Divorce in Louisiana: The Legal Process, Your Rights, and What to Expect

Esq.

Introduction

Ihave been a divorce lawyer for more than twenty years. No one gets married thinking they will one day get divorced. Unfortunately, divorce has become a common aspect of our society. The ending of the relationship is not easy and can be emotionally unpleasant.

My purpose in writing Divorce in Louisiana is to help you through the divorce process. If you decide to proceed with your divorce, this book will help guide you through the process; it will also explain the obstacles you may encounter along the way and offer practical advice for how to deal with them. My goal is to help you understand the process and what to expect so that you can feel more confident and more at ease. If you are knowledgeable and well prepared, you will be better able to deal with the divorce proceedings.

1

Understanding the Divorce Process

No bride or groom walking down the aisle on their wedding day thinks, I will be getting divorced in a few years. Just as a marriage is considered a new chapter of your life, so is going through a divorce. The process of ending your marriage often creates feelings of fear and trepidation. You don’t know what the outcome of your divorce will be. You don’t know what happens during the divorce process. The divorce process does have some measure of predictability. If you understand the divorce process, you can feel a sense of certainty, which can bring a sense of comfort. Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that your divorce will eventually come to a conclusion.

Developing a basic understanding of the divorce process will lower your anxiety when your attorney starts talking about hearings, depositions, or going to trial. The object of this book is to provide you with knowledge, which will reduce your frustration with the length of the divorce process. You will understand why each step is needed and understanding the divorce process will make your experience easier. This book will support you in preparing for what comes next.

1.1 Must I have an attorney to get a divorce in Louisiana?

You are not required to have an attorney to obtain a divorce in Louisiana. However, if your case involves children, support, significant property, or debts, you should avoid proceeding on your own.

If you are considering representing yourself, contact the court in the parish where the action will be pending to determine whether there are any law clinics available to assist you. A person who proceeds in a legal matter without a lawyer is referred to as being pro se, on one’s own.

If you are considering proceeding without an attorney, at a minimum have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.

1.2 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer’s experience and reputation.

Even if you are not ready to file for divorce, call to schedule an appointment right away to obtain information about protecting yourself and your children. Even if you are not planning to file for divorce, your spouse might be.

Ask what documents you should take to your initial consultation. Make a list of your questions to bring to your first meeting. Start making plans for how you will pay your attorney to begin work on your case.

1.3 Is Louisiana a no-fault state or do I need grounds for a divorce?

Louisiana, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is at fault in order to be granted a divorce should you wish to proceed under the no-fault grounds for divorce. Factors such as marital breakdown, fault on the part of the other spouse, infidelity, cruelty, or abandonment are not necessary to receive a divorce in Louisiana. Rather, it is necessary to prove that the parties have been living separate and apart continuously for the requisite period of time.

Although not required, if either party chooses to have a final hearing, then the testimony of either you or your spouse as well as the required affidavits is likely to be sufficient evidence for the court to rule that the marriage should be dissolved. The testimony and affidavits state that you and your spouse have resided apart the required length of time to obtain a divorce.

The divorce can be filed either at the beginning of the required time to live apart or after the parties have already resided apart the required length of time.

1.4 My spouse and I have not lived apart the required length of time and my spouse is cheating on me. Do I still have to live apart the required length of time?

One of the grounds for obtaining a divorce in Louisiana is the adultery of the other spouse. At a hearing on the issue of the adultery, testimony or evidence will be introduced regarding the other party’s infidelity. You would not have to reside apart the required length of time if you are able to prove adultery.

1.5 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Louisiana if the jurisdictional requirements of residency are met. The jurisdictional requirements are discussed in the following question.

1.6 How long must I have lived in Louisiana to get a divorce in the state?

Either you or your spouse must have been a resident of Louisiana for at least six months to meet the residency requirement for a divorce in Louisiana.

If neither party meets the residency requirement, other legal options are available for your protection. If you do not meet the six month residency requirement, talk to your attorney about your options.

1.7 My spouse has told me she will never give me a divorce. Can I get one in Louisiana anyway?

Yes. Louisiana does not require that your spouse agree to a divorce. If your spouse threatens to not give you a divorce, know that in Louisiana this is likely to be an idle threat without any basis in the law.

