The State of Louisiana is unique in its divorce laws. This was the state that created a new legal category of marriage, called a covenant marriage. It is now one of three US states to recognize covenant marriage as a separate category of marriage. A covenant marriage is one in which the spouses sign a prenuptial agreement to make all attempts to keep the marriage intact. As such, those who are in a covenant marriage must go through more rigorous trials than those who are in a regular (non-covenant) marriage.
This usually entails mediation, counseling and other attempts to keep the marriage together and does not allow for no-fault divorce (meaning, you cannot simply divorce for reasons of not getting along, no matter how much she might drive you crazy).
As such, the grounds for divorce for covenant marriages are slightly different from those for a non-covenant marriage. Usually, divorce for covenant marriages are only granted in extreme cases such as adultery, felonies, or abandonment. Very few people choose a covenant marriage but those who do may do so for religious purposes, where divorce is frowned upon or even forbidden.
Grounds for Divorce Under Louisiana Divorce Laws
The first thing to consider when going through a divorce is the reason (or most likely, reasons) why you are getting divorced. For some, it may be simply that you are no longer able to get along. Maybe you are constantly fighting. Or maybe there is something more sinister afoot. Whatever the case may be, it is important to know the laws regarding the grounds for divorce.
For the majority of you (those who chose a regular or non-covenant marriage), a divorce may be granted for the following reasons:
- The spouses have been living separate and apart continuously for a period of six months or more on the date the petition is filed
- The other spouse has committed adultery
- The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor
If you are attempting to seek a divorce from a covenant marriage, the rules are a bit different. For example, a covenant marriage agreement may not be dissolved, annulled, or otherwise terminated even if both of you agree to divorce. You must have reasonable grounds, which are more serious than simply not getting along.
Those of you who are in a covenant marriage and are experiencing problems with your spouse are required by law to seek help in the form of counseling or other such interventions in an attempt to prevent the destruction of your marriage. In other words, Louisiana divorce laws require that you must make every attempt to save the marriage before you will be able to obtain a divorce. If you and your spouse begin living separate and apart, the counseling or other intervention must continue until you are granted a judgment of divorce.
There is one exception to this rule. In cases where there has been any type of physical or sexual abuse of one of the spouses or children, you will be exempt from counseling and may seek a divorce on these grounds.
In addition to the above-mentioned ground (physical or sexual abuse), there are several other grounds for which you may seek to break up a covenant marriage; these grounds are:
- Spouse has committed adultery
- Spouse has committed a felony and has been sentenced to death or imprisonment at hard labor
- Spouse has abandoned the matrimonial home for a period of one year and constantly refuses to return
- You have been living separate and apart continuously without reconciliation for a period of two years
- You have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed. Or if there is a minor child of the marriage, that the time frame must be one year and six months, unless abuse of a child of the marriage or of one of the spouses is the basis for which the separation from bed and board was obtained, in which case the time period is one year
Residency Requirements/Where to File
Louisiana divorce laws require that the one or both of you must have been a resident of the State for at least one year before filing and must be a resident of the State at the time of filing.
Unlike all the other states, the State of Louisiana does not have counties; instead the country is separated into what are called parishes. When filing for divorce, it is important to know in which parish you must file. If you are the one filing for divorce (you are the Plaintiff), you must file in the parish where your spouse (who is the Defendant) currently resides, or you may file in the parish where the two of you resided together during your marriage.
If you wish to file for annulment in the State of Louisiana, you may do so as long as one or both of you are residents of the state.
Louisiana is a community property state. This means that all shared property will be divided equally between you and your spouse. Community property includes the following:
- Property acquired during the marriage through the effort, skill, or industry of either spouse
- Property acquired with community things or with community and separate things, unless classified as separate property
- 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
- All other property not classified by law as separate property
Any property that does not meet the above specifications is considered separate property and this property will belong exclusively to you, if it was yours in the first place. The following is considered to be separate property:
- Property acquired by a spouse prior to 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 separate things used
- Property acquired by a spouse by inheritance or donation to him/her individually
- Damages awarded to a spouse in an action for breach of contract against the other spouse or for 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 management of his/her separate property
- Things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime
In a proceeding for divorce or thereafter, either spouse may request injunctive relief; use and occupancy of the family home or use of community property or use of personal property. To make it simpler for you, all of this basically means that you get to keep what is yours and she keeps what is hers; anything you may have acquired together will be divided equally between you if you cannot come to an agreement on the division of these items yourselves.
Alimony and Spousal Support
The court understands alimony to include what is necessary for the nourishment, lodging, and support of the person who claims it. Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.
The court may award interim periodic support or final periodic support to the spouse who is in need of support and is free from fault prior to the filing of a proceeding to terminate the marriage.
Here’s what it boils down to. Going back to the reason for your divorce, if you are the one at fault (meaning you committed an act which was the ground for your divorce), you may have to pay your wife (assuming she is not at fault) if she needs and requests support., The courts will determine the amount and duration of the spousal support after considering all relevant factors, including the following:
- The income and means of the parties, including the liquidity of these 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 requesting party to acquire appropriate education, training or employment
- The health and age of the parties
- The length of the marriage
- The tax consequences to either or both parties
Good news for bad guys: she cannot take everything you have, as the amount of spousal support may not exceed 1/3 of your net income.
An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it becomes necessary. Remarriage of the paying spouse does not constitute a change of circumstance.
Spousal support shall terminate upon the remarriage of the recipient spouse, the death of either party, or a judicial determination that the recipient spouse has co-habitated with another person of either sex in the manner of married persons.
In a proceeding for divorce or thereafter, the court may award a spouse a sum for his/her financial contributions made during the marriage to education or training of the other spouse that increased that spouse’s earning power, to the extent that the requesting spouse did not benefit during the marriage from the increased earning power.
