is in the children's best interest.

Spousal Support

There are two types of spousal support in Louisiana alimony pendete lite (temporary support until the divorce) and after-divorce alimony. Alimony pendente lite may be awarded to a spouse who does not have sufficient income for his/her maintenance pending the divorce and is designed to maintain the status quo in both spouses' living conditions to the extent that can be accomplished. After-divorce alimony may be awarded to an ex-spouse who:

a. has been found to be free from fault in the breakdown of the marriage; and

b. does not have sufficient means for his/her support.

This type of spousal support is designed to provide the needy ex-spouse with the basic necessities of life.

Property Rights

Unless the parties before or during the marriage entered into a matrimonial agreement excluding or modifying the legal regime of community property, generally speaking, everything acquired by the spouses while residing in Louisiana is owned equally by them. Property owned before marriage, individual gifts during marriage and property inherited are considered separate property and generally not subject to division when the community regime terminates (Louisiana Civil Code Article 2341).Community property is that which is acquired during the marriage through the effort, skill or industry of either spouse, such as wages and employee benefit plans, property donated to the spouses jointly and other property not classified as separate. If the parties cannot agree on what assets and liabilities are to be partitioned to each party, or what values are to be assigned, the court will determine values and then divide all of the assets and liabilities so each spouse receives one-half of the net value of the joint estate.

Other Information

Procedures - Most courts have special procedural rules concerning divorce and ancillary matters. A copy of these special rules should be obtained from the applicable clerk of court. These rules may only supplement, rather than replace, other requirements set forth in the state's statutes.

Costs - All courts have a set schedule of fees and costs for filing, service of pleadings and other charges. If a party to a lawsuit cannot afford filing fees, etc., they may qualify to file in forma pauperis at either minimal or no cost. Special forms are normally required to obtain this status.

Community Property:

What is mine? What is yours? What is ours?

Separate Property

A spouse's separate property, by definition, belongs exclusively to the spouse. All property acquired prior to marriage is, of course, separate. After marriage, a spouse's separate property also includes:

a. Property acquired after marriage if there is a pre-nuptial separate property agreement.

b. Property acquired during marriage after a post-nuptial separate property agreement is judicially approved.

c. Property acquired with the spouse's separate property, or with the spouse's separate and community property when the value of the community property is inconsequential in comparison to the value of the separate property.

d. Property donated to or inherited by one spouse.

e. Damages from personal injury, workman's compensation, etc., awarded to one spouse only.

f. Property acquired by a spouse from a voluntary partition of community by spouses during the marriage.

g. Damages awarded to a spouse in an action against the spouse for breach of contract, fraud or bad faith in management of community property or the spouse's separate property.

h. All property acquired by a spouse after divorce or death of his/her spouse, including property from a community property settlement or community property partition, is separate property.

Community Property

An individual owns an undivided one-half interest in the community property with a spouse; neither spouse can sell, mortgage or lease his/her undivided interest in the community property until it is partitioned. Community property comprises the following:

a. Property acquired during the marriage (unless spouses are separate in property) through the effort, skill or industry of either spouse.

b. Property acquired with community property or with community and separate property when the value of the separate property is inconsequential to the value of the community property.

c. Property donated to the spouses jointly.

d. Fruits and revenues of community property, and fruits and revenues from separate property unless specifically reserved as separate property.

e. Damages or loss or injury to a community property asset.

f. All property acquired during the marriage not classified as separate property.

g. All property in the possession of a spouse during the marriage is presumed to be community property, although either spouse may prove it to be separate property.

Marriage Contracts

Marriage contracts allow for the renunciation or modification of the community property rules as follows:

a. A marriage contract can maintain the spouses completely separate in property, or provide for separate and community property during the marriage. For example, the salary of one spouse can be classified as his/her separate property and the salary of the other spouse classified to be community property, or the spouses can provide for fixed contributions to the expenses of the marriage or apportion community property by shares.

b. A marriage contract executed prior to the marriage does not require judicial approval.

c. A marriage contract executed after the marriage (subject to exception below) requires judicial approval.

d. During the first year after moving into and acquiring a domicile in Louisiana, spouses may enter into a marriage contract without judicial approval.

e. Limitations on marriage contracts include fraud of creditors, renunciation/alienation of marital portion, and right of one spouse to obligate the community.

Community vs. Separate Property

How to change community property into separate property, and vice-versa:

a. Donation by a spouse to the other spouse of his/her interest in a community asset converts the entire ownership of the asset into the separate property of the recipient spouse.

b. Donation by a spouse of his/her separate property to the community transfers that property into community property.

c. Voluntary partition of community property during marriage converts the property partitioned from community to separate property of the recipient spouse.

Equal Management of Community Property

Louisiana's principal of equal management of community property is as follows:

a. Each spouse has the right of equal management of community property (subject to certain exceptions) and a spouse acting alone may manage, control and dispose of community property. 

b. Both spouses must concur in the sale,mortgage or lease of community real estate, furniture or furnishings in the family home, all or substantially all of the assets of the community, and motor vehicles titled in the names of both spouses.

c. The donation of community property to a third person requires the concurrence of both spouses. One spouse may, however, make a usual or customary gift of a value commensurate with economic positions of the spouses at the time of the donation.

d. A spouse has exclusive right to manage, sell, mortgage or lease community movables registered or titled in that spouse's name alone, such as shares of stock and motor vehicles.

e. A spouse may, in writing, renounce the right to participate in the management of community property (in whole or part), and/or the spouse's right to concur in the sale, mortgage or lease of community real estate.