Filing a Petition for Divorce
The initiatory document is called Petition for Divorce. The Petition must allege at least one specific ground for the termination of marriage. The Petition is filed in the District Court of the Parish by the filing spouse who is called the Petitioner/Plaintiff while the responding spouse is called the Respondent/Defendant.
Divorce proceedings in Louisiana may be initiated by a spouse who has met the divorce residency requirement. This residency requirement normally concerns a spouse who has recently moved or has plans of moving in Louisiana.
The spouse who will file the Petition for Divorce must be a resident for at least 12 months prior to filing.
Grounds for Divorce
The two general classifications of grounds for divorce are: 1) No-Fault Based Ground; and 2) Fault Based Grounds.
There is only one basis which comprises the “No-Fault Based Ground” and that when the spouses have already lived separate and apart from each other for at least 180 days prior to filing of the Petition, when there are no children involved, and one year if there are children involved. This ground does not require proof of marital breakdown, fault or any other bases for divorce used in other states or jurisdictions.
On the other hand, the following are the acts which comprise “Fault Based Grounds”: 1) Adultery; 2) Felony conviction; 3) Abandonment for a period of at least 1 year; 4) Physical or sexual abuse; 5) Living separate and apart for at least 2 years; and 6) The spouses 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.
Division of Property upon Divorce
In Louisiana, which is a “community property” state, the properties, and property rights, debts and obligations of spouses are usually settled in a Marital Settlement Agreement or incorporated in the Final Judgment of Divorce decree issued by the District Court. In any case that the spouses do not reach an agreement as to the division of its properties and debts, the community property shall be divided by the court equally.
Community property comprises all the properties and debts acquired from the date of the celebration of marriage until the final decree of divorce. Gifts, inheritances and properties owned by the spouses prior to the celebration of marriage shall pertain exclusively to the respective spouses and shall not form part of the community property.
In dividing the properties and debts of the spouses, due consideration is given to the peculiar circumstances of each marriage such as the capacity and needs of the respective spouses.
Nonetheless, both spouses may rightfully ask for the award of the marital home in their favor.
The court will consider the certain aspects in determining who between the spouses should be awarded the marital home such as value of the property and economic needs and circumstances of the spouses. Likewise, the court may consider on each case the contributions that a spouse has made to the acquisition and improvement of the community property together with its future earning potentials.
However, the court is usually inclined to award the marital home to the spouse who will have custody over the children.
The court shall always rule upon the issue of joint or sole custody based on what serves the best interests of the child. Thus, unless otherwise proven or unless by agreement of the parents, it is presumed that joint custody is in the best interests of the child. For this reason, the court may order the parents to attend a court-approved parenting seminar.
Consequently, the following order of preference is established:
(1) to both parents;
(2) to either parent (without regard to race or sex of the parents);
(3) to the person or persons with whom the child has been living; or
(4) to any other person that the court feels suitable and able to provide an adequate and stable environment for the child.
The factors listed below shall be considered in determining what serves the best interests of the child:
(1) physical, emotional, mental, religious, and social needs of the child;
(2) capability and desire of each parent to meet the child’s needs;
(3) preference of the child, if the child is of sufficient age and capacity;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
(7) the wishes of the parents;
(8) the child’s adjustment to his or her home, school, and community;
(9) the mental and physical health of all individuals involved;
(10) the permanence as a family unit of the existing or proposed custodial home;
(11) the distance between the potential residences;
(12) the moral fitness of the parents; and
(13) any other relevant factor.
If the parents agree on a joint custody, they must submit a plan which designates:
(1) the child’s residence;
(2) the rights of access and communication between the parents and child; and
(3) child support amounts.
Still, a parent who is denied custody is entitled to visitation rights except when that parent has subjected the child to physical or sexual abuse.
The obligation to support any child rests upon both parents. In determining the amount and kind of support, the following are the factors to be considered are the child’s needs and the parent’s means and resources.
Alimony or commonly known as support may also be given temporarily to one of the spouses. Permanent periodic alimony may be granted to the innocent spouse who is without fault which shall not exceed one-third (1/3) of the guilty spouse’s income.
For purposes of determining the propriety and amount of spousal support, the following are considered:
(1) the effect of child custody on the spouse’s earning capacity;
(2) the time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment;
(3) the income, means, and assets of the spouses and the liquidity of the assets;
(4) the comparative financial obligations of the spouses;
(5) the age and health of the spouses;
(6) the needs of the parties;
(7) the earning capacity of the parties;
(8) the duration of the marriage;
(9) the tax consequences of the parties; and
(10) any other relevant circumstances. Permanent alimony may be revoked upon remarriage or cohabitation.