This essay provides an overview of a variety of laws relating to family law for the state of Louisiana. The essay will provide the pertinent elements and requirements for complying with the selected family law provisions. Since Louisiana is a civil law state, all family law provisions are codified, whether in the Louisiana Revised Statutes or the Louisiana Civil Code. Cases do not constitute or form law as in common law jurisdictions, but rather legislation and custom are the basis for laws.
First, the basics of marriage. Currently pursuant to Article 86, though the definition is to be different in 2016, marriage in Louisiana is defined as a legal relationship between one man and woman created by a civil contract. Article 87 lists the requirements for marriage. The three requirements are a lack of any impediments to marriage, must be ceremony, and free consent of the parties.
As for the matrimonial regime in Louisiana, the default regime is that of community property. Each spouse owns an undivided 1/2 interest in the community property. Spouses may choose to not utilize the default community property regime, but this alteration must be done be a contractual agreement. For this essays purpose, a judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered and a subsequent hearing would be scheduled to determine the division of property upon divorce.
As for prenuptial agreements, the spouses must specify which things are to remain separate and not subject to the matrimonial regime of community property. The prenuptial agreement must be in authentic act form (signed by the both parties, a notary, and two witnesses) and specify what is to remain separate. However Article 98 states that married persons owe each other fidelity, support, and assistance. “Fidelity” means each spouse has a duty to refrain from adultery, but to also submit to each other’s reasonable and normal sexual desires. “Support” includes cost of food, clothing, shelter, as well as other necessities and operation of ordinary conveniences such as telephone, home appliances, and an automobile. “Assistance” includes the personal care to be given an ill or infirm spouse. These three duties owed cannot be contracted against, even with a prenuptial agreement, nor can any agreement between the spouses violate these duties.
Divorce is one legal way that a marriage can be terminated. There are two types of divorces: an article 102 and 103 divorce. For a 102 divorce where there are no minor children of the marriage, the divorce will be granted by the court if the parties have been separate and apart for 180 days after service of the petition for divorce. If there are minor children, then the parties must be separate and apart for 365 days prior to filing the petition for divorce. This is similar to a “no fault” divorce, so no answer is required by the other spouse. Then the party who provided service will invoke a rule to show cause. A hearing will be set and the divorce finalized by the court. A divorce cause of action is extinguished by the reconciliation of the parties. Reconciliation is when both parties agree that they affirmatively intend they are trying to correct marriage. Reconciliation is an affirmative defense and the burden of establishing it is on the party claiming reconciliation by a preponderance of evidence. Also, a joint petition of both parties to extinguish the cause of action will stop the divorce proceedings.
A 103 divorce is an immediate divorce. This divorce will be granted if the parties have been separate and apart for 180 days prior to filing the petition for divorce and there are no minor children of the marriage, or 365 days prior to filing the petition for divorce if there are minor children of the marriage. The other 103 divorce possibilities is if the other spouse has committed adultery. The adulterer can utilize the defenses of conniving and condonation; that is, respectively, the non-adulterer spouse consents to the other spouse to commit adultery or the non-adulterer spouse does nothing after finding out of the affair and forgives the adulterer spouse.
Further 103 divorce possibilities are if the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor, the other spouse has 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, or lastly after a contradictory hearing or consent decree, a protective order or an injunction has been issued against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse. After filing the 103 divorce petition, the other party has 15 days to provide an answer to service or can waive service of the petition. Then the preliminary default divorce is granted.
As for spousal support (alimony), the court may award interim periodic support or may award final periodic support to a spouse who is in need of support. A spouse may not receive final periodic support if they are at fault for the divorce (committed adultery). Final spousal support cannot exceed 1/3 of the paying spouse’s income and the recipient spouse must show a need. A prenuptial agreement can waiver a spouse’s right to final periodic support; however, a prenuptial agreement or fault of a party will not disbar awarding of interim spousal support.
For interim spousal support, this will be paid by one spouse to the recipient spouse until the rendition of the judgment of divorce. The monthly amount for interim support will be the amount equal to the standard of living of the spouse during the marriage and even the spouse at fault can receive interim spousal support. The obligation of one spouse to pay spousal support, both interim and final, is extinguished upon the remarriage of the recipient spouse, the death of either party, or a judicial determination that the recipient spouse has cohabited with another person of either sex in the manner of married persons.
Lastly, switching to custody, there are five different types of custody that can be awarded to parents: First the court looks at agreement between both parties and verifies if it is in the best interest of child. If there is no agreement, then there are four options for the court to decide which option is in the best interest of the child: Joint, Split, Sole (one children with one parent and the other child with the other parent), or 3rd party. Since a parent has a paramount right to their child, for sole custody, the desired-custodial party must show by clear and convincing evidence that the other parent is not fit for that parent to be deprived of that paramount right. The income sharing model is utilized to calculate the amount that the non-custodial parent is to pay for child support.
I hope this essay provided pertinent information for related family law topics. All the above content is codified in various sources, mainly the Louisiana Civil Code. Though Louisiana and its civil law origins creates diverse legal consequences, this essay enables common law practitioners to draw parallels and difference between the two systems in relation to divorce topics.