The sum awarded may be in addition to a sum for support and to property received in the partition of community property. This type of award does not terminate upon the remarriage or death of either party.
Child Custody and Support
If you have children, the matters of custody, visitation, and child support must be considered. Your best option, if at all possible, is to come to an agreement with your spouse as to who will have custody of the child (or children). If you are unable to come to an agreement or the court deems your agreement to not be in the best interest of the child, the court will decide what is in the best interest of each child.
The court may award joint custody, unless custody to only one parent is shown by clear and convincing evidence to serve the best interest of the child. Then the court shall award custody to that parent.
The court will consider all relevant factors in determining a child’s best interest for custody determination, including the following:
- 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(s)
- 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 reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference
- The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party
- The distance between the respective residences of the parties
- The responsibility for the care and rearing of the child previously exercised by each party
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
A child has a right to time with both parents. Accordingly, when a court-ordered schedule of visitation, custody, or time to be spent with a child has been entered, a parent shall exercise his rights to the child in accordance with the schedule unless good cause is shown. Neither parent shall interfere with the visitation, custody, or time rights of the other parent unless good cause is shown.
When necessary, the court may require that you attend and complete a court-approved seminar designed to educate and inform the parties of the needs of the children.
The participant must take part in the program for a minimum of three hours, but no more than four hours and the cost shall not exceed $25 per person. The seminar shall focus on the development needs of children, with emphasis on fostering the child’s emotional health. The seminar shall be informative and supportive and shall direct people who want more information or help to appropriate resources.
Family Violence and Abuse
When the court finds that a parent has subjected his/her child to physical abuse or sexual abuse or exploitation, or has permitted that type of treatment and abuse, the court shall prohibit visitation between the abusive parent and the abused child until the parent proves that visitation would not cause physical, emotional or psychological damage to the child. If visitation is allowed, the court will order such restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.
There is a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children.
Joint custody means each parent has physical custody of the child for an approximately equal amount of time. The court order shall allocate the time periods that each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. The order shall allocate the legal authority and responsibility of the parents. In a joint custody decree, the court will generally designate a domiciliary parent, who is the parent with whom they shall primarily reside.
Louisiana used the Income Shares Model to determine child support. The court shall determine the basic child support obligation amount from an established schedule by using the combined adjusted gross income of the parties and the number of children involved in the proceeding.
The parties shall combine the amounts of their adjusted gross incomes. Each party shall then determine by percentage his/her proportionate share of the combined amount. The amount obtained for each party is his/her percentage share of the combined adjusted gross income.
Each party shall provide the court with a verified income statement showing gross income and adjusted gross income, with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party.
If a party is voluntarily unemployed or underemployed, his or her gross income shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.
Net childcare costs shall be added to the basic child support obligation. The net childcare costs are determined by applying the Federal Credit for Child and Dependent Care Expenses, provided by the IRS, to the total or actual child care costs.
The court may order one of the parties to enroll or maintain an insurable child in a health benefits plan, policy, or program. In determining which parent, the court shall consider each party’s individual group, or employee’s health insurance program, employment history, and personal income and other resources. The cost of health insurance premiums for the child will be added to the basic child support obligation.
The following other expenses with be added to the basic child support obligation:
- Extraordinary medical expenses
- Tuition expenses, registration, books and supply fees for special or private elementary or secondary school
- Transportation expenses for transporting the child from one party to the other
Special expenses for child rearing intended to enhance the health, athletic, social, or cultural development of a child, such as camp, music or art lessons, travel, and school-sponsored extracurricular activities.
In cases of joint custody, the court shall consider the period of time spent by the child with the non-domiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than 73 days, the court may order a credit to the child support obligation.
When there is a child support award in a specific amount per child, the award for each child shall terminate automatically, without any action by the paying parent, as each child reaches the age of majority, or becomes emancipated, unless the child is a full-time student in good standing in a secondary school or its equivalent, has not reached the age of 19 years, is dependent upon either parent and is unmarried.
When there is a child support award in globo (as a unit rather than separately) for two or more children, the award shall terminate automatically and without any action by the paying parent, when the youngest child attains the age of majority or is emancipated, unless the child is a full-time student in good standing in a secondary school or its equivalent, has not reached the age of 19 years, is dependent upon either parent and is unmarried.
If the child has a developmental disability, child support continues until he/she reaches the age of 22 years, as long as the child is a full-time student in a secondary school.
Legal Separation vs. Separation from Bed and Board as Defined by Louisiana Divorce Laws
Louisiana does not recognize legal separation for non-covenant marriage.
The state does have provisions for Separation from Bed and Board for Covenant Marriages.
Covenant Marriage Separation from Bed and Board
Separation from bed and board in a covenant marriage puts an end to the couple’s conjugal cohabitation, and to the common concerns, which existed between them.
Spouses who are judicially separated from bed and board in a covenant marriage shall retain that status until either reconciliation or divorce.
In a proceeding for a separation from bed and board in a covenant marriage, a court may award a spouse all incidental relief afforded in a proceeding for divorce, including spousal support, claims for contributions to education, child custody, visitation rights, child support, injunctive relief and possession and use of a family residence or community movables or immovables.
Grounds for Separation from Bed and Board
The grounds for Separation from Bed and Board are nearly identical to those for Divorce, with the exception of the last ground. Apart from any other law to the contrary, and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of separation from bed and board only upon proof of any of the following:
- 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 a period of 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 separate and apart continuously without reconciliation for a period of two years
- On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if the habitual intemperance or ill-treatment is of such a nature that it renders their living together insupportable
A woman who has chosen to use the name of her husband may request to change her name back to her former name or she may keep her current name, if she wishes.