Under Louisiana law, to obtain a divorce you must be able to prove that you and your spouse have lived separate and apart continuously for the required period of time. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Louisiana.

1.8 Can I divorce my spouse in Louisiana if he or she lives in another state?

Provided you have met the residency requirements for living in Louisiana for six months, you can file for divorce here even if your spouse lives in another state.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction to grant the divorce. Your attorney can counsel you on whether it is possible to proceed with the divorce.

1.9 Can I get a divorce even when I don’t know where my spouse is currently living?

Louisiana law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse’s whereabouts. Utilize resources on the Internet that are designed to help locate people. Check Facebook, Twitter, and MySpace.

Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse’s last known address, as well as any work address or other address where this person may be found. If the sheriff is unable to serve your spouse at the addresses provided, your attorney can request that a curator be appointed to represent your absent spouse. A curator is an attorney appointed to represent your absent spouse. The curator will give notice through publication in a newspaper and will send a certified mail letter to your spouse at their last known address. The curator notifies the court of his/her attempts to find your spouse.

1.10 I just moved to a different parish within the state of Louisiana. Do I have to file in the parish where my spouse lives?

You may file your divorce petition either in the parish where you reside, in the parish where your spouse resides or in the parish of the last matrimonial domicile.

1.11 I immigrated to Louisiana. Will my immigration status stop me from getting a divorce?

If you meet the residency requirements for divorce in Louisiana, you can get a divorce here notwithstanding your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.

1.12 I want to get divorced in my Indian tribal court. What do I need to know?

Each tribal court has its own laws governing divorce. Requirements for residency, grounds for divorce, and the laws regarding property, alimony, and children can vary substantially from state law. Some tribes have very different laws governing the grounds for your divorce, removal of children from the home, and cohabitation.

Contact an attorney who is knowledgeable about the law in your tribal court for legal advice on pursuing a divorce in your tribal court or on the requirements for recording a divorce obtained in state court with the clerk of the tribal court.

1.13 Is there a waiting period for a divorce in Louisiana?

It depends on whether you and your spouse have lived separate and apart the required period of time. If you and your spouse have already lived separate and apart continuously for the required time period, then there is no mandatory waiting period. If you and your spouse and not lived separate and apart continuously for the required period of time, you will be required to live separate and apart 180 days where there are no minor children of the marriage; or 365 days when there are minor children of the marriage.

This waiting period begins on the day that the defendant, the person who did not initiate the divorce process, is determined to have been given legal notice of the divorce. This date is either the day that the defendant is personally delivered papers by the sheriff or the date that the defendant files with the court a waiver of service and citation acknowledging that he or she knows the divorce has been filed with the court.

1.14 What is a divorce petition?

A divorce petition also referred to as a petition for divorce is a document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. The petition will set forth in very general terms what the plaintiff is asking the court to order.

1.15 My spouse said she filed for divorce last week, but my lawyer says there’s nothing on file at the courthouse. What does it mean to file for divorce?

When lawyers use the term filing they are ordinarily referring to filing a legal document at the courthouse, such as delivering a petition for divorce to the clerk of the court. Sometimes a person who has hired a lawyer to begin a divorce action uses the phrase I’ve filed for divorce, although no papers have yet been taken to the courthouse to start the legal process.

Sample Petition for Divorce

CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA

NO. DOMESTIC RELATIONS SECTION NO.

HUSBAND

VERSUS

WIFE

FILED:__________

DEPUTY CLERK

PETITION FOR DIVORCE

I.

Plaintiff, HUSBAND, is domiciled in the Parish of Orleans, State of Louisiana. Defendant, WIFE, is domiciled in the Parish of Orleans, the State of Louisiana.

II.

This court has subject matter jurisdiction pursuant to Louisiana Civil Code of Procedure Article 10 (A)(7) inasmuch as this is a suit for divorce and matters incidental thereto, and one or both of the parties are domiciled in this state.

III.

Venue is proper in this court pursuant to Louisiana Code of Civil Procedure Article 3941 inasmuch as Orleans Parish is the parish where one or both of the parties are domiciled or is the parish of last matrimonial domicile.

IV.

Plaintiff and defendant were married on or about February 14, 2001, in the Parish of Orleans, State of Louisiana. Their last matrimonial domicile was in the Parish of Orleans, State of Louisiana.

V.

There are no minor children of